84 W. Va. 348 | W. Va. | 1919
By a deed of April 17, 1894, H. D. Shrewsbury and his wife, Pidgie Q., conveyed to Samuel L. Flournoy, trustee, certain property on Capitol Street in the city of Charleston, now occupied by the Colonial Amusement Company, the Diamond Shoe & Garment Company, and Cablish Bros., in trust for the said Pidgie Q. Shrewsbury for and during the natural life of her husband, and after his death in trust for the said Pidgie Q. Shrewsbury during her life and for their children, Prances C., Herman D., Talbott Q., and Kenneth 0., for and during their natural lives, respectively, share and share alike, with remainder in fee after 'the death of said Pidgie Q. Shrewsbury and the death of each of said children to the respective heirs at law of said children, respectively.
Flournoy having died November 28, 1908, George H. Shrewsbury was substituted trustee in his stead, and September 28, 1916, J. Harwood Graves was substituted in lieu of George H. Shrewsbury who in the meantime had also died. 'Of the cestuis que trust now living Talbott Q. Shrewsbury, Kenneth 0. Shrewsbury and Prances C. Shrewsbury, now the wife of J. Harwood Graves, trustee, had attained their majority before May 15, 1917, and they together with J. Har-wood Graves, trustee, and in his own right, and W. D. Payne, appended to whose name in the descriptive term, “special commissioner,” on that day joined in the execution of a deed purporting to grant to W. B. Geary property covered by the trust and described in the deed of May’ 15,. 1917, as all that certain lot or parcel of land situate in the city of Charleston, West Virginia, on the west side of Capitol Street, and fronting thereon 170 feet, described as follows: “Beginning on
On July 17, 1917, W. D. Payne, special commissioner, executed to Geary a deed conveying to him the property described in detail as in the deed in which Payne joined as such commissioner, in each of which he set out, but with more particularity in the latter, the source of his authority, decrees entered May 10 and July 11, 1917, in a suit then pending in the common pleas court of Kanawha County in which Talbott 'Q. Shrewsbury and others were plaintiffs and.J. Harwood Graves, trustee, and others were defendants, both of which decréss are filed as exhibits with the bill in this cause. On June 8, 1917, the plaintiff Geary and the defendant J. F. Butts entered into a contract of sale and purchase for 75 feet, more or less, of the property theretofore purchased by Geary from the Shrewsbury heirs, and running back the full depth of the property, with other stipulations as to the consideration and terms of payment and acknowledgment of the rights of the occupants and payment of rentals by them, none of which have important bearing upon the issues' involved upon this appeal.
On June 19, 1917, Geary, Butts and defendant ■ U. G. Young entered into another contract respecting the property whereby Geary agreed to sell direct to Young 50 feet, more or less, of the property purchased by Butts of Geary, this transaction involving the ground covered by the' buildings occupied by the Colonial Amusement Company and the Dia
Ostensibly to enforce performance of these contracts, but really to adjudicate the title thereto to be valid and marketable under the provisions of the trust to which' the property is subject, apparently is the chief purpose of this litigation. The marketability of the title depends upon the proper construction of the following provisions of the trust binding upon the property, the.trust executed by H. D. and Pidgie Q. Shrewsbury to Flournoy in April, 1894: “In trust, nevertheless, for the said Pidgie Q. Shrewsbury for and during the natural life of the said H. D. Shrewsbury, and after the death of the said H. D. Shrewsbury for the said Pidgie Q. Shrewsbury, Frances C., Herman D., Talbott Q., and Kenneth 0., for and during their natural lives, respectively, share and share alike, with remainder in. fee after the death of each of said children to the respective heirs at law of said children, respectively, according to the West Virginia statute of descents, excluding rigorously, however, every husband whose «laim on said property may be based solely on a curtesy right, and every wife whose claim on said property may be based on a dower right alone. But on the death of said Pidgie Q. Shrews-bury, after the death of Harry D. Shrewsbury, her interest In said property shall vest in said children for life, with remainder in fee to their heirs at law in the same manner as their own interest therein would pass to their own heirs at .law under this deed.
“If any of said children shall die under twenty-one years of age, and without issue, then this deed shall stand for the surviving children as though the name or names of said child or children dead before the age of twenty-one years unmarried and without issue, nowhere appeared in this deed as beneficiaries or cestuis que trust, and any heir at law of any of said children shall be entitled to his share and interest in said property without awaiting the death of any other of said children. As soon as anyone legally becomes an heir at
Herman D. Shrewsbury died at the age of 23 years April 21, 1916, unmarried, intestate and without issue. Frances C. Shrewsbury, n,ow Frances S. Graves, is 32 years of age and has one son, James Harwood Graves, Jr., an infant of four years. Talbott Q. Shrewsbury, now about 28 years of age, and Kenneth 0. Shrewsbury, now about 26 years'old, are still living, unmarried and without issue.
