
    Case 65 — PETITION EQUITY
    January 16.
    McQuerry v. Gilliland.
    APPEAL PROM LINCOLN CIRCUIT COURT.
    1. Devise .op Another’s Property — Trusts—Limitation.—When the?devisee, under a will, accepts property of the testator devised to him, he thereby relinquishes his right to px-operty of liis own which the testator has undertalcexx to devise to another; and he being directed by the will to convey his property to such other person, it becomes his duty to do so upon his acceptance of the property devised to him; and as he thereafter holds the title in”tnist, the statute of limitations does not apply to an action to compel him to eonveyjjthe title, the trust being a continuing one.
    2. Jurisdiction op Action to Compel Conveyance op Land. — The-performance of an equitable obligation, or an obligation enforceable-by an action in personam and not in rem, may be enforced wherever the chancellor may obtain jurisdiction of the person, although such obligation may relate to land situated in another State. Therefore, an action will lie in this State to compel one who holds the legal title to land situated in another State to execute a conveyance to those to whom he may be under obligation to convey the title.
    WILLIAM LINDSAY son appellant.
    1. In order to show heirship in mother, brothers and sisters, the petition must aver want of children and their descendants. It is not to be presumed a man died without issue. "When the fact is necessary to make out a complainant’s title it must be averred and proved. (Dudley v. Grayson, 6 M.on., 263.)
    2. A Kentucky court will not adjudge a conveyance of realty situate in Iowa when, if the suit were instituted in Iowa, the* courts of that State, upon a like stale of facts, would not decree the conveyance, and when the Kentucky court would not afford the relief if the land were situated in Kentucky.
    2. To entitle the appellee to recover, she must show that her father’s will has been proved and recorded in the State of Iowa, and in accordance with the statutes of that State. (Gen. Stats., chap. 113, sec. 28; Thomas v. Arthur, 7 Bush, 245.)
    A will must be executed and recorded according to the lex rei sitae. (“Wharton on Conflict of Laws, 644; Jones v. Robinson, 17 Ohio St., 171; Kerr v. Moore, 9 “Wheaton, 566.)
    4. It is to be presumed the laws of Iowa, upon the subject of probating and proving foreign wills .that undei'take to devise real estate, conform to the laws generally governing such subjects in England and the American States.
    W. H. PETTITS on samu side.
    1. The action is barred by limitation; (Gen. Stats., chap. 71; Iowa Code; Phillips v. Shipp, &c., 81 Ky.; Manion v. Titworth, 18 B. M., 60.)
    2. As title to land lying in Iowa is the subject-matter of the action, the courts of this State have no jurisdiction. (Page v. McKee, «fee., 3 Bush, 137; “Watkins v. Holman, 16 Peters, 25, 26; Massie v. Watts, 6 Cranch, 148, referred to in note to sec. 82, Pomeroy’s Equity Jurisprudence; Stanton v. Moore, 26 Iowa, 434; Ring v. McCown, 3 Sanford; Perry on Trusts, section 72.)
    3. No trust was created or grew out of the original transaction in the entering and locating of the land by appellant, or in the receiving of the patent by him. An express trust in lands can not be created without writing or evidence in writing. (Perry on Trusts, see. 83; Spence’s Eq. Juris., vol. 1, p. 497.)
    It is not a constructive trust, as no fraud is charged. (Perry on Trusts, sec. 166.)
    
