| Ill. | Apr 15, 1862
In no possible contingency which we can anticipate, could the estate which was conveyed by Gray to Brown by this trust deed, revert to the grantor; hence there was no necessity to make him a party to the bill. The objection for the want of proper parties cannot prevail.
The most important question presented, and that which is ultimately to have a controling influence on the rights of these parties, is, had the court of chancery jurisdiction or power to entertain the first bill, and to render the decree ? If it had no such jurisdiction, then the decree was utterly void, and must be so treated at all times and in all places, and the purchasers acquired no rights or interests under it, but Brown still holds the legal title in trust for the complainant, as if that suit had never been instituted. It is insisted for the plaintiff in error, that the court of chancery has not the power in any case to intermeddle with or touch an estate which is held in trust for a married woman. That the terms of the deed, creating the trust, are like iron bands, rigid and unyielding, and that no human power can unloose or even adjust them, no matter what emergency or necessity may arise, even though they may destroy the whole interest designed for the beneficiary, and created by the deed or other instrument by which it is evidenced. We do not think so great a defect exists in our system of jurisprudence as is assumed by this position. We are not altogether satisfied with the answer given by the defendant’s counsel to this question of jurisdiction. He says that because the court had jurisdiction of the parties who were properly before it, and of the subject-matter which was land, and within its territorial jurisdiction, therefore its jurisdiction was complete, and it had authority to make what disposition it pleased of the land, and of the interests of the parties, so far as the question of power is concerned. This, we say, is hardly satisfactory. There must as well be the necessary averments in the pleadings to bring the subject-matter before the court, before it has any power whatever to render any decree which can affect such subject-matter, or the interests in it of the parties to the suit. If the court of chancery should decree one of its suitors, standing in its presence, to be hanged or sold, that would be void ; or if it should order a piece of land, though within its territorial jurisdiction and belonging to a party to the suit, but not mentioned in the pleadings, to be sold or transferred, that decree would be void, for the want of jurisrisdiction over the subject-matter. But here there are averments bringing the subject-matter before the court, and stating facts which were supposed to be sufficient to render it proper for the court to interfere, and order the property to be sold, and the proceeds disposed of more to the benefit and comfort of the cestui que trust, than to let the fund remain as appointed by the deed of trust. Upon this question of jurisdiction it is of no importance now whether the reasons assigned for the action sought were sufficient to justify the decree or not, but the question is, was it possible for a state of facts to exist which would justify the court in disposing of the subject of the trust, in a mode different from that appointed in the deed ?
This question of jurisdiction does not depend upon the necessities of this case, but if it is possible that such a case might have existed as would authorize the court to break in upon the provisions of this trust deed, and order a disposition of the property not in accordance with its terms, then the power to do so is established. The case might exist where the property was unproductive, as in this case, but where the cestui que trust was absolutely perishing from want, or forced to the poor-house, or where the trustee could not possibly raise the means to pay the taxes upon the property, and thus save it from a public sale and a total loss. Gan it be said that the beneficiary of an estate which would bring in the market one hundred thousand dollars, should perish in the street from want, or be sent to the poor-house for support, or that the estate should be totally lost, because there is no power in the courts to relieve against the provisions of the instrument creating this trust ? Exigences often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required ; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had he anticipated the emergency. In Harvey v. Harvey, 2 P.Wms., the court said, it “ would do what in common presumption the father, if living, would, nay, ought to have done, which was, to provide necessaries for his children.” It is true, that courts should be exceedingly cautious when interfering with, or changing in any way the settlements of trust estates, and especially in seeing that such estates are not squandered and lost. Trust estates are peculiarly under the charge of and within the jurisdiction of the court of chancery. The most familiar instances in which the court interferes and sets aside some of the express terms of the deed creating the trust, is in the removal of the trustee for misconduct and the appointment of another in his stead. But this is as much a violation of the terms of the settlement, as is a decree to sell the estate and re-invest it, or to apply the proceeds to the preservation of the estate, or the relief of the cestui que trust from pinching want. From very necessity a power must exist somewhere in the community to grant relief in such cases of absolute necessity, and under our system of jurisprudence, that power is vested in the court of chancery. This power is liable to be abused or imprudently exercised, no doubt, and so may every power vested in the courts or other branches of the government. The liability to the abuse or misuse of power can never prove its non-existence, else all powers of government would be at once annihilated.
We regret that in our researches we have been unable to find a careful discussion, by any court or commentator, of the powers of a court of chancery to afford relief in such a case as this. In many cases, the question of jurisdiction is considered as distinct from that of power. We often find the jurisdiction denied, where the power exists, but ought not to be exercised, and in this sense is the word jurisdiction usually used, when applied to courts of chancery. Where there is a want of power, the decree is void collaterally, but where there is said to be a want of jurisdiction merely, it is only meant that it would be erroneous to exercise the power, and the decree would be reversed on appeal. It means a want of equity, and not a want of power. In commenting on this distinction, the Court of Appeals of New York, in Banks v. Duckenfield, 18 N. Y. R. 592, said, “ There are, I apprehend, few cases in which that position (that the decree is void for the want of power) could be affirmed, in respect to a court possessing general jurisdiction in law and equity, on grounds relating to the subject-matter of the controversy.”
