83 W. Va. 415 | W. Va. | 1919
This suit was brought by C. L. Brown, as trustee of William J. Brown, against said William J. Brown, Ephraim W. Brown and his children and said C. L. Brown in his own right and Mrs. Helen M. Fowler, his only child, under the provisions of chapter 17, Acts 1911, made a part of chapter 71, Barnes’ Code of West Virginia, for the purpose of selling a tract of 539 acres of land -in which said William J. Brown was given a life estate by the will of Robert S. Brown, the father of William J., Ephraim W. and C. L. Brown. All persons now in being, having any kind of interest or estate, vested or contingent, in the land, are made parties defendant, all of whom are alleged to be sui juris. Demurrers to the bill, interposed by Ephraim W. Brown and by some of his children, were sustained and the court, being of the opinion that the bill could not be cured by amendment, dismissed it, and plaintiff has appealed. The cause is now up for review on plaintiff’s motion to reverse the decree, which motion is made
The demurrer challenges the sufficiency of the bill on four several grounds, viz.: First, because the wife of William, J. Brown is not made a party to the bill; second, because Charles L. Brown is not such a trustee as is authorized by the statute to maintain the suit; third, because the court is not authorized to decree a sale of the land without the consent of all parties interested therein who are sui juris; and fourth, because the bill fails to allege sufficient grounds for a sale.
There is no merit in the first objection for the obvious reason that the wife of William J. Brown has no sort of interest in the land and can never acquire any by virtue of her marital relation. Her husband is not now nor has he been, at any time during his marriage, seized of an estate of inheritance in the land, neither is it possible,, under the will of his father, for him to be seized of such an estate at any future time. Hence, by no possibility can his wife ever become entitled to dower in the land.
Before considering the other points raised by the demurrer, it is necessary to consider some of the facte averred in the bill, the truth whereof is admitted by demurrants. Robert S..Brown, deceased, by his will exhibited as a part of the bill, directed that his lands, known as the General George Washington survey, lying along the Ohio River and extending back on the hills and consisting of numerous tracts but constituting one compact body, be divided into three parts equal in value, by lines running from the river to the back Washington lands. To Ephraim W. Brown he gave a life estate in the upper lot, to C. L. Brown a life estate in the middle-lot, and to William J. Brown a life estate in the lower lot,, with remainder after the death of each life tenant “to the-heirs of his body lawfully begotten,” and provided that, in the event he should have no such issue living at his death, ■the land wras to go to his two remaining sons for life, with remainder to their heirs. The devise to William J. Brown is in the following language:
! ‘ And the said lower or third tract of land next to Ravens-wood I wall and bequeath to my dear son William J. Brown*418 for and during Ms life, but subject to the management and use thereof hereinafter directed, with remainder at Ms death to the heirs of his body, lawfully begotten, but if my said son William J. Brown shall die without issue living at the time of his death, then said lower parcel of land shall pass to 'my said sons Ephraim and Charles for life, with remainder to their heirs, per sterpes, lawfully begotten.”
Testator provided for a like division of Ms “back lands” into three equal parcels, one of which was to be allotted to each of his three sons “as may be most convenient, or as they may agree among themselves.” These parcels were likewise subject to the same limitations and provisions as the river or front lands, and all of the devises were subject to the dower right of testator’s widow, who is now deceased. The remainder of his lands he disposed of in the following language:
“I direct that all my other lands and my town property in Ravenswood shall be divided equally between my said three sons in fee simpde, that is to say and with this provision that one-tMrd thereof shall pass absolutely in severalty to my said son Ephraim, and that the other two-thirds thereof shall be allotted and pass jointly to my said sons William and Charles to be rented out and managed, or sold and conveyed by them jointly and for their joint benefit, and I make this provision because of the fact that my dear son William J. Brown has been from infancy an invalid in health, and I therefore affectionately commit the trust of the management of his share and interest in my estate under this will to his brother, the said Charles L. Brown trusting to his kindness and sense of justice to do at all times what may seem best in the interest and for the comfort and happiness of his said brother William J. Brown, and full power is hereby given the said William J. and Charles L. Brown to sell and convey all or any part of the lands and property hereinbefore devised to them jointly, in fee simple.”
The right and power to sell, it is observed, is limited to the lands devised to William J. and C. L. Brown in fee.
