Lockwood v. Stradley

Bidgely, Chancellor. This case has been submitted to the Chancellor upon the bill and answer,without debate, and without any authorities being produced to him on either side, and it seems to be apparent that all the parties in this suit consider it to be a matter of course that a’decree should be made for the sale of the real estate of the testator, to give effect to his will. One of the defendants, Sarah C. Brown, who is one of the heirs of the testator, is an infant; and that circumstance alone, according to the apparent disposition of the other defendants, who are also heirs and are of full age, has made it necessary to apply to this Court for the sale of the land; for nod the whole estate descended to those alone, that is, to the heirs of full age, they might have conveyed the land without the aid of this Court. But the infancy of Sarah C. Brown would render the title of the purchaser under the other heirs incomplete. The object now is to sell the land, notwithstanding the renunciation of the executors and the infancy of one of the heirs, according to the intention of the testator as expressed in his will. But this cannot be effected finally, so as to conclude Sarah C. Brown,the infant; for the answer of the infant, by her guardian, will not conclusively bind her. In the case of Wrotterly vs. Bendish, 3 P. Wms. 235, — 304 — note, e, it was ruled by Sir Joseph Jekyll, that where a defendant puts in an answer to a bill brought by an infant, who does not reply to it, the answer must be taken to be true, in regard that the defendant, for want of a replication, is deprived of an opportunity of examining witnesses to prove the answer, and he ought not to suffer from such omission in the plaintiff. But in Legard vs. Sheffield, 2 Atk. 377, Lord Hardwicke said that an infant can admit nothing,and therefore his not replying does not affect him; and he directed evidence to be read to make out a pedigree stated by a defendant in his answer,—the infant plaintiff not replying to the answer,—that he might judge whether it was clearly made out that the defendant was an heir at law. The hearing must have been upon bill and ■ answer, and the answer was not taken as true against the infant. And in Bunbury, 338, Strudwick vs. Pargiter, an infant, it was ruled that no exceptions could be taken to an infant’s answer put in by his guardian; by which he could not be concluded and might amend when he came of age. And so, in Copeland vs. Wheeler, 4 Bro. Ch. Rep. 256, it was admitted that exceptions will not lie to an infant’s answer. The course in such a case is for the cause to proceed, and, should there be a decree against the infant, to give him a day after he comes of age to show cause against the decree, provided he has such cause. By this will of Thomas Candy the real estate is not devised to any one, but has descended to the heirs at law, and consequently they are properly made parties; and, according to the authorities, a day must be given to the defendant, Sarah C. Brown, who is an infant. In Cook vs. Parsons, Prec. in Chan. 184 : 2 Vern. 429, on a bill of review, an error was assigned that the lands were decreed to be sold pursuant to the will, without giving a day to the heir, an infant, to show cause after he came of age ; but this was held to be no error, because the land was devised to trustees, so that nothing descended to the infant, and there was no decree against him — 305 — to join, and the trustees might have sold without coming to the Court for direction ; yet it is there said, that if they do come it may be a question if the infant ought not to have a day to show cause ; but it was not needful there as nothing descended to him,nor was there any decree against him to convey. In this suit, there will be a decree against the infant Sarah C Brown, and she will be directed to join in the conveyance. Scarth v. Cotton, Cas. temp. Lord Talbot, 198, is a remarkable instance of the paroi demurring. An estate had been conveyed in trust to be sold to pay debts and incumbrances upon it, and then in trust for the grantor’s own right heirs. The grantor died. A bill was filed by a bond creditor for the sale of the estate against the trustee and the heir, an infant. The infant by her answer insisted that being an infant, the paroi ought to demur because, although it was a trust for paying off incumbrances which then affected the same, yet as to the residue it was only assets. The Lord Chancellor thought that although in this case it would be to the infant’s prejudice to take advantage of the law, because the interest would outrun the rents and profits of the estate; yet, it being mentioned in the pleadings, he said he could not avoid ordering it, although the counsel would have waived the objection. And so an order was made to take an account of what was due to the plaintiff, but all proceedings to stay until the infant defendant came of age, and the plaintiff to pay all parties their costs except the infant, and to have them again out of the estate. In Blatch vs. Wilder, 1 Atk. 420, 421, it was adjudged that where lands are devised to trustees to be sold for payment of his debts, and the heir is an infant, he has no day given him; otherwise,when there is no devise expressly to any particular person, for in that case he has his day. There, the land was not expressly devised, and it was directed that the infant, the customary heir of copy-hold premises, should join in the sale thereof on attaining the — 306 — age of twenty-one years, unless within six months after .he shall attain such age, he show good cause to the contrary,—and the purchaser of the copy-hold, in the mean time, to hold and enjoy the same. In Uvedale vs. Uvedale, 3 Atk. 117, I. W. by his will directs his real estate to be sold after his wife’s death and the money arising therefrom to be equally divided between R. U. and five other persons The bill is brought by the widow, a creditor. R. D". is an infant, and as heir at law to the testator had the legal interest in the estate. Although the usual practice is for the paroi to demur, yet it being for his (R. U’s) interest that the estate should be sold, and as in this case there was a trust to be performed and the Court can see to the proper application of the money, Lord Hardwicke decreed a sale, but declared at,'the same time that he did not mean by this direction to break in upon the rule of paroi demurring. There was a decree of foreclosure against an infant on a mortgage, with a day to show cause, in Goodier vs. Ashton, 18 Ves. Jr. 83, but this has been altered in Mondey vs. Mondey, 1 V & B. 223, where an order was made directing, in case the mortgages consent