55 Ala. 497 | Ala. | 1876
Eobert Creswell, having made and executed
The bill in the present case seeks to have a part of the corpus of said fund invested in real estate in Alabama, to be a home for said David Creswell and Ms family. The complainants are, David Creswell, and six others, alleged to be his children, five of whom are described as infants, suing by next friend. It is not claimed that the will gives any power of re-conversion of any of the fund into land. It evidently contains no such power. The sole ground on which the relief is prayed is, that in the present impoverished and helpless condition of the family, their comfort and interest, for reasons stated in the bill, will be promoted by the copversion. Some of the legatees in remainder over are minors, who answer by their guardian ad litem. No testimony was taken in the cause, and no reference ordered, to inquire and report as to the expediency of such investment. The cause was tried on pleadings, and agreement of counsel, “ that the investment prayed for in said bill would be safe, and to the interest of complainants, not exceeding one-third of the whole trust fund.” This is signed by the solicitors of the complainants and of the adult defendants, and by the guardian ad litem of the infant defendants. The chancellor de
We have with earnest solicitude looked into the authorities, and we have found no adjudged case, or principle stated in any elementary work, which will authorize the relief prayed, under either the averments or proofs found in this record. The testator, by his will, converted land into money, placed it in trust, directed its preservation, and the payment of the interest to successive donees; and at the end of certain lives, the principal to go to the children of David Creswell, if any living, otherwise over. It is a cardinal rule, in the execution of wills, to carry into effect the express directions of the testator. Disregarding these, we change rather than interpret the will. In the case of Davis, petitioner, 14 Allen, 24, a much stronger case is made than we find in this record, why a change of investment should be made. The relief was denied. The court said: “ So far as the intent of a testator can reasonably be effected, it should be done. He has exercised a right over his property, which the law has given him ; and that right should be respected and maintained.” And the court, commenting on the facts presented, said : “ It is not apparent that the interest of the sons ” [remainder-men] “would be promoted by a sale.”
In Ex parte Jeioett, 16 Ala. 409, Ch. J. DargaN said : “Under peculiar circumstances, when it is manifestly for the interest of the infant, guardians may change the nature of their estate from personalty to realty, and from realty to personalty. He then quotes from Ch. Kent to the same effect, and adds : “ Yet I confess I have not been able to find a case in any of the English books, where a sale of real estate of an infant has been ordered, on the ground alone that it would be for the interest of the infant, unless connected with the further reason of paying debts, or providing a maintenance for the infant. In this country, however, where the value of real estate is not fixed and stable, but
Conceding, for the sake of the argument, that the Chancery Court has power to change a testamentary investment, such as this, into a homestead for the family, the present record falls very short of making a case for its exercise. The averments should show facts, not mere conclusions, why the interests in remainder will not be prejudiced, if they should not even go further, and show that they will be promoted by the change ; and these averments must be proved by testimony that is, at once, intelligent, reliable, and free from all imputation of bias. In selecting the homestead, watchful attention should be bestowed on the prospective, permanent value of the property, as the only means of properly guarding the interests of those in remainder; and the title should be carefully examined, by one capable of making the examination; and all these questions, with full descriptive details, should be reported to the court by the register. General power to purchase should not be conferred : only a defined and special purchase allowed and sanctioned by the court, after a full understanding and approval by the court, of the property, the title, and the terms .of purchase.
In what we have said above, we do not mean to affirm that the chancellor, under any circumstances, can authorize the conversion prayed in the bill before us. We leave that question open. — See 2 Story’s Equity, §§ 791, and 1276; 1 Perry on Trusts, §§ 452, 448; Evans v. Iglehart, 5 Gill & J. 171; In matter of Heaton, 21 N. J. 221; Rogers v. Dill, 6 Hill, 415; Banister v. McKenzie, 6 Mumf. 447; Leigh & Dalzell on Conversion, m. p. 167; 1 Jar. Wills, m. p. 528.
The decree of the Chancery Court is reversed, and a decree here rendered, dismissing the bill of complainants.