| Del. | Jun 20, 1884
It appears, by the proceedings in the Court below, that the case before this Court is one where the ancestors of the heirs at law defendants,'and husband of the other defendant, was seized at the time of his death intestate of an equal undivided half part of the premises described in the bill as a trustee for the complainant in and by a constructive trust arising out of the circumstance of the said premises having been purchased by the intestate for the use and benefit of himself and the complainant,
The bill prays that the heirs at law of the intestate be decreed to hold a moiety of the property in trust for the complainant; that a conveyance to him be decreed, and that partition be made among the parties entitled.
The decree establishes the trust, and directs the conveyance prayed for; but, as to the minors aforesaid, provides, pro forma that it is to be binding upon those who were minors at its date, unless they or either of them, being served with process to show cause against it, shall, within six months after their respective majority, show unto the Court good cause to the contrary.
The causes of appeal are, substantially, these—that the Chancellor erred in postponing the time when the decree should take effect as to the minors until they respectively come of age; or in other words, allowing them a day in court; and that he also erred in not decreeing partition as prayed for in the bill.
It is true, as contended for by the complainant’s solicitor, that in the case of what is called a dry trust, one without any benefit to the trustee, the decree is to be performed by infant trustees like those sui juris, no day in Court being allowed them to show cause against it. But a different rule prevailed where trustees were infants and had any beneficial interest in the trust property—for example, claimed to hold it absolutely at law. In such a case, the law was, that as their answers, filed as they were by guardians of the usual kind or ad litem, neither admitted nor denied anything, but submitted their interests to the Chancellor, to be decided according to equity, they should be allowed six months after they arrived at age to appear and oppose the decree, if made against their supposed interests. As this practice was very inconvenient, postponing the actual acquisition of the legal title to a day, some
The act of assembly of this State, to be found published in Hall’s Digest, page 109, provides for decrees to be made against infant trustees for conveyance of the trust estates, but limits its operation to cases where .the trust is “ only for others.” Such is the law now, with the important modification made by striking out in the Revised Code of 1852, republished in 1874, the word only above quoted. The present law is to be found in the republication at page 571, and is contained in the following section of Chap. 95:
“ Sec. 13. Any person under the age of twenty-one years, having real estate in trust for others, may, by direction of the Court of Chancery, given upon hearing all the parties concerned on the petition of those for whom such infant is trustee, or of the guardian of such infant, convey and assure such real estate in such manner as the said court shall direct, to any other person; and such conveyance shall be as good and effective in law as if the said infant was of full age; and such infant may be compelled to execute such order, in like manner as trustees of full age are compellable to convey or assure trust estates.”
It seems quite sufficiently certain that dropping the word “ only ” from the old act, as by the above section, must have been intended to conform our legislation to that of England under the act of parliament above referred to; and that now here, as there, where a suit is instituted to establish a trust, and the parties are heard in it, a decree against an infant is as effectual as are against persons sui juris. This, in fact, is no hardship upon a minor, as by the practice of the Court he is entitled to a rehearing if applied for in six months after he arrives at age, and also to an appeal at any time before the expiration of two years from the time his disability ceases. No distinction exists now, with respect to the jurisdiction over infant trustees, between express and constructive trusts. See Walsh and another v. Richard J. Walsh and others, 116 Mass., 377" court="Mass." date_filed="1874-12-02" href="https://app.midpage.ai/document/walsh-v-walsh-6417899?utm_source=webapp" opinion_id="6417899">116 Mass., 377, and the cases there cited. This case established a different rule from that laid down in Coffin v. Heath, 6 Metc., 76, and under a statute similar in effect to ours above quoted. We are therefore
With respect to the cause of appeal—that the Chancellor did not decree partition—we are of opinion that the' ancient jurisdiction of the Court of Chancery to order partition between tenants in common is not affected by the statute law of the State, where, in adjudicating between parties holding joint interests in law it will promote the several interests of the litigants that partition should be made, and it is prayed for in the bill, and the assistance of the Court for some of the purposes peculiar to its jurisdiction are needed. We do not see that any aid from the Court is requisite in this case; and, therefore, shall decline to decree partition, leaving the appellant to his remedy under the statute—which is so much better than that by bill, as in it valuation and sale can be had where partition would be detrimental.