In re Dodd, 62 N.C. 97, 1 Phil. Eq. 97 (1867)

Jan. 1867 · Supreme Court of North Carolina
62 N.C. 97, 1 Phil. Eq. 97

In the matter of ORREN L. DODD and others.

Where any members of a class, to which an executory devise is limited, arc 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,

(Troy v. Troy, Bus. Eq., 85, Watson v. Watson, 8 Jon. Eq., 400, and Houston v. Houston, ante, p. 95, cited and approved.)

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,” &c. The petitioners, besides Orren, were his children, whp were under *98age. It was stated that Dr. Warren Dodd was about fifty years of age, and had rrever 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.

The petition was filed to Fall Term, 1866, of the Court of Equity for Johnston, and upon a report of the Master and affidavits, set for hearing and transmitted to this court.

B. F. Moore, for the petition.

The powers of Courts of Equity in North Carolina are just such as those of the Court of Chancery in England.— Latham v. Wiswall, 2 Ire. Eq., 299; Harrison v. Richardson, 4 Dev., 279; Hawks’ Hist, of N. C., 2d vol.

1. The Charter of Charles II. expressly conferred the power to create Courts of Equity as well as of Law. Prior to the revolution chancery jurisdiction was exercised by the Governor and Council, whether from special enactment, or from established usage, cannot now be told. After the revolution there were no Courts of Equity until the act of April, 1782. The court law of April, 1777, was, as its title expresses, an act for establishing courts of law, and the preamble to the act of 1782 shows that before that time there was no equity jurisdiction within the State. It seems that the chancery jurisdiction of the Colonial Governors, in council, had been abrogated by that provision of the Constitution-which declared, “ that the legislative, executive and supreme judicial powers of government ought to be forever separate and distinct.” The act of 1782 conferred upon the Judges of the Superior Courts “ all the powers and authorities that the Court of Chancery, held under the late government, used and exercised,” &c.

2. If the Colonial Chancery Courts had the powers of English Courts of Chancery, the State Courts of Equity *99Slave no less. Expressions of legislative doubts upon this point cannot affect this question.

3. Supposing, then, that the English Courts of Chancery had, independent of statute, the power to convert land into personalty with the character still of realty in a case like the present, then clearly this court has the same. Harris v. Pichardson, 4 Dev.,' 282.

Those English courts have the general care and superin-tendance of infants and of their property. 2 Story Eq. Jur., .ss, 1327-1335. They may change that property from real to personal; and may reconvert it. Eonb., c. 2, s. 5, p. 88, -and notes; Norwood y. Twyne, Amb., 417, 2 Eden, 148, 2 Story, s. 1357; McPherson on Inf., 278, &c.; Field v. Schiefflin, 7 Johns, ch. 154, ex parte Phillips, 19 Yes., 118, and .note; Lord Ashburton v. Lady Ashburton, 6 Yes., 6, and note; Watson v. Watson, 3 Jon. Eq., 400; Huger v. Huger, .3 Dess., ch. 21; Stapleton v. Vanclerboish, 3 Dess., ch. 22.

Unborn infants are objects of the care of chancery. McPherson, 154, &c.

Suppose a case of a life estate with many remote limita-tions, shall these contingent, improbable estates stand in ■the way of the interests of the persons for whom the bounty -was primarily intended ?

Bíttle, J.

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, cannot be questioned since the ■passage of the act of 1827, c. 33. (See Rev. Code, c. 54, s. 32.) The cases of Troy v. Troy, Bus. Eq., 85, Watson v. Watson, 3 Jon. Eq., 400, and Houston v. Houston, ante, p. 95, are *100instances 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 cannot 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 genei’al 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 bjr 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.