151 Ga. 195 | Ga. | 1921
There is no question as to the right of the life-tenant, Julia Scales Walton, to convey her interest in the land. The sole question is as to the jurisdiction of the court of equity to order a sale of the fee, before termination of the life-estate, that would be binding upon the contingent remaindermen, including persons now in life and possible unborn children of one of those now in life. No trust is involved, and the title under consideration that is sought to be divested is the plain legal title of contingent remaindermen. In Wilson v. Sullivan, 81 Ga. 238, 245 (7 S. E. 277), it was said: " The test of jurisdiction to entertain a bill for injunction is not whether good cause for granting the injunction is set forth in the bill, but whether the court or its organ, the judge, could grant it for any cause. If the tribunal applied to can grant the injunction for any cause, then any question about cause is not a
In a recent case, Coquillard v. Coquillard, 62 Ind. App. 426 (113 N. E. 474), it was held: “Where a testator devised a life-estate in an undivided one-half of certain lands to each of two sons, with the remainder in fee to the children, if any be born, of
“ We are thus brought face to face with the question whether the court, under the circumstances, was authorized to direct the sale of the real estate as against testator’s sons’ children not in being. In approaching this question, it should be remembered that in an action for partition, conceding that this proceeding must be regarded only as such, resulting in a division rather than in a sale of the lands, the owners are not divested of any title or given any new title. Their respective shares are merely ascertained and set off to them in severalty. Avery v. Akins (1881), 74 Ind. 283. If such a proceeding results in a sale of the land as indivisible, the various estates and interests therein are merely transferred to the fund. § 1261 Burns 1914; § 1204 R. S. 1881. In cases where titles are complicated by limitations and contingencies, both private and public interests may, under some circumstances, require the sale of the involved real estate, even as against persons not in being. In such a situation, courts are sometimes impelled to act by expediency and practical necessity, binding the interests of person not in being by recourse to the principle of representation. The Court of Appeals of South Carolina, in holding that a tribunal of competent jurisdiction may by its decree bind the contingent titles of remaindermen not in being, where all interested persons who could be made parties are brought before the court, uses this language: ‘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 pariy complainant or defendant, according to the
“ The following language is used at page 51 of a valuable editorial note to Downey v. Seib (1906), 8 L. R. A. (N. S,) 49: ‘The complication of human affairs has become such that it is impossible for courts to act strictly on the general rule not to bind the interest or declare the right of any man in his absence. Cases arise in which, if you hold it necessary to bring before the court every person having an interest in the question, the suit could never be brought to a conclusion. The consequence would be that, if the court adhered to the strict rule, there would in many cases be a denial of justice. This has induced the courts to sanction a relaxation of the rule. And accordingly they have said: If we can be satisfied that we have before the court persons whose interests are the same as the interests of those who are absent, we will be content to hear the cause upon the argument of such persons; and, if we are then satisfied that the case has been fairly and honestly presented, we will order the distribution of the fund on the representation of the persons present. Powell v. Wright (7 Beav. 444).’
“ In a case involving the contingent title of persons not in being, the Court of Appeals of New York said: ‘Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand not only for themselves, but also for the persons unborn. This is a rule of convenience, and almost of necessity. The rights of persons unborn are sufficiently cared for, if. when'the estate shall be sold under
“ In discussing the doctrine of representation and its application, Judge Story says: ‘ And as it is sufficient to bring the first tenant in tail before the court, if in being, whether he be plaintiff or defendant in the suit; so, if there be no such tenant in tail in being, the first person in being, entitled to the inheritance, should be made a party; and if there be no such person in being, then the tenant for life; and in such a case, the decree made will bind the other persons not in being. Thus, if there be a tenant for life of an undivided share of an estate, with remainder to his unborn sons in tail, the tenant for life may maintain a bill for partition, and the decree will be binding upon the sons, when they come in esse. So if there be a tenant for life, remainder to his first son in tail, remainder over; and the tenant for life is brought before the court before he has issue, it is settled in equity that the contingent remaindermen are barred, and (as has been said) from necessity. So, where there are contingent limitations and executory devises' to persons not in being, they may in like manner be barred by a decree against a person claiming a vested estate of inheritance.’ Story, Eq. Pleading, § 145. The same author says that, while there are exceptions to the rule, ‘the cases within the exception must, however, stand upon peculiar equities and interests not affected by the same circumstances which attach to the prior parties.’ Id. § 146.
