that at the time of plaintiff's attempted levy and sale, James H. Vallely had no interest in land, but only a right to receive the bequest given him by will? 9 There is no doubt that an equitable conversion worked by a will takes place on the death of the testator, unless the conversion is expressly directed to be made at a specified time in the future, or upon the happening of a particular event. 9 Cyc. 837, and cases cited. By the great weight of authority, it is no exception to the rule that land directed to be sold and turned into money is considered as money from the death of the testator, because the period of sale is remote and the actual conversion cannot be made until the time arrives. Where the sale is directed to be made at some future time or upon the happening of a future event which is certain to happen, the general rule is still that the conversion is deemed to take place as of the date of the testator's death. Underwood v. Curtiss, 127 N. Y. 523, 28 N. E. 585; 3 Pomeroy, Equity Jurisprudence, § 1162. There are authorities, however, holding that in such case, the change does not take place until the time arrives or the event occurs. Cyc. 838. Note to Beaver v. Ross, 17 Ann. Cas. 640 [140 Iowa, 154, 118 N. W. 287, 20 L.R.A. (N.S.) 65]. In this note it is stated that the great weight of authority supports the rule that where land is directed by a testator to be sold at, within, or after a definite future time, it is to be regarded as converted into personalty as of the time of the testator's death, and that all property rights must be determined as if actual conversion had taken place at that time. The mass of authorities cited to the proposition amply support the statement of the author. Beaver v. Ross is a fair example of the doctrine, and in its facts is very like the case at bar. The testator devised to his wife a life estate in his real property, and directed that after her death it and the personal property remaining be sold, the proceeds to be divided among his heirs. Before the sale took place, a judgment creditor of one of the heirs levied upon the debtor's interest in the land. It was held that there was an equitable conversion of the realty into personalty as of the date of the testator's death, and that the heir had no estate or interest in the land that was subject to the lien of the judgment. The case is well considered and the leading authorities are cited. It is also reported in 20. L.R.A. 65, with an elaborate note in which the authorities are discussed. There is no doubt that the ruling of the case is supported by the decisions in the Federal court, and in most of the states, and we think it is the correct rule. We have not overlooked the authorities that hold to the contrary. Some take the broad ground that conversion takes place for no purpose until the time arrives at which the sale is directed, while others decline to apply the doctrine or "fiction" of equitable conversion where the rights of intervening creditors are involved. Wilson's Ex'r v. Rudd, 19 Ind. 101; Simonds v. Harris, 92 Ind. 505; Comer v. Light, 175 Ind. 367, 93 N. E. 660, 94 N. E. 325; Smith v. Hensen, 89 Kan. 792, 132 Pac. 997; Eneberg v. Carter, 98 Mo. 647, 12 S. W. 522, 14 Am. St. 664; Williams v. Lobban, 206 Mo. 399, 104 S. W. 58; Estate of Walkerly, 108 Cal. 652, 41 Pac. 992, 49 Am. St. 97; Bank of Ukiah v. Rice, 143 Cal. 265, 76 Pac. 1020, 101 Am. St. 118. These are eminently respectable authorities and support plaintiff's right to recover in the case at bar. But, as we have stated, the great weight of authority is to the effect that, when there is no discretion left in the executor as to whether a sale shall be made, and the time in the future when it is to be made is definitely fixed, or the event is certain to happen, the conversion takes place as of the date of the testator's death, and that this determines not only the rights of the legatees, but those of assignees or creditors of a legatee. There is nothing in Ness v. Davidson, 49 Minn. 469, 52 N. W. 46, or in Kolars v. Brown, 108 Minn. 60, 121 N. W. 229, 133 Am. St. 410, that is at all in conflict with this. We hold, therefore, that the conversion took place at the date of Hugh Vallely's death, and that thereafter the real estate formerly owned by him, excepting the life estate of the widow, was personal property. It follows that plaintiff's judgment was not a lien on the land, because the judgment debtor had no interest therein, and that the levy and sale on execution amounted to nothing. Plaintiff might have reached his debtor's share of the proceeds of the sale by garnishment, attachment, or execution properly levied, but he did not avail himself of these remedies. Clearly he is not entitled to maintain this action against the administrator without showing that he is the owner of the fund, or that he possesses a right to it superior to the right of defendant. Order affirmed. W. B. KELLOGG v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.1 A foreign administrator, who has no right to maintain an action for wrongful death in the state of his appointment, nor in the state where the injury occurred, and consequently not in this state, is not aggrieved