Kelly v. Neville

Ethridge, J., delivered the opinion of the court. (After stating the facts as above). It is earnestly insisted by the appellant that the court was without jurisdiction to grant the relief prayed and that the chancery court has no authority to sell property held under remainder or reversion and, especially, where possible remaindermen are yet unborn. There is division of authorities among the different states of the Union as to whether the courts of equity have inherent jurisdiction to entertain suits of this kind. "We dealt with a case presenting many of the aspects of the present case in the case of Crawford v. Solomon, 131 Miss. 792, 95 So. 686. In that case we said: “Section 159 of the State Constitution confers full jurisdiction on the chancery court of minor’s business, and we see no reason why the chancery court would not have jurisdiction in a proper case to order the sale of property of minors held in remainder” — citing 14 R. C. L. p. 270, section 43; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann. Cas. 1915A, 561; section 2419, Code of 1906 (Heming-' way’s Code, section 1980). But in that "case we held that relief could not be granted because the will there involved expressly prohibited real estate from being sold during the life of the life tenant, the wife of the testator. The reasoning of the authorities cited in this opinion upon that proposition is very strong and convincing';. In a case note .to Heady v. Crouse, 203 Mo. 100, 100 S. W. 1052, 120 Am. St. Rep. 643 the editor of the Am. St. Rep. series, at page 656 et seq. of that report, says: — 450 — “As stated in the beginning of this note, the weight of authority in the United States is to the effect that courts of chancery have inherent power to decree a sale of an infant’s real estate. This rule is firmly fixed in Alabama. Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; Thorington v. Thorington, 82 Ala. 489, 1 So. 716; Gassenheimer v. Gassenheimer, 108 Ala. 651, 18 So. 520. In Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13, the court said: ‘Whatever may be the doctrine prevailing-in the court of chancery in England, or whatever contrariety of opinion or doubt may prevail in the different states as to the jurisdiction of a court of equity to decree a sale of the real estate of an infant, in this state the jurisdiction must be regarded as existing. The jurisdiction does not spring from, nor is it dependent upon, the character of the estate, whether absolute or contingent ; whether in possession, or the possession postponed until the happening of a future event. It rests upon the power and duty of the court to protect infants, to take care of and preserve their estates while under disability debarring them from the administration of property. ’ “Equity has original jurisdiction to order an infant’s land sold for the purpose of otherwise investing the proceeds, if the lands are deteriorating in value and will continue to deteriorate, or if they do not yield income sufficient to keep down burdens to which they are subject, or if the income is greatly disporportionate to their market value. Gassenheimer v. Gassenheimer, 108 Ala. 651, 18 So. 520. “In Arkansas, independently of statute, the general jurisdiction over the persons and property of minors belongs to the chancery courts, and no other court has authority to order the sale of the land of a minor, nor to direct an investment of his funds in land. Myrick v. Jacks, 33 Ark. 425. The jurisdiction of equity over the estates of wards in chancery is broad, comprehensive, and plenary in Georgia, and, in the absence of any legis — 451 — lative provision to the contrary, its courts of equity have inherent jurisdiction to order a sale of the legal estates of minors for reinvestment whenever for the minor’s interests. Dampier v. McCall, 78 Ga. 607, 3 S. E. 563; Richards v. East Tennessee, etc., Ry. Co., 106 Gra. 614, 33 S. E. 193, 45 L. R. A. 712; Reed v. Alabama & G. Iron Co., 107 Fed. 586, a Georgia case in the United States Circuit Court, where the above rule is stated and affirmed. “In Illinois, courts of equity have full jurisdiction, independently of statutory provision, to order the sale of the lands of an infant. In Smith v. Sackett, 10 Ill. 534, it was early announced that the jurisdiction of a court of equity to order the sale of the lands of an infant whenever his interest requires it, is indisputable, and it has also been maintained that the powers of courts of chancery, by virtue pf their general jurisdiction, over the estates of infants, to authorize the conversion of their real estate into personalty when it is clearly for