“ On the subject of exceptions, Mr. Freeman says: ‘ An English case recognizes an exception to this principle of virtual representation, by denying its applicability in cases where the person seized in fee is liable to have his seizin defeated by a conditional limitation or an executory devise, because, in that event, the estate is insufficiently represented by the person holding the first vested estate of inheritance. This exception is repudiated so far as it seems to be noticed in the United States.’ Freeman, Coten. and
“In the case at bar testator’s sons, as the owners of the life-estates created by the third item of the will, are parties. The widow also is a party. As we have said, the qualified fee that arises under the seventeenth item of the will is vested in the widow and sons as tenants in common. Such qualified fee, although liable to be defeated by the contingent estates created by the third item of the will, is, as we have said, an estate of inheritance. The contingent owners of such contingent estates are not in being. It follows that all possible parties are before the court. By way of illustration, if one of such contingent owners were in being and a party to the proceeding, his interests would not be broader than the question of the amount of the land that should be set off to his father as life-tenant, on a division of the land, or the question of the amount of the selling price, if the land should be ordered sold. The interests of such contingent owners would be so measured, because the land so set off, or that part of the purchase-price or its equivalent representing it, would eventually come into his possession or the possession of his heirs, possibly, however, in common with brothers and sisters subsequently born. His interest would not be broader than as indicated. The father as life-tenant has a like interest neither narrower nor broader. If the real estate should be divided, he would be interested in the amount of the same identified as his share. If the lands should be sold, he would be interested in the distributive amount representing his estate in
A companion case to the foregoing is Coquillard v. Coquillard, 62 Ind. App. 489 (113 N. E. 481). In this case it was held: “ The trial court, in the exercise of its chancery powers, is clothed with jurisdiction to direct the sale and conversion of lands in fee held by a life-tenant, with conditional estates over to unascertained persons, where emergencies arise rendering action by the court imperative in order that the persons interested may be protected in their legal rights, and the body of the estate preserved for them; but such extraordinary powers should be used with caution. . . And where the exigencies of the situation require such action, . . the trial court may by proper decree order that the lands be sold free of all life-estates and remainders, and that title in fee simple shall pass to the purchaser; and such a decree is binding on the unborn grandchildren of a testator who devised to them, subject to intervening life-estates, the fee in the lands involved.” In the opinion it was said: “It cannot be doubted that the power is lodged in chancery in a proper case, where all persons interested and likely to be affected by the decree are before the court, to convert realty into personalty, and to direct and supervise reinvestment. Thus, Ridley v. Halliday (1900), 106 Tenn. 607, 61 S. W. 1025, 53 L. R. A. 477, 82 Am. St. Rep. 902, involved lands held under a grant- for the use of a life-tenant, with remainder over to successive classes, some of whom were not in being. It was made to appear that the interests of all concerned plainly required the sale of the lands and the reinvestment of the proceeds. In approving a decree to that end, the Court of Chancery Appeals of Tennessee held, that, under the circumstances presented, a court of chancery has inherent power to order a sale, the interested persons in esse being before the court, and that a decree so entered is binding on contingent owners not in being. The facts there were very similar to those here, differing principally in that the lands there had been conveyed and were held in trust for the life-tenant and remaindermen.
“Each of the cases above cited and discussed involved an estate held in trust for the use of life-tenants and contingent remaindermen, including persons not in being. While the fact that an express trust is involved may clothe a court of chancery with jurisdiction to direct its administration in order that its subject-matter may be preserved and its beneficiaries protected in their rights, yet some other equitable consideration must exist in order that the court may properly exercise its power, by directing the conversion of trust property into some other form where such eon-
“Respecting the first two questions suggested as presented for consideration, we conclude that the trial court in the exercise of its chancery powers is clothed with jurisdiction to direct the sale and conversion of lands in fee held by a life-tenant, with conditional estates over to unascertained persons, where emergencies arise rendering action by the court imperative in order that the persons interested may be protected in their legal rights, and the body of the estate preserved for them; and that while such extraordinary powers should be used with caution, in the case at bar the court properly exercised such powers to the end indicated.
“ Directing our attention more particularly to the third question above suggested, all persons interested in the subject-matter of this
"A proceeding such as this is maintainable only on the theorjr that, by reason of some exigency growing out of changed conditions, it becomes necessary to convert lands into personalty in order that the body of the estate may be preserved. The courts are in accord that in order to the validity of the proceedings the funds must be substituted for the lands, all interests and estates in the latter transferred to the former, and that the fund must be ordered administered as nearly as possible as the lands would have been handled had there been no conversion. Noble v. Cromwell (1858), 26 Barb. (N. Y.) 475; Gavin v. Curtin, supra; Mead v. Mitchell, supra; Cheesman v. Thorne, supra; Bofil v. Fisher, supra; Monarque v. Monarque. (1880), 80 N. Y. 320, 326; Barnes v. Luther
In the case under consideration, the court had jurisdiction of the subject-matter, and all persons in esse to be affected by the decree were before the court. One of them was John Moore Walton, the only child of the testator. The only possible issue of the testator, within the meaning of the will, not- in esse, would be issue of John Moore Walton. They would be in the same class with him, and would be bound by the decree, as it was binding upon him. Hnder the circumstances the court had jurisdiction to render the decree; and this being the controlling question, there was no error in oyerruling the demurrer.
Judgment affirmed.