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Nav. Co., 111 N. C., 439, 19 L. R. A., 247. It is well settled that courts of equity, as they existed in the State prior to the Constitution of 1869, possessed the power to order the sale of lands of infants and tenants in common when partition was impracticable, and to administer trusts. We can not do better than refer to the learned and exhaustive argument of Mr. Moore in Ex Parte Dodd, supra. It is equally clear that the Superior Courts, under our present judicial system, have the same power and equitable jurisdiction as the courts. of equity had prior to 1858. Barcello v. Hapgood, 118 N. C., 726, 728.

"Where property has been settled by will or deed for life. with limitations over to persons not in being, who are incompetent to exercise a legal judgment, the Legislature may authorize a sale and the reinvestment of the proceeds for the same uses, if such a course will be for the benefit of all concerned or beneficial to some of them and not injurious to the rest." Hare's Am. Const. Law, 816. "Such a sale simply turns the property into another form where it may bear fruit for the first taker, who would otherwise have a barren inheri tance and be postponed as regards real and substantial benefit to persons yet unborn. It can not, however, be properly exercised unless the proceeds can be placed in trust and held securely for the executory devisee or remainderman." Ibid, 817.

In New York the question has received a careful consideration. In the case of Brevoort v. Grace, 53 N. Y., 245, 252, after declaring that courts of equity have the power to authorize the sale of lands belonging to infants in esse, the court proceeds to say: "Doubts were expressed in some of the cases whether this power extended to those not in being who might thereafter be entitled to some estate in the premises. The reason upon which the rule is based as to the former applies with equal force as to the latter. In both, there is a

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want of capacity to manage and preserve the property so as to protect the interests of those who are or may become en titled thereto, hence the necessity of devolving this duty upon the sovereign. For this purpose, the Legislature under our system represents and possesses the powers of sovereign authority and may discharge the duty by either general or special laws as will best protect the rights of those interested, although it is obvious that the former should be preferred in all cases when practicable.”

In Soheir v. Gen'l Hospital, 3 Cush. (57 Mass.), 483, 497, the court says: "The Legislature authorizes a sale, taking care that the proceeds shall go to the trustees duly appointed in pursuance of the will of Benja Joy, for the use and benefit of those having the life estate and of those having the remainder under the will. This is depriving no one of his property, but is merely changing real into personal estate for the benefit of all parties in interest. This part of the resolve, therefore, is within the scope of the power exercised from the earliest time and repeatedly adjudged to be rightfully exercised by the Legislature. It is deemed indispensable that there should be a power in the Legislature to authorize a sale of the estates of infants, insane persons and persons not known or not in being, who can not act for themselves. The best interests of those persons and justice to others often require that such sales should be made. It would be attended with incalculable mischief, injuries and losses, if estates in which persons are interested, who have not capacity to act for themselves or are not in being, could under no circumstances be sold and perfect titles effected. But in such cases the Legislature, as parens patriae, can disentangle and unfetter the estates by authorizing a sale, taking precaution that the substantial rights of all parties are protected and secured."

In Pennsylvania, 14 S. & R., Estep v. Hutchman, (29


Pa.), 435, Gibson, being then Chief Justice, the court says: "Even in England, an act of Parliament is sometimes necessary to assist the almost unlimited power of the Chancellor.. A conveyance made by persons authorized by the Legislature must then, it would seem, be prima facie evidence of good title in the vendee against all claiming under the vendor." The constitutionality of an Act upon this subject was sustained by the court. See also Blagge v. Miles, 1 Story, 426. Article XV, Section 2, of the Constitution provides that, "The General Assembly shall regulate entails in such manner as to prevent perpetuities." While it is not necessary to hold that this language gives to the Legislature the power to pass either general or special laws destroying entails created before the enactment of such statutes, it would seem that the power is conferred to enact general laws vesting in the courts the power to deal with and regulate the sale of property entailed, to the end that perpetuities may be prevented. This construction of the provision is not only consistent with, but it would seem necessary to effectuate, the policy of the law to prevent entails hampering the sale of property, thus preventing its free alienation and improvement. This has always been recognized and enforced as a fundamental principle of American law. We think both upon principle and authority the statute is constitutional and authorizes the sale of real estate conveyed or devised before its enactment.

The importance of this question and the apparently unsettled condition of the law in this State leading to the passage of the Act of 1903, we think justifies the length of this opinion and the citation of the authorities. The Act carefully prescribes the procedure and if the courts shall be diligent to ascertain the facts in each case and proceed with caution in making orders therein, the purpose of the Legislature will be accomplished without doing violence, but rather in accordance with the principles of our jurisprudence and


the preservation and protection of the rights of parties. In this cause it will be advisable, when it shall come before the court, to set out in detail the condition of the property and of the parties, and in all respects conform to the procedure provided by the Act.

Upon a careful examination of the cases in our own Reports and those of other States, we are of the opinion:

1. That without regard to the Act of 1903, the court has the power to order the sale of real estate limited to a tenant for life with remainder to children or issue, upon failure thereof, over to persons, all or some of whom are not in esse, when one of the class being first in remainder after the expiration of the life estate is in esse and a party to the proceeding to represent the class, and that upon decree passed, and sale and title made pursuant thereto, the purchaser acquires a perfect title as against all persons in esse or in posse.

2. That when the estate is vested in a trustee to preserve contingent remainders and limitations the court may, upon petition of the life tenant and the trustee with such of the remaindermen as may be in esse, proceed to order the sale and hind all persons either in esse or in posse.

3. That since the Act of 1903, Chapter 99, the court has the power, when there is a vested interest in real estate and a contingent remainder over to persons who are not in being or when the contingency has not yet happened which will determine who the remaindermen are, to order the sale by conforming to the procedure prescribed by the Act.

4. That the Act is constitutional and applies to estates created prior to its enactment.

Of course in each of the classes named, the decree must provide for the investment of the fund in such way as the court may deem best for the protection of all persons who have or may have remote or contingent interests.

In the case before us, the judgment must be so modified


that the judge of the Superior Court of Mecklenburg County, in term, shall require the pleadings to be amended to conform to the procedure provided by the Act of 1903, and that all further proceedings, orders and decrees be in accordance therewith.

The plaintiffs will pay the costs of this court, to be re covered by them from the commissioner upon the sale of the property in controversy.

Judgment Modified and Affirmed.

(Filed May 5, 1903.)

1. EVIDENCE-Conflicting Evidence- Verdict-Questions for Jury. Where the evidence in a case is conflicting, the weight and credibility thereof is for the jury, and the verdict thereon is conclusive.

2. INSTRUCTIONS-Negligence-Contributory Negligence.

That certain parts of an instruction given on the issue of negligence

pertains more properly to the issue of contributory negligence is not prejudicial to the defendant, if it operates, as in this case, more strongly against the plaintiff if given on the first issue than on the second.

MONTGOMERY, J., dissenting.

ACTION by J. F. Gordon against the Seaboard Air Line Railway Company, heard by Judge W. S. O'B. Robinson and a jury, at October Term, 1902, of the Superior Court of UNION County.

This is an action for the recovery of damages for personal injuries received by the plaintiff in attempting to alight from a moving train at the invitation of the conductor, as alleged by the plaintiff.

The following extracts from the complaint sufficiently pre sent the essential facts involved in the case, to-wit:

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