      There was no resulting trust, because tbe transaction was between father and son, and was not without consideration, blood being a good consideration. (Perry on Trusts, secs. 143-147; Pomeroy’s Equity-Jurisprudence, sec. 1039; Spence’s Eq.,'vol. 1, p. 511.)'
    ’4. The testator 'could not devise the land, because he had, neither at tha time of the'execution of the' Will nor at the time of ‘his'death, title or possession. (Pomeroy’S Eq. Juris., 369; Mclntire v. Hughes, 4 Bibb, 186;' Spence’s Eq. Juris., vol. 2, p. 215; American Law Review, vol. 17, p. 176.) " ' ■'
    5. The words of request used by the testator are addressed- to hip son William, in his individual capacity, and not in his executorial capacity, and the words used are not sufficient to amount to a complete and effectual devise of the land mentioned to the testator’s son, Milton Green. (Spence’s Eq. Júris.J vol. 2, p. 595.)
    6. It is now too late to seek to enforce election after the whole estate of the testator has been distributed. (Pomeroy’s Eq. Juris, sec.. 469; Spence’s Eq., vol. 1, p. .640'; Williams on Executors, sec. 1237.)
    O. H. WADDLE, J. T. MAY, T. Z. MORROW for appellee.
    1.'Tbe original contract created an enforceable trust; but if not, the appellant having accepted the provisions of the will of John McQuerry, ■ in which he was directed to make the conveyance now sought, he is estopped tc assert title in- opposition to that directed to be passed by the- will. ' If a testator devises to- other parties property which belongs to a devisee, and that devisee elects to take under the will, he is estopped: from-' claiming the property devised to which he had title. (Clay v. Hart, 7 Dana, 1; Dawson v. Hays, 1 Met.,. 460; Duncan v. Prentice, 4 Met., 217; Mel-lvain v. Porter, &e., MS.. Op., Peb: 23, 1888.)
    '2. If a devisee partially complies with'the. conditions of a will imposed upon him, this is an election, and he must comply with the remainder. He can not hold under and against the'will. (Gore v. Stevens, 1 Dana, 204.) • , . ■ i ■
    3. A suit in equity will lie in one State to compel a conveyance of land situated''in another State. (Wharton’s Conflict of Laws, sec. 288; Story’s Eq. Juris., secs. 743, 899, 900; Pomeroy’s Eqhity, secs. 134, 135, 298; Massie v-. Watts, 6 Cranch, 148; Burnley v. Stevenson, 24 Ohio St., 474; McBawrin v. Salmon, &c.,‘ 11 B. M., 97; Page v. McKee, 3 Bush, 137; Prank v. Peyton, 82 Ky., 15Ó.)
    4. If a decree rendered'in a State having jurisdiction'of the parties and of the subject-riiatter is offered as evidence, or pleaded as the foundation of a right in any action in the courts of another State, it is entitled to the same force and effect it had in the State where it was pronounced. (Mills v. Duryea, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat.;' 234; McGiloray & Co. v. Avery, 30 Vt., 538; Burnley v. Stevenson, 24 Ohio St., 47i.)
    
      5. The statute of limitations, of this State does not apply in an action seeking the enforcement of a trust. (Caldwell v.'Cal'divell, 7 Bust, ■ :515.) - ' ' • ' ' , , ...
    6. Limitation does not run. against remaindermen during the-existence of the particular estate. (Kellar, &c., v. Stanley, 9 Ky. Law Rep., 888.)
    7. The statute of limitations of Iowa can have no application to this case. • 'The law of the State .where the action is pending goyerns the remedy,1 . . (Templeton v. Sharp, 10 Ky. Law. Rep., 499; McArthur v. Go'ddin, 12 Bush, 274; Lahatt, &c., v. Smith, &c., 83 Ky., 599.)
    8. No written memorial is necessary for the enforcement of a1-trust. (Caldwell v. Caldwell, 7 Bush, 515.) . .., ;
   JUDGE BENNETT

delivered the opinion oí? the court.

The record, as we think, establishes .substantially the following state of .case: In 1849 the appellant, William McQuerry, and .his ..father, John McQuerry, ■ bought two-land warrants, .of one.-hundred and. sixty acres each, which had .been issued by the. Federal Government to . the -.soldiers. of the Mexican war.- These warrants were for land . in the. State of . Iowa. The appellant, by an arrangement with .his father, .went to.the State, of Iowa, in .company.with ,his younger brother, Milton Green McQuerry, then about seventeen years old, for the purpqse of, locating these warrants, - and of obtaining patents, two of which were .to be in his .own .name, and two .in .the . name of his father, John McQuerry. But, if, from any cause, patents on the tw.o warrants could not, be obtained in the father’s .name, they were to be.obtained..in the appellants name, for .the benefit of the father. The. appellant, on arriving at the land office, in the State of Iowa, found,1 owing, to the absence o,f his .father from .the State, and'not having his written power of attorney, that he could not obtain the patents in his father’s name; and, pursuant to the alternative agreement, caused them to be issued in his own name; but failed thereafter to convey the land to his father.

His father, in 1852, died, leaving a last will, which was recorded in Pulaski county; and the appellant was named in the will, and qualified as one of the executors, and entered apon and continued to discharge his duties as executor of the will. He was also one of the devisees of the will, and received the portion of the estate devised to him.

The testator, among other things, willed to his wife, during her life, this Iowa land, remainder to his son, Milton Green McQuerry, and recited the fact that hé bought the two warrants, and that the appellant haá to have the patents issued in his own name, and requested him to convey the land to his wife for and during her life, remainder to Milton Green McQuerry.

