Shull Ex Rel. Shull v. Rigby

*6 Stacy, C. J., after stating the ease: That a court of equity has the power to order the sale of property belonging to a minor, in a proceeding properly constituted for the purpose, admits of no doubt. Tyson v. Belcher, 102 N. C., 112, 9 S. E., 634; Rackley v. Roberts, 147 N. C., 201, 60 S. E., 975; Settle v. Settle, 141 N. C., 553, 54 S. E., 445. But what interest does the petitioner own in the locus in quo f Clearly not an unencumbered fee, for during the lifetime of A. Byron Shull the executors and trustees have “the right to cut, sell and in anywise dispose of the standing trees and timber, marl, clay, oil and any other products found on the said plantation when in their judgment it may be wise and expedient so to do, and to pay out of the proceeds of the sale of same the sum of five thousand dollars to the Doctor Taylor Hospital at Washington, North Carolina.” - And this right is not destroyed by the alleged subsequent merger of the life estate with the remainder. Lummus v. Davidson, 160 N. C., 484, 76 S. E., 474; Haywood v. Trust Co., 149 N. C., 208, 62 S. E., 915; Walker v. Sharpe, 68 N. C., 363; Dick v. Pitchford, 21 N. C., 480. We are not now called upon to say whether the legacy to the Washington Hospital is demonstrative, and therefore payable out of the corpus of the estate under the principle announced in Shepard v. Bryan, 195 N. C., 822, 143 S. E., 835. Nor is the proceeding one in which all the parties are asking that the property be sold. It would seem, however, that a sale of the timber and other products found on the plantation, either with or without the land, during the lifetime of A. Byron Shull, whether made by the trustees or under order of court, would necessarily enure to the benefit of the Washington Hospital to the extent of its interest. In this respect, the judgment was not erroneous. It will be observed that the trustees are not directed to sell so much of the timber, etc., as may be necessary to pay the bequest to the Washington Hospital, but they are empowered to sell, during the lifetime of A. Byron Shull, any or all of the standing timber, etc., and other products found on said plantation, when in their judgment it may be wise and expedient to do so, and, out of the proceeds arising therefrom, to pay to the Washington Hospital the sum of $5,000.00. What would become of the excess, if the timber and other products should bring, upon sale by the trustees during the lifetime of A. Byron Shull, more than enough to pay the bequest to the Washington Hospital? This calls for a construction of the will in which the residuary legatees, who are not parties to the present proceeding, may be interested. At least their presence would seem to be necessary to insure to the purchaser an unimpeachable title. The cause, therefore, will be remanded for further proceedings not inconsistent with this opinion and as the rights of the parties may require. Error and remanded.