SOHIER et al. v. WILLIAMS et al., 22 F. Cas. 772

CURTIS, Circuit Justice. The purchaser objects to taking the title offered by the vendor, because the latter had not power, under the will of Mrs. Gibbs, to make the sale. The thirteenth clause of her will confers the power to sell “when the major part of my children shall recommend and advise the same.” This makes the recommendation and advice of a major part of her children a condition precedent to the exercise of the power. If this condition has not been complied with, it is the same as if no power of sale existed, and no title can be made. The question is, if it has been complied with.

This is purely a question of the intention of the testatrix, to be deduced by construction from her will. Some very nice distinctions concerning the survivorship of powera have been taken in the ancient common law, though I apprehend that, even in those cases, the only purpose of the courts was, to arrive at the actual intention of the donor of the power. Co. Litt. 112b, 113a, 181b; Dyer, 177. And in modern times, this is clearly the object in all those cases which are not governed by statute law. Peter v. Beverly, 10 Pet. [35 U. S.] 532; [Bank of U. S. v. Beverly] 1 How. [42 U. S.] 134; Osgood v.

Franklin, 2 Johns. Ch. 19; Shep. Touch, (by Preston) 520. To determine the question raised in this case, it is therefore necessary to ascertain whether the testatrix, by the words, “the major part of my children,” meant all her children living at her decease when the will speaks, or only such of her children as might be living when it should become necessary to act. The power of sale given to the trustee, and made dependent for its exercise upon the const‘lit of a majority of the children, is merely for the purpose of reinvestment.

In our country, where such great changes take place in the uses of lands during one life, prudence dictates the insertion of such a power in nearly every settlement of property. And when this testatrix was creating a trust, to continue during so many lives, and was inserting such a power, there is a probability that she intended it should not become impossible to exercise it, on the decease of onlj' two of her children, and that the decease of only one of them should not enable one of the survivors to control the other two and the trustee, and prevent an exercise of the power. Mr. Sugden (1 Sugd.

Powers, 144) lays down this rule: “As the law now stands, it seems, that where the authority is given to three or more generally, as to ‘my trustees,’ ‘my sons,’ &c., and not by their proper names, the authority will survive whilst the plural number remains.” In 1 Chance, Powers, 242, 243, this position is examined, and the result arrived at is: “Upon the whole, though a court might, in aid of the probable intention, extend the doctrine of Lee v. Vincent [Cro.

Eliz. 26] to the case of a power not preceded by an estate, it would, it is conceived, be unsafe in practice to act upon such a supposition.” The testatrix not only uses language in this particular clause which designates a class, but she omits the word, “said.” In the other parts of her will, she uses the expression, “my said children,” which is strictly equivalent to naming them.

Here she says only, “my children.” A circumstance of no great weight, certainly, but leaving the descriptive words applicable to a class of persons generally, not designated by their names, and coming, therefore, within the rule as laid down by Mr. Sugden. In Hewett v. Hewett, 2 Eden, 332, Lord Chancellor Northington, chiefly upon the ground of the presumed intention of the donor to have a power continue as long as the estate, held that it descended to the heirs of the surviving donee of the power.

Now the presumption in this case, of the intention of the testatrix to have this power to consent continue, is certainly strong, not only for the reason above given, drawn from the expediency of such a power, but because the power itself is unlimited in point of time, and seems to have been intended to be exercised by the trustee, at any period during the existence of the trust; and yet the consent is essential to the exercise of the power.

It would seem also, that when the testatrix created a power to be exer- ■ cised for the interest of her children and their issue, and required the consent of a major part of her children, she would naturally have in her mind, and expect to consent or refuse, only those living when the consent or refusal should become necessary, for no others could act; and that if she had intended to require the consent of a major part of all her children, though some of them should be then dead, she would have so declared in express terms. My conclusion is, in accordance with the rule laid down by Mr.

Sugden, and in aid of the probable intention of the testatrix, that the major part of the children living when the power was to be exercised, were capable of consenting to the execution of the power, and that their advice and consent was sufficient. But, at the same time, it must be admitted, that the question is not free from doubt, and therefore I have felt obliged to look at some other considerations connected with this case. Where the question is, whether a title shall be forced on a purchaser, the court is bound to see that the title is not doubtful.

A title may be doubtful because it depends on a doubtful question of law, not settled by any binding authority, of which different courts may take opposite views, and where those who may hereafter claim an interest in the estate will not be concluded by the decree. A purchaser should not be compelled to take a title which there can be no judicial certainty he can force another to take, under which the court cannot know he can himself hold the land, against parties not before the court, or precluded by its decree. In Wilson v. Bennett, 5 Eng.

