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SPRINGS v. SCOTT.

der after his death, the court has the power to order the sale of the land. This would, under the decisions of this court, present a very serious if not insurmountable difficulty, but for the presence of the trustee to represent and preserve the interest of such children as may be born to the said Alva C. Springs. To the suggestion that this proceeding invoking the equitable powers of the court, should have been instituted in the Superior Court in term, in which we concur, it is sufficient to say that the case now being in the Superior Court by appeal will be retained, and all necessary amendments will be deemed to have been made, or, if necessary, be made in this court. Elliott v. Tyson, 117 N. C., 116, in which the authorities are collected. The power of the court to order the sale of real estate limited by deed or will to persons not in esse or upon contingent remainders, has been so often before this court that it would seem there could be no doubt as to the law in this State. It is manifest that in the opinion of the profession the question is not regarded as at rest. The eminent counsel who argued this case so informed us. There

is a large quantity of real estate in this State, especially in the towns and cities, the title to which is in such a condition by reason of contingent limitations that it can neither be sold nor improved, thereby being a burden on those who own the life estate, bringing no income and entailing a heavy expense to them by way of taxes and assessments for paving and other public improvements. We are told by counsel that the decisions of this court are not in accord with those of other jurisdictions in regard to the power of the court to order the sale of property, the title to which is thus fettered by limitations. Our attention was called in the argument and brief of counsel to an Act of the General Assembly passed at its last session, Laws 1903, Ch. 99, and the plaintiffs insist that, as this proceeding was instituted since the ratification of the Act, the court, if it should be of the opinion

SPRINGS v. SCOTT.

that under the law as it existed prior thereto the plaintiffs are not entitled to relief, will find in the Act the power to give the relief demanded. In Watson v. Watson, 56 N. C., 400, this court held that "a court of equity has no power to order the sale of land for the purpose of converting it into a more beneficial property when it is limited in remainder to persons not in esse.” The doctrine of this case was very materially modified by the court in Ex Parte Dodd, 62 N. C., 97, in which the same will was before the court. That was a petition for the sale of land. The devise was 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 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." The petitioners beside Orren were his chil- . dren, who were under age and represented by guardian. Dr. Warren Dodd had no children and was never married. Battle, J., says: "It is certain that if the 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 although 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 upon 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,

SPRINGS v. SCOTT.

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 their 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 of 1827, to which we have referred, to order the sale." It would seem that this language, which we have quoted at length because of its importance in the settlement of this question, can have no other meaning or construction than that, if the class first in remainder is represented, the court will take jurisdiction although there "is an executory devise to the unborn children of another person.' This, as we shall see, is in accordance with the authorities both English and American.

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In Williams v. Hassell, 74 N. C., 434, Reade, J., in discussing the power of the court in such cases, cites Watson v. Watson, supra. He makes no reference to Ex Parte Dodd, supra. He notices the dictum in Watson v. Watson, and then draws a distinction between a case in which the remainder is to all the children of the life tenant and one in which the remainder is to such children of his or her, as may be living at his or her death, in which case, as it can not be known who will be in the class, when the life estate falls in, there can be no one to represent the class. Ex Parte Miller, 90 N. C., 625; Young v. Young, 97 N. C., 132; Whitesides v. Cooper, 115 N. C., 570. It will be observed that the petition in that case was for a sale, there being no suggestion of a reinvestment of the proceeds to preserve the limitations. In Ex Parte Dodd the fund was ordered to be reinvested. The doctrine of representation is recognized in Branch v. Griffin, 94 N. C., 183; Overman v. Simms, 96 N. C., 451.

In Aydlett v. Pendleton, 111 N. C., 28, 32 Am. St. Rep., 776, the decision was based upon the ground that some of the parties interested objected to the sale. Shepherd, J., says:

SPRINGS v. SCOTT.

"Thus it will be seen that even according to this construction of a deed there are future contingent interests, and though these may be represented by some person in esse, it can not authorize the court in decreeing a sale for partition when there is objection by some of the parties interested. It is true that in some instances a person may represent the interests of those of his class who are not in esse, but the court only decrees a sale in such cases where the interests of the parties will be materially and essentially promoted." The decision in Overman v. Simms, supra, is based upon the ground that no children had been born to the life tenant. Irvin v. Clark, 98 N. C., 437. In Overman v. Tate, 114 N. C., 571, the same limitation was dealt with by the court as in Overman v. Simms. In this case the sale was ordered. It appeared that a child had been born to the life tenant, Annie Tate. Shepherd, C. J., says: "The attention of the court in Overman v. Simms, supra, does not seem to have been directed to the fact that the limitations were in trust, nor was the child of Annie, now Mrs. Weaver, born at that time. These considerations render it unnecessary to review the former decisions of this court." In this case the ulterior limitation or executory devise was to Thomas R. Tate in fee, who was a party to the proceeding. So that the question decided in Ex Parte Dodd was not presented.

Without discussing the case of Lipscombe v. Hodges, 128 N. C., 57, it is sufficient to say that the syllabus, "The courts will not decree a sale of land when it is limited in remainder to persons not in esse," is misleading. That was not the real ground upon which the case was decided. There was no trustee before the court in that case.

In Justice v. Guion, 76 N. C., 442, the land was conveyed to a trustee for the benefit of the plaintiff for life with remainder to her children who should survive her, to be equally divided between them, with a provision that if either of the

SPRINGS v. SCOTT.

children should die before the mother, leaving a child or children, they should represent their parent. The trustee died and upon petition the court appointed a trustee, but refused to order a sale of the land for reinvestment. The life tenant had children. This court affirmed the judgment. It is evident from the opinion that the court in Overman v. Simms, supra, overlooked the fact that there was a trustee, and the limitations over were in trust. In Simpson v. Wallace, 83 N. C., 477, there was no trustee.

In Smith v. Smith, 118 N. C., 735, it is impossible to tell what the limitations were. It is simply stated that the lands were conveyed to certain persons "in trust for certain individuals therein mentioned with limitations and contingent interests to numerous other persons therein named." It does not appear whether the trustees were parties or whether there was any one in esse to represent those first in remainder. The opinion is equally indefinite and does not cite Ex Parte Dodd, but does cite Watson v. Watson and Justice v. Guion. The court overlooked the decision in Overman v. Tate. It must be conceded that these cases are in conflict with the current of authority in this State. It is unfortunate that a question of so great practical interest, involving the security of title to valuable real estate, should be in even apparent conflict.

In Finch v. Finch, 2 Vesey, 491, Lord Hardwicke says: "It is admitted to be necessary to bring the first person in entitled to the remainder and inheritance of the estate, if such is in being. 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 afterwards could dispute it unless he could show fraud, collusion or misbehavior in the performance of these trusts."

We have not discussed these cases for the purpose of overruling them, but to classify and distinguish them, and to show

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