106 Tenn. 607 | Tenn. | 1901
In 1895 J. W. S. Ridley, by deed of gift, conveyed to liis son, Webb Ridley, a valuable farm of five hundred and eighty acres of land, in the county of Maury, upon the following trusts: That the said Webb Ridley, trustee, should permit and suffer his son, William Ridley, for and during his natural life, to have and receive the rents, incomes, and profits of said lands, and to exercise such control over the use, occupation, renting, and cultivation thereof as he, the said William, might deem proper, but in such way, nevertheless, that such lands, and the rents, incomes, and profits thereof, should not in any way be liable for the debts or contracts of the said William; that upon his,' the said William’s, death said lands should go to his children, and to the living issue of any deceased child, the issue taking • the parent’s share; that in case William left a widow surviving, she should have the right to occupy the land during her widowhood, sharing equally with the children, or their issue, the rents, incomes, and profits derived therefrom; that should said William at death leave a widow, but no children or issue of children, the trustee should suffer and permit her to receive and enjoy the income of the lands during her
In 1898 the defendants, the two Strudwicks, and one Carpenter, made a written proposition to the trustee and the life tenant, in which they agreed to purchase this property at the price of seventy-five dollars an acre, upon the condition lhat the latter parties would institute proper proceedings in the Chancery Court of Maury County, and procure an acceptance of the same.
Upon receiving the proposition the trustee, Webb, and the life tenant, William P. Ridley, at once filed a bill in that Court, to which all persons in interest, in esse, were made parties defendant as follows-: Annie ITalliday and W. P. Halliday, her husband, and their minor child, W. P. ITal-liday, Mary P. Ridley, and the infant children of Webb Ridley. Of these defendants Annie R. Halliday and Mary • P. Ridley were the children of the donor, J. W. S. Ridley, and the sisters of the trustee, Webb, and the life tenant, William Ridley.
Answers were filed by the adult defendants and by girar dians ad litem duly appointed for the minors. The answer of the adults conceded that it would be wise to accept the proposition of purchase, while those of the guardians ad litem simply craved the protection of the Court for the interest of the minors. The cause then proceeded to a reference to the Clerk and Master, who, after taking much proof, reported that the offer of purchase from the Strudwicks -and Carpenter was a very advantageous one, and recommended its acceptance by the Court. This report was unexcepted to, and the Chancellor entered a decree of confirmation, and at 'the same time made provision' for the investment of the money received for the purchase of the property, so that the interests of all 'parties, born and unborn, might
Ro question was made in the Court below by demurrer, or otherwise, as to the jurisdiction of the Chancery Court to grant the relief sought by the bill. While if that Court had been absolutely lacking ’ in jurisdiction of the subject-matter of the cause, then jurisdiction would not have been conferred by this failure to make an objection, by pleading, at the proper time (Richards v. L. S. & M. S. Ry. Co., 124 Ill., 516), still as a Chancery Court has unquestionably the power in a proper case, where it has the proper parties before it to convert realty into personalty (Ruggles v. Tyson, 104 Wis., 500; Gavin v. Curtin, 171 Ill., 641), a failure to make objection by some prelim:nary pleading is a waiver of objection that the Court is without jurisdiction to proceed in the cause.
But not only no jurisdictional objection was taken in the Court below, none is made here. To the contrary, the porver of the Court to decree the conversion of the realty into money under the conditions averred in the bill and established by the evidence, 'was conceded there, and is equally conceded in this Court. The only question made upon this appeal and by assignment of error is, that as the record shows that the life tenant, AYilliam Ridley, was unmarried and without chil
What may be the proper construction of this Oode section we think it unnecessary to determine in this cause. It is one of the sections of Chapter 3 of Title 2 of Part III. of the Code. This chapter is entitled “Of the Sale of Property of Persons under Disability,” and the body of the chapter is in keeping with the title. Section 5072 (this being -the first section of the chapter) provides that “the Court of Chancery may, for and on behalf of persons laboring under the disability of coverture and infancy, consent to and decree a sale of the property ... of such persons under the provisions of this chapter,” while Section 5073 provides that this “application may be made by bill or petition filed by the husband or regular guardian, to which the person under disability is a defendant, to be represented by nest friend or guardian ad liiem’’ etc.
The present bill is not filed within these statutory provisions. It is not filed either by a
There is no doubt that if there had been in being, and made a party by proper process to this cause, one of the first class of contingent remaindermen provided for in the trust -deed, the decree would have bound all other members of the class who subsequently came into being. That result follows from the doctrine of representation, it being assumed that the living representative would 'look after the interests of the ‘entire class by bringing to the attention of the Court the merits of the controversy, so far as they affected the class. But in the absence of a member of such class, can the decree herein pronounced carry the whole title to the purchasers ? This was the purpose in filing the bill, and if it fails in this respect the failure is absolute.
