Farr v. Gilreath

23 S.C. 502 | S.C. | 1885

The opinion of the court was delivered by

Mr. Justice McGowan.

This action was brought to recover possession of a half acre lot in the city of Greenville. The testimony is not in the Brief, but the report of master Douthit is so full and clear that it will only be necessary to give such an outline as will make the opinion intelligible.

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Considering, as we should, the fourth and twelfth clauses of the will together, and making a small transposition by placing the last paragraph of clause twelve in its natural and proper position as part of the disposing clause, the whole provision would read as follows: “I give unto my son, Reuben S. Chick, ' in trust for my daughter, Maria H. Thompson, and at her death to such child or children as may live to come of age, the following property, &c. But if my said daughter should die leaving no child, it is my wish that her trustee should sell the property in his hands and divide the proceeds of the same equally between my surviving children or the heirs of their bodies,” &c. It is manifest that Mrs. Thompson and her children were naturally the first objects of the testator’s bounty, and the provision that, in case of her death without a child, the property should be sold and the proceeds equally divided among his other surviving children, was merely secondary. Keeping this in view, it seems to us that several points contested are so clear'as to make it unnecessary to enter into the intricate and involved doctrines of contingent and springing uses mooted in the learned argument at the bar.

There can be no reasonable doubt that the testator intended to dispose of his whole interest in the property, leaving no part of it intestate. We think that such intention was effectually carried out, and that the fee in the land was devised directly to the trustee. It is true that the word “heirs” is not used, but our statute (Gen. Stat., § 1861) makes the use of words of limitation in a will unnecessary. Every devise shall be considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator, expressed or implied.

But apart from the statute, the rule is that lands devised to a trustee, upon certain trusts, gives such estate as is commensurate with the purposes of the trust. The duties imposed upon this trustee made the fee necessary to support them. He was required to hold the title for Mrs. Thompson during her life, and if she died without children, “to sell the property in his hands and divide the proceeds equally,” &c. The trust was by no means a naked power to sell, but a devise of the property to the trustee for certain purposes, and in one event (which has happened) to sell and distribute the proceeds, &c. “The distinction is between a devise to executors to sell, as if the testator says: I devise my land to my executor to be soldand a devise that the executor shall sell, as when the testator says: ‘I desire or direct that my lands be sold by my executors.’ In the first case the fee passes to the executors; in the last the fee passes to the heir, to be divested whenever the power is executed by the executors.” Executors of Ware v. Murph, Rice, 55; 3 Jarm. Wills (5 Am. edit.), 52, 53, and notes.

Nor do we think that the trusts were executed by the statute of uses. A passive trust, or one where the trustee has no active duty imposed upon him, is executed by the statute of uses ; but the statute does not execute the trust in case there is some duty to be performed or act to be done by the trustee, made necessary by the scheme of the will, and for the performance of which it is necessary that the legal estate should not pass from the trustee by operation of the statute. Williman v. Holmes, 4 Rich. Eq., 475; Ioor v. Hodges, Speer Eq., 593; 3 Jarman, 52, and notes. Or, as stated by Chancellor Harper in Posey v. Cook (1 Hill, 413): “Perhaps the rule might be more accurately expressed to say that where the intention is that the estate shall not be executed in the eeslui qui use, and any object is to be effected by its remaining in the trustee, then it shall not be executed,” &c. Besides, as to the interest of these plaintiffs, the property was to be considered mere personalty, as we shall see hereafter.