Law & Eq. 45, where the objection was that the power of sale was not sufficient, the vice-chancellor held that the point was too doubtful to force the title on the purchaser, and refused the relief; and in. Macdonald v. Walker. 11 Eng. Law & Eq. 324, — where the same objection was made to the title, and the point of law was involved in conflicting decisions, it was held that the uncertainty was fatal to claim for relief. And in Wilson v. Bennett, 13 Eng. Law & Eq. 431, relief was refused on the same ground.

The question whether the children and grandchildren of the testatrix, who are all before the court, can so represent the inheritance, as to enable the court to make a decree, binding on whomsoever may succeed to it, is, therefore, of the first importance in this cause. To determine this question, I must first see what are the estates devised by this will. This does not involve much difficulty. The trustee clearly has the legal estate in fee-simple, not only because it is limited to him in fee by appropriate words, but because the due execution of his trust requires him to have it.

This fee he holds until the decease of the last surviving child of the testatrix, for the purpose of collecting and paying over the rents and profits to those entitled to them; and upon the decease of such last surviving child, he holds the fee, to serve the uses declared in the will, and by force of the statute of uses or of wills, and it is immaterial which, the legal estate vests at once in the then surviving grandchildren, and in the issue of any deceased grandchild, as tenants in common.

The only equitable estates created, are an estate for life in each child of the testatrix, remainder to his or her issue as tenants in common until the decease of the last surviving child of the testatrix. At that point of time, the equitable estates all terminate, and the legal estates vest as above mentioned. To ascertain whether the children and grandchildren are now capable of representing the inheritance, it is necessary to see what each grandchild’s relation to the inheritance now is; and I take the children of Mr. William C.

Gibbs, who is still living, because it is necessary that all should be thus capable. His children, then, if they survive him, will be entitled to the legal estate in fee, if he shall be the last surviving child of the testatrix; if not, they will be entitled to an equitable estate in the rents and profits during the life of such last survivor, and if any of them die before its termination, it goes to their issue, and continues in such issue until they shall take the legal estate. And this equitable estate for lives is now vested in his children, subject to be devested by death before the parent.

There is therefore before the court, William C. Gibbs, who has an equitable estate for life, and from and after his decease, either the rents and profits of the land, or the land itself, will go to his issue; it being contingent, however, as in case of tenancies in tail, whether his children, or grandchildren, or more remote issue will first take. And there are also before the court his children, who are entitled as above mentioned. Lord Redesdale (Giffard v.

Hort, 1 Schoales & L. 408) says: “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 nt> such person, then the tenant for life.” The first two positions are supported by numerous authorities, which it is unnecessary to cite. Calv. Parties. 48, &c. The last, respecting the sufficiency of the tenant for life, is confirmed by Finch v. Finch, 2 Ves. Sr. 492; Gaskell v. Gaskell, 6 Sim. 643; Baring v. Nash. 1 Ves. & B. 551. In Nodine v.

Greenfield, 7 Paige, 544, there was a devise of rents, and profits, and income to the testator’s wife for life, with remainder in fee to the children of his brother who should be living at the time of her death, and to the issue of such of the children as should then have died leaving issue; and the testator empowered his executors, or the survivor of them, to sell the real estate for reinvestment.

It was held, that the -children of the testator’s brother, living at the testator’s death, took vested remainders in fee, subject to open and let in after-born -children, and subject to be devested, by •death before the testator’s widow, and that they were necessary parties to a bill of foreclosure, and that with the tenant for life they could represent the inheritance, though their right of possession was contingent. The case at bar differs from Nodine v. Greenfield in this: that here there is a trustee interposed, who holds the legal estate. But I do not consider this material.

For the grandchildren of the testatrix have the same substantial interest in the land in this case, as the children of the testator’s brother had, in that case. It is true, that in the event of their parents’ death, leaving some child of the testatrix, their interest will, during the life of the surviving child of the testatrix, be equitable only. But I conceive this is unimportant.

A court of equity looks to the substantial interest, and not to the particular mode of enjoyment, for this purpose of representation, and if the party before the court is one, whose interest is of such a nature as to insure his giving a fair trial to the question in contestation, that is sufficient.

If a tenant for life of an estate tail, to whose unborn issue the remainder is limited, can sufficiently represent the inheritance, because it is presumed he will act as well for them as himself, a fortiori can the tenants for life and the grandchildren in this case; for though the contingency may cause the latter to take only an equitable estate for ■a time, and may defeat altogether their possessing rights legal and equitable, yet they will be defeated only in favor of their issue, who must succeed if their parents do not.

I consider, therefore, that the parties now before the court are capable of representing the inheritance, that a decree will preclude all future claims, and consequently that whatever doubt might be raised elsewhere concerning the title is unimportant. The demurrer must be overruled. [NOTE. This cause was again before the court for further directions upon the question whether the purchaser should be compelled to pay interest on the purchase money. The court held that the defendant should be required to pay interest from the expiration of 20 days after the sale. Case No. 13.160.]