The bill avers that in a suit in chancery instituted in the circuit court of Jackson county by William J. Brown ■against the said C. L. Brown and all the other parties to the
“It was the plain and manifest intention of said will to create.an express trust in the hands of said C. L. Brown as a trustee for the use and benefit of the plaintiff, and that under said will said C. L. Brown is entitled to the use, possession and management of the real estate derived by plaintiff in severalty under said will and that said C. L. Brown as trustee is possessed of the legal title to said real estate, and that the plaintiff has the equitable title only thereto. The Court is further of the opinion and doth decree that said C. L. Brown as trustee is invested with a personal discretion as to the management of said trust; a discretion that a court of equity cannot control so long as said trustee acts in good faith and with honesty. It is therefore further adjudged, ordered and decreed, that, as to the one-third of the home farm of said R. S. Brown mentioned in the will as devised to said W. J. Brown, and the adjoining back lands, said C. L. Brown shall retain possession of the same as trustee: and he is directed to do what he may in his discretion deem best for the interest, happiness and comfort of said plaintiff as directed by said will paying the taxes on said land, and keeping the same in repair, and accounting to plaintiff for the residue if any of the rents, issues and profits to be derived from said real estate And it is further decreed that said C. L. Brown as trustee shail annually account to said plaintiff .in person, or before a commissioner of accounts of this county, for the said rents, issues and profits of said home farm lands, and he shall be entitled to a reasonable compensation for his services as such trustee. ’ ’
We are unable to see, in Anew of the language of the will devising the loAArer one-third of the land to William J. Brown, how the court could have so interpreted the language as to vest in C. L. Brown the legal title to the land as trustee for William J. Brown. But it is not necessary for us to deter
“Such bill may be filed by any of the following persons: (a) # # * (bj Any person in whom. alone or with others a contingent remainder would vest, either at law or in equity, if the contingency or event upon wHch the remainder is to vest, or determining who the remainderman or remaindermen are, should happen at the time of the commencement of the suit. ’ ’
The contingency, on the happening of which both Ephraim W. and C. L. Brown would become vested with a legal life estate in the land of William J., is the death of William J., without lawful issue living at his death. It is, therefore, clear that both C. L. and Ephraim W. fall witMn the class of persons described in sub-section (b), and either one of them is authorized to bring a suit in his own right.
We come now to a consideration of the third objection to the bill raised by the demurrer, wMch is, that certain ones of the defendants, all of whom are sui juris, object to a sale. In reply to this objection, counsel for plaintiff insist that they have not such interest in the land as entitles them to make the objection. Section 8 of said Act, Sec. 24b (8) of the Code, reads as follows:
“If it be clearly shown by the pleadings and proofs that the interests of all persons having any vested, contingent or expectant estates or interests in said property will be promoted by the sale, lease or mining lease of the land, oil, gas,*421 coal or other minerals to be sold or leased, and the court shall be of the opinion that the rights of no person interested will be materially injured or prejudiced, the court may, with the consent of all persons in being having any vested estate or vested interest in said land, oil, gas, coal or other minerals to be sold or leased, decree the sale, lease, or mining lease of such land, oil, gas, coal or other minerals in such manner and on such terms and in such parcels as may be deemed most beneficial to all persons interested.”
The learned counsel for plaintiff have filed very exhaustive briefs, citing many authorities to sustain the proposition that demurrants have no vested interest or estate, and, therefore, are not of that class of persons whose consent is a prerequisite to the right of the court to decree a sale. Strictly speaking, according to the technical rules respecting vested and contingent remainders and executory devises, it may not be said that demurrants have a vested estate. But the question is not so much what particular kind of estate or interest they have, under the rules of the common law, as it is to ascertain in what sense the legislature used the terms “vested estate or vested interest” in the particular act in question. In order to determine this it is necessary to consider the general scope and purpose of the Act. Section 1 reads as follows:
■ ‘ ‘ That whenever there is either at law or in equity, in any land, or in any oil, gas, coal or other minerals, any -contingent remainder, or any vested remainder, which is liable to open and let in after-born children or to open and let in members of any class, or any executory interest, or executory devise, or any base, qualified, conditional or limited fee, or any other qualified, conditional, limited or determinable estate, or interest, it shall be lawful for the circuit court of the county in which the land, oil, gas, coal or other minerals, or any part thereof, to be sold or leased, are situate, upon a bill filed by any of the persons specified in section two of this act, to decree a sale, lease, or mining lease of such land, or of any such oil, gas, coal or other minerals, or of any one or more of them, as hereinafter provided.”
This section describes the character or quality of estates or interests in land, which must exist in order to entitle a person
Courts of equity had no inherent power to sell lands even of persons under disability, whatever their estates therein might be. It is only by virtue of statutes in Virginia and this State, which have existed from very early times, that jurisdiction for such purpose has been conferred upon them; and in such cases the jurisdiction can be invoked only when it is clearly shown that the interest of such persons will be thereby promoted, and the rights of no other persons interested will be violated. Such statutes have been upheld on the theory that the legislature has the power to authorize a conveyance on behalf of persons under disability when it is shown that their interests will be promoted thereby. But we seriously doubt the constitutional right and power of the legislature to authorize .a court to sell the lands, or any vested interest therein of a person who is sui juris, without his consent, simply for the purpose of reinvesting the funds for his benefit. The jus disponendi is a property right which the policy of the law has always been to allow the owner, wheir sui juris, to determine for himself. From time immemorial it has been one of the fixed principles of the common law, to guard jealously individual property rights, and especially is this true in respect to estates of freehold in land.'
It is unnecessary to determine the character of interest the
For the reasons stated, appellant’s motion will be overruled and the decree affirmed.
Affirmed.