We cannot doubt that the interest of the plaintiffs, under the will of their father, Hr. Chick, was contingent. As to the character of the interests, it seems to us that the case of Faber v. Police (10 S. C., 376), cited in the decree below, is absolutely conclusive. It was there held that “a devise to trustees for the use of A. during his life, and after his death in trust for his lawful issue living at the time of his death, and if he should die leaving no issue (there being none), then over to his residuary devisees and legatees, gives to the remaindermen not a vested, but a contingent remainder.” Considered at the time of the testator’s death, when the will took effect, the interests of the plaintiffs were dependent upon a double contingency: First, that Mrs. Thompson should die without children; and, second, that the remaindermen should survive her. It cannot be necessary upon this point to do more than quote a portion of Mr. Justice Mclver’s remarks in the case of Faber v. Police: “According to the elementary writers a vested remainder is one which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and does not depend upon the happening of any future event, but whose enjoyment in possession is postponed to some future time. A contingent remainder, on the other hand, is one which is limited to a person not in being, or not ascertained; or if limited to an ascertained person, it is so limited that his right to the estate depends upon some contingency in the future. So that the most marked distinction between the two kinds of remainders is, that in the one case the right to the estate is fixed and certain, though the right to the possession is deferred to some future period ; -while in the other the right to the estate, as well as the right to the possession of such estate is not only deferred to á future period, but is dependent upon the happening of some future contingency,” &c.

It will be observed that in no event is the land itself devised to the plaintiffs, but “the proceeds” of sale directed to be made by the trustee. In such case it is well settled that, by the equitable doctrine of constructive conversion, the property is considered as personalty, and not as realty. “Money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted, and this in whatever manner the direction is given. * * * It follows, therefore, that any person claiming property under a will or settlement directing its conversion must take it in the character which such instrument has impi’essed on it, and its subsequent devolution and disposition well be governed by the rules applicable to property of this kind,” &c. 2 Jarm. Wills (5 Am. edit.) 170, and notes, where all the authorities are collected; and among them Perry v. Logan, 5 Rich. Eq., 202.

We do not consider this as one of the cases in which the beneficiaries may elect to take the property in specie which was ordered to be sold. Not to advert to the fact that there has already been “a de facto” conversion the general rule is, that where the conversion is. imperatively directed, it is regarded as taking place at the time of the testator’s death, although the time fixed by him for the sale for that purpose be distant. The words of the will: “It is my wish that her trustee shall sell the property in his hands and distribute the proceeds equally,” &c., amount to a positive direction that in the event contemplated, the property should not go over in specie, but be converted at all events “out and out.” Mathis v. Guffin, 8 Rich. Eq., 39; Wilkins v. Taylor, Ib., 291; North v. Valk, Dudley's Eq., 212. The lands, as such, were not devised to the plaintiffs, but the proceeds thereof as personalty, and therefore they are not dfevisees, but legatees. Hav-. ing no title to the land itself, they cannot at law recover it from Gilreath, the defendant, who is in possession with the legal title from the trustee. So far as the recovery of the land is concerned, this would seem to be conclusive against the plaintiffs.

But it is urged that even if the claim of the plaintiffs is a mere equity for an account of the proceeds of sale, yet as cestuis que trust they may come into court to have the land now sold in order to get at “the proceeds;” that the sale made prematurely during the life of Mrs. Thompson being void, and the order of the court not binding on them, as they were not parties to the proceeding, they may follow the land into the possession of a purchaser at that void sale, who, though having the legal title from the trustee, purchased with constructive notice of the will containing the trust, which still attaches to the land. This makes the question whether the sale made under the orders of the court in the case of Thompson v. Chiek, Trustee, is binding upon the plaintiffs, who were not made parties. The sale was after due notice, open, fair, and for full value. There is no reason to doubt that the parties acted in good faith without suspecting any defect. It was what is known as a judicial sale, in which the court is, in some sense, the vendor. From the confidence which the public reposes in the judgments of the courts, which should not be .lightly weakened, it is wise policy to sustain such sales when it can be done without violating principle or doing injustice. It is true, there are some cases in which the judgment of the court operates on the property itself, in rem, without any nice regard to the parties personally before the court, but such cases are exceptional. The general rule certainly is, that those who are not parties are not bound by the judgment.