by an order in a suit brought by him for the benefit of the next of kin, denying his motion to substitute the next of kin as party plaintiff. Action in the district court for Ramsey county by the administrator of the estate of John Nichols, deceased, to recover $10,000 for the death of her intestate while a passenger upon one of defendant's trains. From an order denying plaintiff's motion to substitute Delia Skinner as plaintiff, and to amend the complaint, plaintiff appealed. Appeal dismissed. Samuel A. Anderson and A. F. Storey, for appellant. HOLT, J. On September 23, 1910, John Nichols lost his life in the state of Kansas, while therein a passenger on one of defendant's trains. Plaintiff was appointed administrator of Nichols' estate by the probate court of Douglas county, Wisconsin, and, having filed an authenticated copy of his appointment in the probate court of Ramsey county in this state, brought this action for the benefit of Delia 1 Reported in 147 N. W. 667. Skinner, the mother and only next of kin of said John Nichols, alleging that the defendant's train was, through its negligence, derailed and wrecked, causing the injuries to its said passenger Nichols resulting in death. The defendant answered alleging, among other defenses, that, under the laws of Wisconsin, the plaintiff could not therein maintain an action for wrongful death occurring outside the state, and that, under the decisions of the courts of Kansas, an administrator who is unable to maintain such action in the state where appointed cannot maintain it in Kansas, ergo plaintiff must fail here. Plaintiff's demurrer to this defense was overruled. He apparently acquiesced in the decision. However, after substitution of attorneys, application was made in behalf of Delia Skinner, who, under the laws of Kansas, may maintain the action in her own right, to have her substituted as party plaintiff, and to amend the complaint setting forth the laws giving her the right to sue. From the order denying the application, plaintiff appeals. Plaintiff is met with the objection that he is not a party aggrieved by the order and hence cannot appeal. The motion to substitute Delia Skinner as plaintiff is supported by her affidavit, wherein she asks to be permitted to become the plaintiff and have the complaint amended; but appellant insists that he made the motion. It is doubtful whether one who comes into court with no cause of action, and no basis for ever asserting any upon the facts stated, has any standing to ask substitution of another who, upon those and additional facts, may have a cause of action. But, it would seem, there ought to be no doubt that such an one is in no manner aggrieved by a denial of the motion. Appellant has no personal interest in the suit, and none in a representative capacity as was determined by the demurrer. He had no standing, right or duty to represent Delia Skinner in the courts of Wisconsin, nor here. Therefore he cannot be aggrieved by an order refusing her to become a party. An appellant must have an interest in the appeal, either personally or in some legitimate representative capacity. Burns v. Phinney, 53 Minn. 431, 55 N. W. 540; Cornish & Co. v. West, 89 Minn. 360, 94 N. W. 1082. Appellant relies on Wood v. Lenawee Circuit Judge, 84 Mich. 521, 47 N. W. 1103, but it will be seen that there the application for substitution was made by those who should have been originally the proper plaintiffs and upon their appeal it was decided that substitution should have been permitted. The case of Pugmire v. Diamond Coal & Coke Co. 26 Utah, 115, 72 Pac. 385, sustains appellant. But we are not inclined to follow that decision. It may, however, be said that in that case one of the original plaintiffs was the proper party plaintiff in her representative capacity, and she was substituted as such upon the application of the original parties, and their appeal from the order of the court refusing the same was entertained. We do not intimate, or decide, that it is improper practice to permit the person for whose benefit the action is brought to be substituted, when necessary, for his legal representative, or vice versa, but we do hold that the one appealing must be the one who is harmed by the order appealed from. We conclude that the appeal should be dismissed. So ordered. 'ALEXANDER BOYD v. CITY OF DULUTH,1 June 5, 1914. Nos. 18,784-(257). Judgment notwithstanding verdict for plaintiff. 1. Evidence in an action for damages for personal injuries received by a child, who was struck by a timber which fell from the supports of a public bridge under which he was playing, considered and held such that the court would not have been warranted in ordering judgment notwithstanding the verdict, as against one to whom defendant owed any duty in the premises, on the ground that no negligence in the construction or maintenance of the bridge was shown. 1 Reported in 147 N. W. 710. Note. On the question of municipal liability for injury by defects or obstructions on bridge, see note in 20 L.R.A. (N.S.) 571. And as to municipal liability for injury to travelers by dcfective bridges through defects in plan of construction, see note in 67 L.R.A. 268. 126 M.-3. |