In Junе, 1872, Mary A. Mayall conveyed to the plaintiff certain real estate in the city of Minneapolis. Plaintiff received the conveyance for the purposes and upon the trusts set-out in a declaration of trust, which she subsequently executed, in which, after describing the conveyance to her, and reciting that it was the intention of the grantor to convey the premises to her in trust, as thereinafter set forth, she declared as follows:
“Now, therefore, in consideration of the premises, and to carry out the intention of said grantors, and in considerаtion of the sum of five dollars, to her in hand paid by said parties of the second part, the receipt whereof is hereby acknowledged, the said Ada L. Mayall, party of the first part, has proclaimed and declared, and*512 by these presents does proclaim» and dеclare, to the public, that she is possessed of, has, and holds the above-described premises as trustee, in trust for said Harry Hale Mayall and the heirs of his body, forever, and in case he should die without heirs begotten in lawful wedlock, then the equitable title to one undivided half of sаid premises is to revert back to said party of the first part, her heirs, executors, administrators, and assigns, forever, and the other undivided half of said above-described premises she will hold as trustee in trust for said Mary A. Mayall and the heirs of her body forever. At the death of either said рarty of the first part or said Mary A. Mayall without issue, the survivor, her heirs, executors, administrators. and assigns, shall have and hold the aboye:described premises forever. And the said party of the first part does hereby further proclaim and declare that she will, in the month of January of еach year, commencing in the year A. D. 1882, render a strict, true, and full account of, and pay over, all moneys and rents arising and issuing out of the above-described premises to said Harry Hale Mayall and the heirs of his body, and, in case of his death without such heirs, one-half thereof to said Mary A. Mayall and the heirs of her body.”
The Mary A. Mayall mentioned in the declaration of trust is not the grantor in the conveyance, but her daughter. The trustee and the beneficiaries named in the declaration of trust are the sole heirs of the grantor in the deed.
The plaintiff brought this action in the district court, as trustee and in her own right, against Harry Hale Mayall, her brother; his son Samuel, an infant; Mary A. Mayall, now Bruner, her sister ; and her son, S. Mayall Bruner, an infant. The adult defendants appeared and admitted the allegations of the complaint, and consentеd that a decree might be entered as prayed for. The infant defendants appeared by their guardian ad litem and submitted their rights and interests to the protection of the court.
The court found that the real estate was worth $100,000; that it was valuable only for business and for improvement; that it can only be made to pay an income by being built on and improved; that the present buildings on it are old and of little value, and cannot be maintained in a tenantable condition; that the rents therefrom have been gradually decreasing, and 'will continue to do
Upon these findings of fact the court found, as a conclusion of law, that it was necessary for the preservation of the trust property that it should be either sold, mortgaged, or leased, as prаyed for in the complaint, and rendered judgment that the plaintiff, as trustee, be authorized and empowered to sell the property at private or public sale, or lease the same for a term of years, or mortgage the same and with the proceeds of suсh .mortgage improve the property in the manner suitable to its locality, within one year from the date of the decree, provided, however, that the trustee should not complete and consummate any such sale, mortgage, or lease, without first reporting the terms of such sale, mortgage, or lease to the court,' and obtaining the approval thereof by the court; also, that any such sale, mortgage, or lease shall be made free and clear of any present or future claim of title to or interest in the real estatе on the part of any of the parties to the action, of any present or future beneficiaries under the trust; also, that the proceeds of any such sale, mortgage, or lease shall be held in lieu of the trust property, to be administered in accordance with the terms of the declaration of trust under the order and direction of the court.
The court, in its judgment, reserved the action for the purpose of approving or disapproving any sale, mortgage, or lease, and fixing the terms thereof, and also extending the time, if necessary, within which the plaintiff might make the same, and for the purpose of making the proper order as to the administration and investment of the proceeds. From this judgment the infant defendants, by their guardian, appeal. No question is made as to the validity of the trust.
The inherent power of a court of equity tо do these things in such a case rests upon the paramount consideration of necessity and “high expediency.” Neither statutory authority nor express authority, in the deed or other instrument of trust, is necessary. At common law a court of equity had the inherent power to do whаt was necessary to be done to preserve the trust from destruction. The district court, as a court of general jurisdiction both at law and in equity, has the same inherent power, in that respect, as was possessed by a court of chancery. The authorities are all оne way on this question. Hale v. Hale,
None of the cases cited by appellants’ counsel seem to us to be in point. Many of them are cases which deny the inherent power of a court of chancery to sell an infant’s real estate. But this is in no proper sense a judgment ordering a sale of an infant’s estate for the supposed benefit of the infant. If it was, the matter would be exclusively within the jurisdiction of the probate court. The infants’ interest here is a mere contingency, and it is not merely this contingent interest that is to be sold, mortgaged, or leased, but it is the entire trust property, and this is done solely for the purpose of preserving the trust from destruction, and the infants are made parties merely because they have a contingent interest in the trust.
2. The power of the court to bind parties not in being, but who may hereafter come into being and have an interest in the trust, rests uрon the same ground of necessity and “high expediency.” All persons in being who have any interest in the trust have been made parties. Of course, those not in being cannot be made parties; and if the court cannot bind them by its decree or judgment, its inherent power to do with the рroperty whatever is necessary to preserve the trust would be so hampered and limited as to be in a great measure rendered nugatory.
The rule that only those who are parties to a suit are affected by the decree is subject to certain well-recognized exceptions in equity. Thus, where there is real estate in controversy which is subject to an entail, it is generally sufficient, all parties having antecedent estates being before the court, to make the first tenant in esse in whom an estate of inheritance is vested a рarty with those claiming the prior estates, without making any persons parties who may claim in remainder or reversion after such vested estate of inheritance. Story, Eq. PI. § 144. The rule is stated thus in Giffard v. Hort, 1 Sch. & Lef. 386, 408: “Where all the parties are brought before the court that can be brought before it, and the court acts on the property according to the rights that appear, without fraud, its decision must of necessity be final and conclusive. It has been repeatedly determined that, if there be a tenant for life, remain
If several remainders are limited by the same deed, this creates a privity between the person in remainder and all those who may come after him; and a verdict and judgment for or against the former may be givеn in evidence for or against the latter. If there are never so many contingent limitations of a trust, it is sufficient to bring the trustees before the court, together with him in whom the first remainder of inheritance is vested; and all that may come after him will be bound by the decree, though not in esse, unlеss there be fraud and collusion between the trustees and the first person in whom the remainder of inheritance is vested'. Freeman, Judg. § 172, and cases cited. In Miller v. Texas & Pac. R. Co.,
The trustee and every person having any vested interest in the trust property, as well as every one in being who has any contingent interest in it, were before the court. It is also to be noted, although perhaps not material, that every class of possible parties not in being who may become interested in the trust property were represented before the court by one or more of the parties to the
There is nothing in the contention that the probate court, and not the district court, has jurisdiction of the matter so far as thе interest of the infant defendants is concerned. The subject-matter of the action is the management and administration of a trust. The controversy is between infants and third parties. It might as well be claimed that the district court has no jurisdiction in partition, foreclosure, or any other recognized head of equity jurisdiction, whenever a minor chances to be interested.
Judgment affirmed.