their interests, is not only supported by the current of authority in this country, but is so well settled in this state as to be no longer an open question. Hale v. Hale, 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247. A court of equity, by virtue of its general jurisdiction, and independently of statute, has power to authorize the conversion of a minor’s property from real to personal, or personal to real, when such conversion is clearly to their interest. Gorman v. Mullins, 172 Ill. 349, 50 N. E. 222; King v. King, 215 Ill. 100 74 N. E. 89. A court of equity, under its general powers, has jurisdiction over the estates of infants and others under disability, and may, on proper application, order the sale of an infant’s unproductive lands to raise means for discharging’ an encumbrance on productive property m which it has a reversionary interest in fee, though the latter is situate in another state, where the bill seeking such relief shows that such a course is for the best interest of the infant. Allman v. Taylor, 101 Ill. 185. “The depreciation in rental value of real estate from — 452 — two liiiiidred and fifty dollars per month at the time of the testator’s death, to a sum barely sufficient to pay taxes, insurance, and repairs, a corresponding depreciation in market value and probably still further depreciation, before minors, who are to take the fee on coming of age, can attain majority, are sufficient grounds to authorize a court of equity to order the sale of the property for a fair cash value and the investment of the proceeds in interest-bearing securities. Gorman v. Mullins, 172 Ill. 349, 50 N. E. 222. “It was decided in an early case in Maryland that a court of chancery, independently- of statute, has jurisdiction to authorize the sale of infants’ estates and to convert their real estate into money (Dorsey v. Gilber, 11 Gill & J. 87), and this ruling; was followed in Downin v. Sprecher, 35 Md. 474, and Roche v. Waters, 72 Md. 264, 19 Atl. 535, 7 L. R. A. 533. And while a court of chancery, prior to the jurisdiction conferred by statute, had power, under some circumstances, to'sell an infant’s lands, where his interests demanded it, it could not decree a sale where an adult had a part interest in the lands. Roche v. Waters, 72 Md. 264, 19 Atl. 535, 7 L. R. A. 533. ‘ ‘ A statute may, and- sometimes does, vest in courts oi equity general jurisdiction to dispose of the land as well as the chattels of infants for their benefit, and when this is the ease there can bo no question of the power of equity to decree the sale of the infant’s land. Williams v. Harrington, 11 Ired. 616, 53 Am. Dec. 421; Rowland v. Thompson, 73 N. C. 504; Sutton v. Schonwald, 80 N. C. 198, 41 Am. Rep. 455. “In South Carolina it is also firmly established that courts of equity have inherent jurisdiction to order the sale of the land of an infant when it is made to appear to be for his benefit. Clifford’s Ex’r v. Clifford, 1 Desaus. 115; Huger v. Huger, 3 Desaus. 18; Stapleton v. Langstaff, 3 Desaus. 22; Bulow v. Witte, 3 S. C. 308. The jurisdiction of chancery to sell and convey an infant’s es — 453 — tate, it wa.s decided in Bulow v. Buckner, Rich. Eq. Cas. 401. is now too firmly established to be shaken. It ought, however, to be exercised with caution, and the court, before ordering the sale, must be satisfied of its necessity or expediency to the infant’s interest. “A court of equity has power to alienate and sell either vested or contingent estates of infants who are properly made parties before it. Bofil v. Fisher, 3 Rich. Eq. 1, 55 Am. Dec. 627. And such court has power to alienate the contingent title of unborn remaindermen or the contingent titles of interested persons in esse, whose names and residences are unknown, and a sale made under such a decree vests the fee simple title in the purchaser. Bofil v. Fisher, 3 Rich. Eq. 1, 55 Am. Dec. 627. “In Tennessee it was first announced that the court was prepared, though not without some difficulty, to assert the inherent jurisdiction of a court of equity to convert the estate of infants, by changing realty into personalty, and personalty into realty. Case of Brown, 8 Humph. 200. But such jurisdiction was denied in a later case, and it was held that such power in a court of equity arose solely by virtue of the statute. Rogers v. Clark, 3 Sneed, 665. In the latest case from that state the court has decided that in estates in which the rights of minors are involved, when a sale becomes necessary, courts of chancery have inherent jurisdiction and discretion to sell either the realty or personalty, as appears best for those concerned. Jones v. Sharp, 9 Heisk. 