62 Ind. App. 426 | Ind. Ct. App. | 1916
Appellee brought this action against appellants to procure the partition and sale as indivisible, of certain lands situate in St. Joseph County, of which Alexis Coquillard, Sr., died seized in fee, and of the estimated value of $113,575, which lands are the same as those described in the third item of his will hereinafter set out. Coquillard v. Coquillard (No. 9033), 62 Ind. App. 489, 113 N. E. 481, is in many respects a similar ease.
The questions properly presented arise under exceptions reserved by appellants to conclusions of law stated on a special finding of facts. The finding, to the extent material here, is to the following effect: Alexis Coquillard, Sr., died testate in said county, February 26, 1890, seized in fee of said lands as aforesaid, and leaving surviving him as his only heirs at law his widow, the appellant Maude M. Coquillard, born October 23, 1854, and his sons, appellant Joseph A. Coquillard, .born December 18, 1884, and appellee, born January 21, 1882. His will was duly probated March 3, 1890. His estate has been settled and the executor of the will discharged, and all trusts created by the will have been fully executed. Both sons are unmarried, and no child has been born to either of them. The third and seventeenth items of the will are as follows:
“Third. I give and devise to my said sons, and other children if I should have any” (the land involved, describing it) “to have and to hold the same unto my children, and such other*430 children as may be born unto me, in common, share and share alike, during their respective lives, and the remainder from and after the death of my said children I give and devise to such children as may be born unto my said children, such descendants of my said children to take the share of their parents per stirpes and by way of purchase. Provided, .however, that whereas my said children are now infants, my said wife, Maude M. Coquillard, shall have, hold, manage and control all the land described in this paragraph of this will during the minority of the youngest of my surviving children, and during such period of time she shall be entitled to collect all rents arising from said property, she shall keep the buildings on said premises insured for two thirds value, and rebuild in case of loss by fire so far as the insurance will go, my trustees to pay balance of cost of rebuilding, and pay all taxes and assessments on said lands and keep said property in good repair.”
“17th. I give and bequeath all the residue of my estate, both real and personal, to my wife and children, my wife to have one third and my children two thirds thereof..”
The court finds that the devised real estate is suburban, with a residence thereon; that it is subject to heavy assessments for taxes and urban improvements; that it yields but little income and is a source of expense greatly exceeding the income therefrom; that its main value consists in its fitness for subdivision and sale as urban real estate; that it is not susceptible of division among the parties and cannot be partitioned- among the respective owners, and that it should be sold and the proceeds distributed. The conclusions of law are as follows: “1. That the plaintiff, Alexis Coquillard, has an estate for life in the undivided half of said real estate; that until a child is born to him in lawful
The estates created in appellee and his children by such item are identical with those created in appellant Joseph A. Coquillard and his children, but" involve the remaining undivided one-half of the lands.
Of the estates into which the estate in fee simple of which testator died seized is carved by the third
In the cáse at bar, unless a court exercising equitable powers may otherwise decree, the real estate involved cannot be sold and conveyed by perfect title until the expiration of the life estates created by the third item of the will. This is apparent from the nature and quantity of the various estates created by the will. As measured by the Carlisle tables of mortality, the life expectancy of testator’s sons at his decease were approximately 50 and 51 years respectively. At the commencement of this action in 1914, such expectancies were approximately 33 and 34 years respectively. At the former time the real estate involved was situated a distance from South Bend, then a city of 21,000 inhabitants; at the latter time, a part of such real estate was within the city limits and the balance contiguous thereto, and the city had increaséd in population to about 65,000 inhabitants. The proximity of the real estate to the city naturally increases its value, if such value may be rendered available, but does not necessarily augment its capacity to produce revenue. From an. increase in value there inevitably results an increase in taxa
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
In a like ease, the Court of Errors and Appeals of New Jersey says: “The established rule of equity practice is that estates limited over to persons not in esse are represented by the living owner of the first estate of inheritance.” Dunham v. Doremus (1897), 55 N. J. Eq. 511, 37 Atl. 62. 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)
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 Part. (2d ed.) §482. In a leading New .York ease the court in applying the doctrine of representation says: “It is not a question of entirely divesting and destroying such contingent interests; but simply a question whether the property upon which they are attached may be changed in form; whether land may be converted into personal securities under the direction of the court, preserving such interests intact upon the property in its new form. * * * A decree against the person having the first estate of inheritance would bind those in remainder or reversion, although the estate might afterwards vest in possession. * * *
“It would therefore follow, as a matter of course, from this rule, that contingent limitations and executory devises to persons net in being would
The fifth conclusion of law is to the effect that the proceeds derived from the sale of the lands should be distributed, first, to the payment of costs and expenses; second, to each son the value of his life estate .estimated on his life expectancy under the mortality tables; third, that the residue be divided into three parts, and that each son execute his bond conditioned for the payment to the legal guardian of any child born to him, the share of such child under the third item of the will. It will be observed that the provision of such conclusion, which we have designated as the third conclusion, is indefinite. While it is specified that the residue should be divided into three parts, there is no provision as to the disposition of such parts. Pre
The decree on the subject of distribution is less definite than the fifth conclusion. It merely directs in, general terms that, after the payment of the costs and expenses, the balance be paid to the parties to the proceeding in proportipn to their several interests in the real estate. There is no provision for the protection of the fund.
The judgment is reversed, with instructions to restate the first, second and fifth conclusions of- law in harmony with this opinion, and to decree accordingly.
Note. — Reported in 113 Ind. 474. See under (1) 40 Cye 1676; (2), (3) 16 Cye 602, 603; 40 Cye 1589-1593; (4), (5) 40 Cye 1564-1566; (6) 30 Cye. 188, 191; (7) 30 Cye 201, 202; (8), (9) 30 Cye 170, 171; (10) 30 Cyc 308; (11) 30 Cye 205, 272; (12) 30 Cyc 291; 119 Am. St. 586.