Hutchinson v. . Hutchinson

Faircloth, C. J. David Parks died in 1873, having devised onedialf of the residue of his estate to his wife for life and in remainder to his grandson, D. P. Hutchison, and the *672 other half of the residue to his said grandson, with power to sell the Bxicldiouse place and the Silas Orr tract, when he thought best to do so. Prior to' August Term, 1891, M. A. Brem became the owner of the interest and estate of the said I). P. Hutchison in the said land, known as the “David Parks place.” In 1891, the said M. A. Brem instituted this action against the defendants, who were the only persons limvng and interested in the subject of the action for the sal© of said land, the proceeds to be reinvested for their mutual advantage. In 1891, seven and one-tenth acres of the land was sold and title decreed in this action, about which there is now no contention. In 1893, the said M. A. Brem died, leaving a will, in which she directed as follows: “Item 1. I give, devise and bequeath my entire estate (real and personal) to' my daughter, Sarah W. Hutchison, for and during the term of her natural life, and at her death to' such child or children as she may have surviving her, and in case any child or children of my said daughter should die leaving child or children, them in that event such child or children shall take the share that their deceased parent would have taken.” D. P. Hutchison and wife, Sarah, were made parties plaintiff, as executor and executrix of Mrs. M. A. Brem’s will. It seems that all the parties now interested desire the sale of the land ten be made for better investment. The chief question is, can a court of equity decree a sale with the consent of all interested parties now living, of land devised as above stated. We are compelled by authority and just reasoning to' answer in. the negative. The power of the Court to sell the land of minors, etc., when they are properly represented before tire court, has never been questioned since the Act of 1827, chap. 33, now Code, sec. 1602. But the difficulty in e'ases like the present is that there is no one in existence upon whom the court can *673 act, to protect such contingent interest as may arise in tibe future. Tbe devise is not to Sarab W. for life, and then' to her children, but to such children as may survive her. She and some of her children are living, soma dead,' and others may be born, and some now alive may predecease thedr mother. So no one cam say now who will taha the remainder, and, such taker not being now known, noi one can represent him, and it follows that no sale can be made binding such remainderman. Thera are cases in which all interests are found in classes, when the court will act if one of each class is before the court. This is allowed because it is the policy of the law and the disposition of the courts to unfetter alienation, and give property free circulation. The question was presented by a similar devise in Watson v. Watson, 56 N. C., 400, and the power of the court was denied. That decision has been followed in numerous instances, presenting strictly the same question. Williams v. Hassell, 74 N. C., 434; Justice v. Guion, 76 N. C., 442; Ex Parte Miller, 90 N. C., 625. The sole ground of the demurrer was that the court, upon the admitted facts, was without authority to decree a sale. We think the judgment overruling the demurrer was erroneous. Eeversed.