Under the terms of the trust Pidgie Q. Shrewsbury was the owner of the entire equitable interest in the property during the life of her husband, and upon his death the legal title 'was held by the trustee for the joint benefit of Pidgie Q. Shrewsbury and the children, Frances C., Herman D., Tal-bott Q., and Kenneth 0. Shrewsbury, for and during their natural lives, with remainder over in fee to the respective heirs at law of each of said children after the death of Pidgie Q. Shrewsbury. The latter survived her husband and later died while all her four children were living, each of whom lived to be over the age of 21 years, and are now living, except Herman D. Shrewsbury, as noted above.
Upon the death of Pidgie Q: Shrewsbury her one-fifth equitable interest for life passed to her four children for life, thus giving to each, with what he already had, an undivided one-fourth equitable interest for life, with remainder over to their heirs at law. Upon the death of Herman D, Shrews-bury, unmarried and without issue, his undivided one-fourth interest became vested in his sister and two brothers in their
It was owing to the difficulty of effecting a valid sale of property subject to such contingent estates that the legislature in 1911 enacted a law designed to remedy this situation. Sections 24b (1) — 24b (12), ch. 71, Barnes’ Code 1918. This act authorized the circuit court of the county in which land subject to contingent or other remainders is situated, upon a bill filed by any of the persons specified in section 24b (2), to' decree a sale or lease of such land and substitute the proceeds of such sale or lease therefor, giving to all persons the same estates and interests, vested, contingent or expectant* in such proceeds as they had or would have had in the landt itself. In specifying who shall be made parties to such suit, section 24b (3) provides: • “All persons in being who have vested, contingent or expectant estate or interest, either at law or in equity, in said land, or in the oil, gas, coal or other minerals to be sold or leased, shall be made parties, and where the bill is filed by the guardian of an infant, or the committee of an insane person, such infant or insane person shall be made defendant. Provided, however, that the joinder of any person having only a contingent or expectant estate or Interest may be dispensed with where the person not joined is virtually represented by any other party or parties to the suit; and where such virtual representation existed, no order or decree or sale or lease made thereunder shall be deemed erroneous or void because of such nonjoinder.”
As that section requires, all persons in being having inter
The interests of the unborn children were fully represented and protected by those made parties to the suit, namely, the three surviving life tenants, J. Harwood Graves, •Jr., remaindermen in fee of an undivided one-fourth interest, and the trustee representing the whole estate and all interests therein. It is admitted by appellants that the infant re-mainderman,. through his guardian ad litem, sufficiently represented other possible unborn children of his parents, contingent remaindermen with him as to his one-fourth interest, as to protect and safeguard their interests. This is in accordance with the familiar rule of necessity and convenience that where there are remaindermen of a class in being who are made parties to a cause affecting the property, the decree rendered therein generally will bind all others who subsequently come into the class, on the theory that the living rep: resentative will look after and protect the interests of the whole class. Boal v. Wood, 70 W. Va. 383; Tonnele v. Wetmore, 195 N. Y. 436; Kent v. Church, 136 N. Y. 10; Betz v. Farling, 274 Ill. 107; Thompson v. Adams, 205 Ill. 552; Hale V. Hale, 146 Ill. 227; Springs v. Scott, 132 N. C. 548; Ex ’parte Yancey, 124 N. C. 151; Bidley v. Halleday, 106 Tenn. 607; Reed v. Ala. & G. Iron Co., 107 Fed. 586; McClure v. Crume, 141 Ky. 361; Harrison v. Wallton, 95 Va. 721; 23 R. C. L. 584; Note Ann. Cas. 1917A 614.
The appellants contend that while J. Harwood Graves, Jr., through his guardian ad litem; represents others who may
■ But the interests of the unborn remaindermen here were -represented not only by a' living remainderman, but by the trustee and life tenants. To the former was intrusted the full legal title to and control over the property, -and therefore he was a representative of all interests, including those of per-sons not yet'in esse. “With -respect to the life tenants, the prevailing view is to the effect that they may represent the inheritance where there are no remaindermen in being when .the court is called upon to act in regard to property in which remainders have been created. Burlingham v. Vandevender,
Here the unborn heirs were represented by a living re-mainderman whose interests were identical with those of the unborn, by the trustee, and by the life tenants, all parties to the suit, and finally by the court, a representation fully adequate, we think, to safeguard and protect the interests of any remaindermen not yet in esse. Furthermore, section 24b (3), ch. 71, Barnes’ Code 1918, expressly requires only persons in being having any vested, contingent or expectant estate or interest in the property to be made parties, thus by implication recognizing the sufficiency of their representation of those who may later be bom. Whether that would be sufficient in every case we do not deem it necessary to decide at this time. In this instance, however, the interests of unborn remaindermen were sufficiently represented and protected by those' who were made parties, and Geary, therefore, acquired a valid legal title at the sale directed in that suit.
■ The contention that the court of common pleas of Kanawha County did not have jurisdiction to decree the sale, since section 24b (1) bestowed such authority upon the circuit court of such county, is without merit. Section 1, Art. 8 of the Constitution of this state vests judicial power “in a supreme court of appeals, in circuit courts and the judge thereof, in
Affirmed and remanded,