In Re Post

13 R.I. 495 | R.I. | 1882

It is well settled that a legislature has power to authorize a guardian or trustee, by special vote or statute, to convert the real estate of his infant ward or cestui que trust into personal property whenever the conversion is for the benefit of the infant. The schedules of the General Assembly of this State show frequent exercises of this power. In exercising it the legislature acts in its capacity of parens patrioe, doing for the infant what the infant would probably do for himself but for his disability. Clarke v. VanSurlay, 15 Wend. 436; Cochran v. Van Surlay, 20 Wend. 365;Rice v. Parkman, 16 Mass. 326; Sohier v. Mass. Gen.Hospital, 3 Cush. 483; Clarke, Executor, v. Hayes, 9 Gray, 426, 428; Carroll et al. v. Olmstead et als. 16 Ohio, 251;Todd v. Flournoy's Heirs, 58 Ala. 99; Blagge v. Miles, 1 Story, 426; Bambaugh v. Bambaugh, 11 Serg. R. 191;Thurston v. Thurston, 6 R.I. 296, 302.

The contention here, however, is not that the power does not exist in proper cases, but that a proper case did not exist for its exercise. The estate was given to certain persons for life, with remainders over, some of the remainder-men being unborn when the conversion was authorized, and others of them infants who did not sign the petition for it. The case stated shows that, when the conversion was authorized, the annual income from the estate was in excess of the taxes and of the expenses incidental to its care, and that the reason for conversion given in the petition was that the estate had become "of too high a value to be used for agricultural purposes, in consequence of the demand for the same by persons visiting Newport in the summer season for the erection of summer residences." From these facts it is argued that it must have been patent to the General Assembly that the estate was appreciating, so that to hold it was for the benefit of the remainder-men, and to sell it was to sacrifice their prospects to the interests of the life-tenants; and, consequently, that the General Assembly did not act in its capacity of parens patrioe, doing for the remainder-men only what they would have probably done for themselves but for their disability.

If the view that the estate was appreciating, so that to sell it was to sacrifice the prospects of the remainder-men to the interests of the life-tenants, were the view which must have been taken by the General Assembly, we should hesitate to say that it acted within its proper powers. See Burke v. Mechanics'Savings Bank, 12 R.I. 513. We are of the opinion, however, that the action of the General Assembly in such a case is not to be judged by the result, so that the conversion shall be decided to be valid or invalid according as it turns out to be for the benefit or the injury of the infant, but that it is enough if the General Assembly, acting according to its judgment at the time, in view of the then existing facts, comes fairly to the conclusion that the conversion will be for the infant's benefit; for otherwise the same act of conversion might be held to be valid at one time and invalid at another, according to the variations of the market. We are also of the opinion that the action of the General Assembly must be taken to be prima facie valid, and that the burden of showing its invalidity is on those who seek to impeach it. Now taking these two rules for our guidance, we think the case stated for our opinion falls short of showing that the resolution authorizing the conversion was not duly passed; for it may well be that in 1844, the General Assembly, looking at the matter as it then presented itself, came to the conclusion, after due inquiry and consideration, that the price of real estate in Newport, situated as this estate was, had culminated, and that there was a probability that it might decline, and that therefore it would be for the benefit of the remainder-men, as well as of the life-tenants, to have the estate presently converted into money. On the case stated, therefore, our opinion is that the resolution authorizing the conversion was valid; and indeed we may add that, if the conclusion of the General Assembly was as we have supposed it might have been there is nothing in the case stated to show that it was not correct.

Upon the assumption, therefore, that all the facts which can affect the question above considered have been fully and truly stated, we declare it to be our opinion that Morgan Gibbes Post, under his contract, ought to take the title which Edwin A. Post and wife have in the estate which he has agreed to purchase of them.

We add, that inasmuch as Edwin A. Post and wife have held the estate adversely for nearly forty years, the last ten of which have elapsed since the expiration of the life-estates, they have a good title under the statute of possessions against all thecestuis que trustent now living, who were under no disability when the life-estates expired; for though the statute does not ordinarily run against cestuis que trustent in favor of a trustee, it will run against them in favor of a purchaser of the trust estate. 2 Perry on Trusts, 2d ed. §§ 860, 865. One of the briefs contains the intimation that one of the cestuis que trustent has a wife living, and contends that though his interest may be barred, her inchoate right of dower still subsists as a cloud upon the title. The brief, however, does not intimate, and we presume it is not the fact, that the cestui que trust married before the alienation, and if he married afterward, while the estate was held adversely to him and his trustee, his wife cannot have acquired any inchoate right of dower, for she can only have dower in an estate whereof either her husband, or some person to his use, is seised during the intermarriage, Gen. Stat. R.I. cap. 218, § 1; 4 Kent Comment. 38; 1 Greenleaf's Cruise, *156.

The briefs discuss other points, on which, however, as the facts bearing on them are apparently not fully disclosed in the case stated, we forbear expressing any opinion further than to say that if the cestuis que trustent who have given releases to Mrs. Post and have taken their proportions of the purchase money paid by her for the estate, did so advisedly, with full knowledge of the facts, when free from all constraint resulting from their relation to the trustee, and if they were at the time not subject to any disability, then they must be deemed to have consented to the alienation and to have confirmed it, and can no longer have any right to complain of or impeach it as a breach of trust. They certainly cannot be entitled to have both the estate and the purchase money into which it was converted. 2 Perry on Trusts, 2d ed. §§ 849-853.