This court has lately held in the case of Moseley v. Hankinson, Trustee (22 8. C., 323), that contingent remaindermen in esse and within reach, are necessary parties to a proceeding to sell land. It is true, in that case the interest of the remaindermen was in the land itself, which was the subject of the proceeding, while in this they only have an interest in the proceeds, after sale by the trustee. But, in respect to the necessity of the remaindermen being parties, we cannot see such a distinction between the cases as would warrant us in holding differently in this case. As we understand it, the rule proceeds on the general principle that all persons in esse should be made parties who have a substantial interest in the subject matter, without reference to what may be the precise character of that interest.

The case at bar, however, does differ from that of Moseley v. Hankinson in one important particular. In that case Fortune, the trustee, had no power to sell; and of course the sale rested solely on the order of the court, which was held not to bar the remaindermen who were not made parties. But in this case the will gave the trustee express power to sell, which he could exercise without any authority whatever from the court. The trustee did make the sale, which was in all respects according to the express terms of the trust, except that it was made during the life of Mrs. Thompson, instead of at her death. Leaving out of view entirely the order of the court, this scintilla of irregularity is the sole ground relied upon tó avoid the sale and recover the land, with all the improvements which have been placed upon it.

No doubt the general principle is, that such powers must be. strictly executed, but there is one rule of interpretation which, as it seems to us, covers the case, and was not referred to by the Cir- _ cuit Judge, probably for the reason that, in his view, it was unnecessary. Mr. Perry lays it down as follows: “A power of sale, like all other powrnrs, can be executed only in the mode and manner prescribed in the instrument of trust, as where the trust is to sell after the death of the tenant for life, * * * a sale before the time is bad, although made by the decree of the court or act of the legislature. But the execution of the power of sale may be accelerated by the tenant for life surrendering the life estate,or by joining with the trustee in effecting the conveyance; for the postponement of the sale being for the benefit of the tenant for life, such tenant may, by executing the deed of conveyance, waive such benefit. If, however, the postponement of the sale is not for the benefit of the tenant for life, but for the benefit of the remaindermen, as by preserving real security for them, or with the expectation of securing a rise in value for them, the sale of the estate cannot be accelerated, even with the concurrence of the tenant for life.” See 2 Perry Trusts (3d edit.), § 783, and authorities in notes.

In regard to the intention of the testator on the point indicated, we have no doubt whatever. As we construe the will, Mrs. Thompson ivas the first object of the testator’s bounty, and the postponement of the sale of the land until her death Avas entirely for her benefit, and Avithout reference to enhancing the value of the limitation over to the remaindermen, who Avere only secondary, and might never take. It is manifest that the testator intended Mrs. Thompson to enjoy the property in specie during her life, but in case she should die Avithout child or children, that it should never pass over in that form to the remaindermen. The sale Avas made in the life-time of Mrs. Thompson, at her earnest request and for her benefit, in fact, to enable her to live on the interest of the purchase money, which, being a feeble lady, she could not do on the land itself, as she could not make it remunerative.

It is true that Mrs. Thompson did not actually sign the deed to the purchaser, but in instituting the proceedings for its sale, she did what, in our judgment, Avas equivalent to it. She consented to the sale and urged it, and in so doing substantially joined with the trustee in executing the deed of conveyance, Avhich, under the rule above stated, amounted to a waiver of her exclusive right to enjoy the land in specie, and accelerated the execution of the poAver of sale. The life tenant waived the peculiar privilege given to her by the testator, and concurred in making title to the purchaser; the effect of which Avas to alloAv the sale at an earlier day, and the plaintiffs, more remotely connected with the property, have no just cause to c'omplain, but must be remitted to the proceeds of sale.

Indeed, so far as Mrs. Farr is concerned, we agree with the master that she elected to confirm the sale made Ayhen she instituted proceedings to recover the purchase money, and actually received a part of it. “So an acceptance of part of the purchase money by the cestui que trust may be a confirmation of a sale made in breach of the trust,” &e. 2 Perry Trusts, § 852, and notes.

The judgment of this court is that the judgment of the Circuit Court be affirmed.