In Finch v. Finch, 2 Vesey, Sr., 492, in passing upon the rule of virtual representation as applied to the sale of lands limited in remainder, under a bill to execute trusts, Lord Hardwick said: “It is admitted to be necessary to bring in the first person entitled to the remainder and inheritance of the estate, if such is in being. It is true, if there is no such person in whom the remainder of the inheritance is vested in being, then it is impossible to say the creditors are to remain unpaid, and the trust be not executed until a son is born. If there is no first son in being, the Court must ■ take the facts as they stand. It would be a very good decree, and no son born afterward could- _ dispute it unless he could show fraud, collusion, or misbehavior in the performance of the trust.”
In Leonard v. Lord Sussex, 2 Vernon, 527, there was a tenant for life with remainder to his sons. The tenant for life, before he had a son born, brought a bill against the trustees, in whom the title was vested, for an account which
In Gaskell v. Gaskell, 6 Simons, 643, there was a tenant for life with remainder to his first and other sons in tail of an undivided moiety of certain estates. The tenant for life before a son was born to him filed his bill against his co-tenants for partition. Objection was made that the complainant then had no issue in being. But the Vice Chancellor (Shadwell) in overruling this objection said the Court had frequently decreed partition under such circumstances, and that a decree for partition in- that case would be binding upon the tenant in tail when he came into being.
In Gifford v. Hart, 1 Scho. & Lef., 408, Lord Redesdale announced the rule thus: “Courts of Equity have determined on grounds of high expediency that it is sufficient to bring before the Court the first tenant in tail in being, and if there be ,no tenant in tail in being, the first person entitled to the inheritance, and if no such person, Then the tenant for life. . . . Where all the parties are brought into Court, 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, remainder to his first son in tail, remainder over, and he is brought before the Court
Perhaps no one in the history of equity jurisprudence can more properly be said to be a master of the rules and practice of the English Chancery Courts. Before his elevation a? John Mitford he had published a work on “Equity Pleading and Practice,” which is regarded as a valuable text-book by the profession to this day. In that work he embodied . the rule of virtual representation which he subsequently announced, in the case last cited.
Turning to the cases determined by American Courts, with the exception of the Supreme Court of North ' Carolina, we find them holding the same rule. In Cheeseman v. Thorne, 1 Edw. Chy., 629, the Vice Chancellor held that the partition proceedings in that case would bind afterborn re-maindermen under the authority of Wills v. Slade, 6 Vesey, Jr., 498, even without the aid of statute.
In Kent v. Church, 136 N. Y. (S. C., 18 L. R. A., 334), in the course of its opinion the Court said: “Where an estate is vested in persons living subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate for all purposes of any litigation in reference thereto, and affecting the jurisdiction of the courts to
The case of Gavin v. Gavin, 171 Ill., 640 (S. C., 40 L. R. A., 777), is directly in .point. The complainant in that case, under the will of her father, was tenant for life, with remainder in' fee to her children, or to the issue of any of these children dying during the existence of the life estate, and in the event of her death without children or the issue of such, then remainder over to the testator’s sons. Before the birth of any child the life tenant filed a bill for the conversion of this real estate, stating strong equitable grounds therefor, and made as the only defendants thereto her brothers, who were contingent remaindermen of the second class. It was held that the bill was maintainable, and that the decree for sale of necessity would bind her after born children.
In addition we refer to Ruggles v. Tyson, supra; Sweet v. Parker, 22 N. J. E., 454; Baylor v. Dejarnette, 13 Gratt., 152; Faulkner v. Davis, 18 Gratt., 651; McArthur v. Scott, 113 U. S., 391.
It is true that this statement of the rule by the author is by its terms limited to cases in partition, but as we have already seen it was applied in Leonard v. Lord Saxon, supra, in the matter of account, and to the enforcement of a trust in favor of creditors by a decree for the sale of lands. Finch v. Finch, supra. No sound reason has been, or so far as we can discover, can be suggested why it should not apply in any other proceeding where a Court of Equity is exercising its jurisdictional power in disposing of real estate, the title to which is embarrassed by contingent remainders awaiting unborn remain-dermen. If in the one class of cases . necessity
In each case it is essential that the interest of the contingent remaindermen in the proceeds of the converted property be preserved by the decree directing the conversion. Monarque v. Monarque, 30 N. Y., 320. This being done we see no good reason why the rule of virtual representation should not apply. Even if the limitation or qualification suggested in Calvert on Parties, page 52 — that is, “that except under very particular circumstances no tenant for life should he capable
We have examined the cases from North Carolina referred to in the able and exhaustive brief of the counsel for appellants, and while they are entitled to great consideration, we think' they are overborne by the weight of authority. There is nothing in our own cases to exclude us from the rule we have already indicated, and we think that its adoption is consistent with sound policy, and when applied under proper restrictions will work to the advantage of all interests involved.
Before concluding, it is proper to say that upon the authorities it is immaterial whether in such a case the bill is brought by or against the tenant for life. Gaskell v. Gaskell, supra; Hale v. Hale, 146 Ill., 257; Leonard v. Sussex, supra; Story’s Eq. Pl., Sec. 145.
The decree of the Court of Chancery Appeals is affirmed.