Upon the question of the powers of a court of chancery to break in upon and change the terms of a settlement, in England there are decisions which would indicate that the rule is different, where the subject-matter is personal property, from what it is where the subject-matter is real estate. There is another distinction which may be recognized in their decisions upon the powers of the court to deal with real estate; and that is, where the beneficiaries are infants, the rulejseems to be different from what it is where they are adults, but laboring under disabilities. Where the subject-matter is personal property, whether infants or others are the beneficiaries, the courts do not hesitate to dispose of it as they think best for the beneficiary, regarding, it is true, but without being controlled by, the terms of the settlement. Thus, in Saunders v. Vautier, 4 Beavan, 115, stocks were bequeathed to trustees to be held by them, and the interest and dividends accumulated, till one who was then an infant should attain the age of twenty-'five years, and then all was to be paid over to him. During ■his minority, the Lord Chancellor ordered that one hundred pounds per annum of the dividends should be applied to his maintenance, and when he arrived at the age of twenty-one years, the whole was ordered to be paid over to him. The same power was exercised in Rocke v. Rocke, 9 Beavan, 66, Barlow v. Grant, 1 Vernon, 255, Harvey v. Harvey, 2 P. Wms. 21, and in many other cases, and we nowhere find this power questioned. In the matter of Bostwick, 4 J. C. R. 100, the same power was exercised by Chancellor Kent.
In one case only, do we find the court disposing of the inheritance of an infant, in a case not provided for by the act of Parliament. But the authority of this case is denied in Taylor v. Philips, 2 Ves. Sr. 23, and in Russel v. Russel, 1 Mallory, 525. In several other cases the power has been denied to the court, and the parties were referred to Parliament, where it was said that the power alone exists. These cases have been followed in New York, where, in Rogers v. Dell, 6 Hill, 415, a court of law held a decree void, which had ordered the sale of an infant’s real estate in a case not authorized by the statute ; and in the matter of Turner, 10 Barbour, 552, the question arose directly on a petition to sell, and the court held that they could not order the sale of an infant’s estate, contrary to the provisions of the deed creating the estate.
Yow, several remarks may be made upon these decisions. In the first place, both in England and in New York, as also in this State, there are statutes regulating the sale of infants’ estates, and specifying in what cases the courts may order such estates to be sold, and it might be claimed, with much force, that where the legislature had specified certain cases in which the estates of infants may be ordered to be sold by the courts, and directed the mode of proceeding in such cases, there was an implied inhibition to order a sale in any other case, or in any other mode. Again, in England, Parliament has power to pass a law authorizing such sale, so that the tribunals of the country are not without authority to grant the necessary relief in every case, while in New York, and so far as we know, in all of the other States in this country, the legislature possesses no such power. This has been repeatedly decided in this State, and the reason assigned is, that it is a judicial power which is prohibited to the legislature. If, then, the courts have not the power, in this country it nowhere exists, and there must be a failure of justice, possibly in the most extreme case of necessity. All who are familiar with the history and growth of the court of chancery in England, know that its jurisdiction has found its root in necessity. It has ever been its boast, that it was its peculiar province to afford relief in cases of necessity, where the other tribunals lacked the power to do justice, or afford the necessary relief in the particular case; and it is by no means certain that the court of chancery would not have exercised the power and granted the relief in these cases, had it not seen, that sufficient power existed in another tribunal where complete justice could be done.
Again, from a system of policy in England, a much higher degree of importance is attached to real estate, than to personal property. So to speak, it is looked upon as more sacred. It is further removed from the control of the courts. It is not subject to legal process, and may not be taken for the payment of debts, as in this country. In this respect, the policy of our institutions differs very widely from theirs. Here, we treat realty practically as of no higher order of property than personalty. In the policy of our law, there is no reason why the courts may not deal with real estate for the benefit of infants, wherever and to the same extent that it would with personal property. These are considerations which might well have induced the court of law to hesitate, before it held the decree of the court of chancery void, which had ordered the real estate of an infant to be sold for his benefit. Indeed, we have been unable to find a case in England going to that extent; and should such a case be so decided there, it is by no means certain that the court of chancery would not enjoin the party from availing himself of the decision of the court of law.