660.” In the case of Bofil v. Fisher, 3 Rich. Eq. (S. C.) 1, 55 Am. Dec. 627, the South Carolina court in a remarkably strong opinion held that a court of equity has power to sell either vested or contingent estates of infants who are properly made parties before it, and has power to alienate the contingent title of unborn remaindermen or the contingent titles of interested persons in esse, whose names and residences are unknown and that a sale made under such a decree vests a fee-simple title in the pur — 454 — chaser. After setting out the facts in the will involved, in that case, the court said (3 Rich. Eq. 5, 55 Am. Dec. 630, 631) : “If, under the circumstances of this case, an order for sale in chanceiy should be insufficient to confer a valid title upon the purchaser, I apprehend the title to an inconceivable amount of property in South Carolina would be put in peril. And were there stronger reasons than do actually exist, to doubt the authority of this jurisdiction in the particular mentioned, the court would hesitate long before it would announce a judgment which would shake, perhaps, one-fourth of the titles in the state. “The difficulty, if any exists, does not lie in the first branch of the appeal, which relates to the right of the court to sell the contingent interest of :Mary ,'J. Bofil, who is an infant child of Paul Bofil, and a party defendaiat, by guardian ad litem, to the bill. The right of the court to sell either the vested or contingent estates of infants, who can be and-are properly made parties before it, cannot at this day be questioned. But the question is whether the court has the power, by its decrees, to alienate the contingent titles of unborn remaindermen, who, from the nature of things, cannot be made parties, or be represented in the proceedings before the court; or to alienate the contingent titles of persons who, though in esse, are resident in other states, or in foreign lands, whose residences and even whose names are unknown. “To say that the court could not under circumstances like these convey away the fee would be to assert a doctrine that would render conditional limitations and contingent remainders an intolerable evil to a growing and prosperous community. Thus to shackle estates without the power of relief, unless every person having a contingent and possible interest could be brought before the court, as a party complainant or defendant, according'to the usual forms and ordinary practice of the court, would, be to sacrifice the rights and interests of the present generation to those of posterity, and of citizens to aliens. If — 455 — the whole property of the country were thus situated, it is obvious that all improvement and advance would be completely checked. And this check upon progress and improvement would be in direct proportion to the extent to which this state of things exists. The case before the court is an apt illustration. Here are valuable unimproved lots, in a thriving and prosperous town, which the life tenant cannot with a due regard to his interest improve, and the remaindermen cannot, because their rights are contingent and may never vest. Here also is a suffering family, who may obtain relief by the action of the court. And they are the first objects of the testator’s bounty. Is there no power in the state by which the titles of estates may be unfettered from the contingent claims of unborn remaindermen, and their rights not extinguished, but transferred from the property itself to a fund arising from the sale of the property ? 1 think there should be; I think there is. ’ ’ We think that the bill is entertainable, and that the chancery court has jurisdiction to preserve the rights and property of all the parties whether born or unborn. The court, however, will preserve the estates of all the parties born or unborn under proper decree, and will direct the proceeds realized from the sale of this property so as to carry out the intention expressed in the will. Of course, the court will see before making a sale, or at least before confirming it, that the property brings a fair price, and will see that the funds procured from the sale are properly invested in other property so as to carry out the provisions of the will for the benefit of all parties interested. It will be the duty of the parties to the suit, especially of the complainant, to satisfy the court as to the value of the property and as to the investments. The court will no doubt appoint a competent and suitable commissioner, and will have the aid of all parties in administering this trust. The judgment of the court below will be affirmed. Affirmed.