to a sale, an inquiry whether it would be for the infant’s benefit. See Fountain vs. Caine & Jeffs., 1 P. Wms. 501. It is evident from all the cases, and from principle too, that when the estate directed to be sold has not been devised away, but has descended to the heirs at law, they should be decreed to join in the sale, (an infant heir after attaining the age of twenty-one years),and that a day should be given to the infant, after arriving to the age of twenty-one years, to show cause. In the present ease, the testator has not devised the estate to any one, and.therefore it is the estate of the heirs; and the sale to be decreed will be of their legal estate, subject to the trust created by the will of the testator and for the purpose of having the trust executed. — 307 — The principal question under this will is whether this is a trust to be executed by this Court, or whether it is amere power which this Court cannot execute. The testator devised thus,—“It is my will that my execu- “ tors hereinafter named, and the survivor of them, do sell “ and dispose of all my estate, real and personal, whereso- “ ever and whatsoever, at such time or times as they, or “ the survivor of them, condo it to the best advantage, and “ either at public or private sale, as they or he may think “ in their or his discretion. All moneys arising from such “ sales, as also from all other my estate whatsoever, I “ direct to be placed out and kept at use, on good and suffi- “ cient landed security, for the benefit of the hereinafter “ described legatees; and after the payment of my debts “ and the necessary expenses in settling my concerns and “ the specific legacy above mentioned, then I will that all “ the rest, residue and remainder, together with the inter- “ est which shall accumulate thereon, be divided into “ seventeen equal parts or shares, three of which parts or “ shares I give and bequeath to the children of my eldest “ sister Susanna Stradley which are now born, and to those “ which shall hereafter be born to her, who shall attain to “ the age of twenty-one years, to be paid to them when “ a,nd as they shall severally attain that age in equal shares “ as tenants in common.” So, he gave eight parts of said money and interest to the children of his sister Sophia, born or to be b.orn, and the remaining six parts to the children of his sister Ann Walker, born or to be born; and then he provided for the death of any of the children. By the renunciation of the executors the trust has not: been executed, and the administrator, William K. Lockwood, cannot execute it by any authority he now possesses. The authority to sell was given to the executors. It was a confidence placed in them by the testator. It was personal, and cannot be performed by the administrator. Yates vs. Compton, 2 P. Wms. 308, was a case very similar to this. — 308 — There, the testator devised that his executors should sell land, and with the money arising from that sale and the surplus of his personal estate should purchase an annuity of £100 to J. S. for life, out of which she should maintain her children ; and he gave £30 to each child, to be raised out of said annuity; and the personal estate he should die possessed of and the over plus he gave to J. S., and made B. and C. executors. The testator died, and the said J. 8. died within three months after. The executors renounced. Administration with the will annexed was granted to Tates, the plaintiff, who was also the administrator of J. 8. the intended annuitant. He, with the children of said J. 8. brought the bill against the heir of the testator to compel him to join in a sale of the lands; and it was decreed that the land should be sold. How if the administrator could have sold the land no bill would have been brought, nor any decree made, for that purpose. In Pennsylvania, Moody’s lessee vs. Van Dyke, 4 Binn. R. 31, it was adjudged that administrators with the will annexed could not sell where the executors had renounced, and such is the law here. As the executors have renounced, and as Lockwood, the administrator with the will annexed, has no authority to sell, this becomes a trust to be executed by this Court.:— for this land and personal estate is clearly and explicitly given to the children of the testator’s sisters. The Master of the Rolls, in Pierson vs. Garnett, 2 Bro. Ch. Rep. 38, says that Lord Thurlow in Harland vs. Trigg, 1 Bro. Ch. Rep. 142, and in Wynne vs. Hawkins, 1 Bro. Ch. Rep. 179, has laid down the true principle, that where the property to be given is certain and the objects to whom it is given are certain, there is a trust to be executed. See 2 Bro. Ch. Rep. 226. In the eases of The Duke of Marlborough vs. Godolphin, 2 Vesey, Sr. 61 : Harding vs. Glynn, 1 Atk. 469 : Brown vs. Higgs, 4 Ves. Jr. 708 ; 5 Ves. Jr. 495 : 8 Ves. Jr. 561, and — 309 — in many other cases there cited, much controversy arose on the non-execution of a power and a trust, and on the difference between a power and a trust; but as, according to all those cases, this is a trust, there can be no doubt that the Court can cause it to be executed. A decree was entered for the sale of the lands and premises described in the bill, to be made by William K. Lockwood, a trustee appointed for that purpose by the Chancellor; and that the proceeds of such sale, after the payment of all costs in the cause, should be applied by the said trustee according to the trusts of the last will and testament of Thomas Candy, deceased. The decree further directed that the heirs at law of the testator( who were parties to the cause,) should join with the trustee in a deed conveying the premises to the purchaser thereof. And with respect to the infant, Sarah C. Brown, who was one of the heirs at law, it was decreed as follows, viz; “ And it is ordered, adjudged and decreed by the Chan- “ cellar, that the said Sarah C. Brown, one of the defend- “ ants, do, when she, the said Sarah C. Brown, arrives at “ the age of twenty-one years, convey and assure to such “ purchaser, his heirs and assigns forever, by a good and “ sufficient deed, the said lands and premises, with the “ appurtenances, and that she acknowledge the same in “ due form of law. And it is ordered, adjudged and decreed “ by the Chancellor, that this decree is to be, and shall be, “binding upon the said Sarah 0. Brown, the infant, unless “ she,.the said Sarah C. Brown, shall in six months after “ she shall attain the age of twenty-one years (being served “ with process for that purpose,) show unto this Court good “ cause to the contrary; and in the meantime that the “ said purchaser do hold and enjoy the said land and “ premises with the appurtenances ”