But whatever may be the true rule here as to the disposition of real estate belonging to infants, in cases not provided for by the act of the legislature, we nowhere find this power even questioned in any other case, except those referring to the estates of infants. We find it exercised without question in reference to the estates of married women. The strongest case we have found of the exercise of this power—and it is the only one to which we shall refer—is that of Rothwell v. Redrington, 1 Vernon, 456. The syllabus of the case is this, and it is a correct statement of the decision: “ A feme covert, after the death of her husband, bound by an enclosure, to which he had agreed, it appearing that her estate was improved by the enclosure, and that by disturbing it she aimed at an unreasonable advantage to herself.” This is certainly a very strong case to show the extent of the power which the court may exercise over the estate of a married woman, and, as a question of power, goes much further than this case. There the act was done by the husband of the feme covert alone, without even consulting her, so far as appears; while here, the act was done by the court, at her solicitation and upon the ground, and, as was supposed at the time, for her benefit. It would be monstrous indeed, should she now be allowed to question a decree in a suit to which she was a party—nay, where she was the principal complainant, and where the decree was in conformity to her own prayer, and where she has already received all its benefits. Equity and good conscience require that she should be estopped now to complain of it. To do so is, to say the least, a moral fraud.
We repeat, that we much regret that we have nowhere found this subject carefully examined, as a distinct subject of chancery jurisdiction, and the limit of this power clearly settled. All the cases we have met with on the subject are very short, and none of them attempt to discuss the subject upon principle, and we are left to deduce a principle from the isolated questions decided ; but from these, we have no hesitation or difficulty in arriving at the conclusion that this decree was rendered in the exercise of a legitimate jurisdiction, and not of an usurped power.
The bill showed, that the trust deed was executed in consideration of the relinquishment of dower by Mrs. Curtiss, which she held in other lands. That the estate thus held in trust for her, was of great value, but was unproductive; and prayed that the property might be sold, and the proceeds invested in such way as to make it productive. This bill presented such a case as to require the court to investigate, to deliberate, and to decide, whether it was for the best interests of the cestui que trust to grant this her prayer. This, we think, cannot be denied, and indeed many judicious persons might think it better to order a sale and reinvestment on such a state of facts. The bill at least was sufficient to give the court jurisdiction, and when that is once established, the decree at least is not void for the want of power.
When we look into the proof, we do not find the affirmative evidence, to show that the property was in fact unproductive, or that it could be anywhere better invested; and if this record had been brought before us before the decree had been executed, and while a reversal of it would have afforded any practical remedy to the beneficiary, by preserving the estate from being wasted, according to her own request, we should no doubt have reversed it. And so, too, the court fell far short of its duty, in a prudential care for the judicious investment of the proceeds of the estate. These proceeds were placed absolutely in her hands, to be disposed of as she might be advised by her husband, whose influence over a dutiful wife, the court should have known, would be almost omnipotent, while it was against that very influence, and his improvidence, that the creation of the trust was designed to protect her. And this duty was none the less pressing upon the court because these safeguards were originally devised by the husband and wife, and the consideration moved from the latter, than in case •these had been devised by another who had advanced the consideration for her benefit. It should have been the care of the court to watch vigilantly that the estate was preserved from her folly, as well as his improvidence. And, we repeat, were this decree unexecuted, we should not hesitate to reverse it at once. But it has been executed. The land has been sold under a valid and binding decree of the court, and purchased by innocent parties, who paid for it a full consideration, and who have held and improved it for many years. This purchase money was, by an improvident order of the court, paid over to her, and it is lost and gone. USTo order of this court can recall it. The estate cannot be re-created. In no way can the estate be restored to her, from whom it was taken at her own request, urged, it may be, under improper influ"enees, but by wresting it from those who purchased it under the sanctions of the law and a valid and binding decree of the court, and who paid full value for it. This would be as repugnant to our sense of justice as it would to the mandates of the law. The loss absolutely has been incurred, and must be borne by some one. Shall she be the victim of her own folly, and the improvidence, or, if you please, the misfortune of her husband, or shall the misfortune be thrown upon those who , were in no way responsible for it? We cannot hesitate, the law cannot hesitate, as to what the answer should be. It is no doubt true that the reversal of this decree cannot affect their title acquired under it, nor can it re-create the money which is forever gone. It might throw an injurious suspicion upon their title, which would hurt them, but could not benefit her. It would be a barren victory, unfruitful of practical results. It is true that it might serve as an example to the courts, in whose hands is vested so solemn a trust, to watch over and guard the interests of those whose helplessness and incapacity requires a careful guardianship. But this, it is hoped, may be as well accomplished without a reversal as with. We lament the loss of this estate, and the instrumentality through which it has been lost. But it is now beyond our power to remedy it. The decree has been finally executed. Under it, rights have been legally and fairly acquired, which the law will not and ought not to permit to be disturbed. Notwithstanding the want of care and proper precautions with which it was originally rendered, we are now constrained to allow it to stand undisturbed.
The decree must be affirmed.
Decree affirmed.