Milton Green McQuerry died soon after the war, without having had issue, and the widow of the testator, John McQuerry, having died in 1884, the appellees brought this action in equity to compel the appellant to convey to the appellee, Mrs. Gilliland, sister of the appellant, one-third of said land as a co-heir, with the appellant and the children of Mrs. Gilmore, deceased, sister of the appellant and appellee, of said Milton McQuerry. Said children, it is alleged and proven, received a conveyance from the appellant, in 1872, to a quantity of said land, equivalent to two-thirds thereof.

It is to be observed that the appellant is one of the devisees under the will, and accepted its provisions, and is one of the executors thereof; also, supposing that the testator was mistaken as to owning, or ever having owned any interest in, said Iowa land, that the -appellant was bound to respect, and it, in fact, belonged to the appellant, yet it is a fact that the testator devised a portion of Ms own estate to the appellant, and directed (the request is, in tMs will, equivalent, to a direction) the appellant to convey this land to the widow for life, remainder to Milton Green McQuerry. The testator, in making tMs direction, assumed to dispose of this land as his own ; and, in connection with •other estate, certainly Ms own, devised portions of the whole to all of Ms children; and, but for reckoning the whole as his, he, doubtless, would have made a -different disposition of the estate that did, in fact, belong to Mm. So the question arises, supposing that said land belonged to the appellant, but the testator, having assumed to dispose of it by will, and the appellant having been made a devisee under that wñl, and having accepted its provisions, has he not thereby -elected to surrender all right to said land, and to make the conveyance according to the direction of the will?

The principle is well settled where a testator devises Ms own estate, or a part of it, to a person,, and also -devises that person’s estate to another, and that person accepts the estate thus devised to him, such person will not be heard to assert his old right; but, by thus accepting the provisions of the will, he relinquishes his old right to the other person. He can not enjoy the bounty conveyed by the will, and, at the same time, claim his old right. The intention of the testator, in such case, is, that both bounties shall take -effect, and the conscience of the devisee is affected -by this intention; and, having accepted the bounty, it would' be a fraud upon the testator to allow him to thus accept the- bounty; and’, at the -’same-tibie, hold on to the bounty that the' testator intended fob another; and, but for the'belief that such other would receive tlie bounty, the devises would not have''been thus Made.' It‘is to'prevent this fraud that equity puts‘this donee'to his election-; ánd, having--made his election’to accept the provision' for his benefit, he thereby elects to abide by all of the'provisions of the will, and surrender all right" inconsistent with them, and to do Whatever the will directs him" to do, in order to Carry out its provisions. The right of the appellees is not barred by‘time, for the trust continued ail the' time. ’

The appellant contends that' as the will was- not recorded in Lucas county, Iowa, where the land was situated, the appellees can not maintain this' 'action. Tins' contention is based upon the fact that as Milton Green McQuerry could not have'maintained "an- action in the State of Iowa for the recovery of the-land, because the will Was not recorded' in that State, it . follows that his heirs can not maintain this action' to compel a conveyance. 'Wé can not agree to this' contention. It is well settled that the performance of an equitable obligation, or an obligation that may be enforced by'an action in personam'arid not in rem, may be enforced whenever the chancellor may obtain" personal jurisdiction of the person, without regard to the fact that the real estate, to which such obligation relates, is situated in another State.

In the case of Massie v. Watts, 6 Cranch, 148, the case going to the Supreme Court from this State, the court said: “Either in consequence of contract or as trustee,, or as the holder of a legal title, acquired by any species of mala yicZes practiced on the plaintiff, the principles of equity give the court jurisdiction wherever the.person-may be; and the circumstance that a question of title may be involved in the inquiry, and. may even constitute the essential point on which the case depends, does'not seem sufficient to arrest that jurisdiction. * * * The court is of the opinion, that, in case of fraud, of trust, or of contract, the jurisdiction of a court, of chancery is sustainable wherever- the person be found, although lands not within the jurisdiction of that.court may be affected by the. decree.”,.

In.such case -the■ subject-matter is not that-of the recovery of land. In other words, it is not an action in rem. The "court" need not"have the land before it iri' order' to be- ’ able to render a judgment; blit' the action is in personam, for the purpose of enforcing a personal obligation of'contract or of trust. It is 'true that the. title to land is to...be affected by the decree, in so far as it compels the party to-convey; but* as said," by reason of his' trust or contract duty, he is personally, obliged-to convey, and that duty-may be discharged in one State as well- as another, although the land may not be situated in such State. .It.is the breach of trust or contract' to convey that may' be complied with,’ without regard to the location of the land, that gives -the right of action in -personam.- If Milton Green McQuerry were .alive, he, for. the foregoing reasons, could maintain this action in this State,, and he being dead, the appellees can maintain it.

The judgment is affirmed.  