Summary
In Ex Parte Dodd, 62 N.C. 97, it was held that where any members of a class to whom an executory devise is limited are in esse the Court may order, in a proper case, a sale of the devised land, otherwise when no such members are in esse.
Summary of this case from Hodges v. LipscombOpinion
(January Term, 1867.)
Where any members of a class, to which an executory devise is limited, are in esse, a court of equity in North Carolina will, upon a proper case being made, order a sale of the land devised; otherwise, where no such members are in esse.
PETITION for the sale of land, which had been devised to Orren L. Dodd during his life, and at his death, "in fee simple to his child or children, if he has any living at his death, or the issue of any of the said Orren L., who may predecease him"; failing such issue, however, the whole "shall belong to and be equally divided amongst the children of his brother, Dr. Warren Dodd," etc. The petitioners, besides (98) Orren, were his children, who were under age. It was stated that Dr. Warren Dodd was about fifty years of age, and had never married. Otherwise, a proper case for sale was reported by the Master as having been made out by the petition, and the affidavits of several persons filed in the cause.
B. F. Moore, for the petitioners.
No counsel contra.
The petition was filed to Fall Term, 1866, of JOHNSTON, and upon a report of the Master and affidavits, set for hearing and transmitted to this court.
We deem it unnecessary to express any opinion in relation to the correctness of the interesting account given by the counsel for the petitioners of the origin and extent of the chancery jurisdiction as exercised in the Courts of Equity of this State. The powers of such courts to order the sale of the real estate of infants, upon the application of their guardians, showing that the interests of their wards would be promoted by it, can not be questioned since the passage of the Act of 1827, ch. 33. See Rev. Code, ch. 54, sec. 32. Troy v. Troy, 45 N.C. 85; Watson v. Watson, 56 N.C. 400, and Houston v. Houston, (100) ante, 95, are instances to show where the power will or will not be exercised. It is certain that if land be devised to a person for life, with an executory devise in fee to his children, the court can not order a sale of the land before the birth of any child, because, not being in esse, there can be no one before the court to represent its interests. Such was the case in Watson v. Watson. But if there be any children in esse, in whom the estate in fee can vest, a sale may be ordered, because, if their interests require it, they may be represented by their guardians; and this may be done, though all of the children of the class may not yet have been born. Such is the case now before us, with the exception that there is an executory devise to the unborn children of another person, depending on the event of the tenant for life dying without leaving issue. Can this latter circumstance make any difference? We think not, because the first class of children are the primary objects of the devisor's bounty; and as they have vested remainders in fee, and as their interests, as well as that of the tenant for life, will be promoted by having the land sold and the proceeds invested in other lands, or in stocks or other securities for their use, the Court of Equity is authorized, under the general power conferred by the act to which we have referred, to order a sale. In the new investment, the interests of the second class of executory devisees must be provided for by proper limitations, and we think there should be a regular guardian appointed for the infant petitioners before any sale is ordered.
PER CURIAM. Ordered accordingly.
Cited: Morris v. Gentry, 89 N.C. 252; Miller, ex parte, 90 N.C. 627; Overman v. Sims, 96 N.C. 455; Tate v. Mott, Ibid., 22; Irvin v. Clark, 98 N.C. 445; Branch v. Griffin, 99 N.C. 183; Barcello v. Hapgood, 118 N.C. 726; Marsh v. Dellinger, 127 N.C. 362; Hodges v. Lipscomb, 128 N.C. 62; Springs v. Scott, 132 N.C. 552; Deal v. Sexton, 144 N.C. 161; Jones v. Whichard, 163 N.C. 245.
Dist.: Whiteside v. Cooper, 115 N.C. 576.
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