
    PROVIDENCE COUNTY.
    Petition of Daniel Lyman et al. for leave to sell trust property.
    In a petition in equity brought under Gen. Stat. E. I. cap. 167, § 7, for the sale of a trust estate:—
    
      Held, that all living persons who by any contingency might be entitled to the estate must be made parties, and that following the analogy of Gen. Stat. E. I. cap. 219, § 19, regulating partition by equity process and at law, the interest of persons not in being may be effectually represented by a person appointed by the court for this purpose.
    Petition in equity under Gen. Stat. R. I. cap. 167, § 7, for the sale of trust property.
    The following opinion was given by the court on the question who should be made parties to the proceeding.
    
      June 26, 1875.
   Potteb, J.

This is a petition in equity under our statute, empowering this court to authorize a sale of trust estates for the purpose of changing the investment; and the question is who should be made parties in the proceeding.

Elisha Dyer by his will, proved March 21, 1854, devised certain real estate to trustees for the benefit of his daughter Caroline Lyman for life, and on her decease to transfer it to such one or more of her children or grandchildren as she should by will appoint, and if she dies without leaving any such will, then to convey it to those who should be her heirs at law by the statute of descents.

Mrs. Lyman is living, and if she should die now without a will, her son Daniel, if living, would take the whole property; if he should not survive her and leave no child or children, then her brother Elisha and sister Frances J. Vinton would, if living, take it; and if either of them were dead leaving children, those children would succeed. So that there are several contingencies on Mrs. Lyman’s death.

The authorities on this point are few. Sales in suits for partition are of recent introduction in England and in this country; and sales of trust property were not formerly frequent, and when made were often made under special legislative acts. In the case of Hopkins v. Hopkins, 1 Atk. 581, 590, Lord Hardwicke says it was an established rule that in case of a trust, no matter how many contingent limitations there might be, the trustees and the first person in estate were the only necessary parties: the freehold was in the trustees. But in that case the controversy seems to have been as to who (if any one) was entitled to the first beneficiary interest; the heir at law claiming it. See also 2 Daniel Ch. Pr. 3d Amer. ed. 1600; Cholmondeley v. Clinton, 2 Jac. & W. 2, 5, 133, which was a question of construction of settlement in a trust deed ; Same Case, affirmed 4 Bligh, 1; Lloyd v. Johns, 9 Ves. 37, 52, 55, 57, 63 (where Lord Eldon refers by way of analogy to the case of a common recovery); Clagget v. Hall, 9 Gill & J. 80 ; Gifford v. Hort, 1 Sch. & Lef. 386, 396, 407, 410; where Lord Redesdale says he cannot find that the point has anj'where been ever fully discussed, and remarks on the frauds which have been committed upon persons entitled under settlements, by connivance with the tenant for life. It was said in argument (392), that at law a judgment against tenant in tail does not bind the remainder-man (Ferrar*8 case, 6 Rep. 8 a), and that a common recovery binds only from the policy of the law and from the supposed recompense made.

We can easily understand why in partition and many other cases a court might hold a share to be well represented by the first tenant in tail or person holding the first estate; while the same reasons would not apply where the object was a sale of the property or a total change of its nature.

On the other hand, in Goodess v. Williams, a. d. 1843, 2 Y. & C. C. C. 595 (Eng. Ch. Reports, vol. 21), which was a bill to subject trust land to sale for debts, the trust was for the wife and children, and if they died, &c., &c., then to the testator’s three sisters and their children, the wife and her children only being made parties; it was held that the inheritance was not represented. See also Att'y Gen. v. Goddard, 1 Turn. & R. 348; Anon. Case 936, 12 Mod. 560; Sherrit v. Birch, 3 Bro. C. C. *228; Hunt et al. v. Booth at als. 1 Freeman (Miss.), 215, where property was limited to infants in remainder, and citing Herring v. Yoe, 1 Atk. 290, where property was limited to husband for life, then to the wife for life with remainders. Stephen v. Terrel, 3 T. B. Mon. 131; Osborne v. Usher, 2 Bro. P. C. 314; Wingfield v. Whaley, 2 Bro. P. C. 447; Story’s Eq. Pleading (Redfield’s ed.), §§ 144, 147 ; Smith’s ed. of Mitford, *173; Collins v. Lofftus, 10 Leigh, 5, holding that in equity the cestui que trust is not generally bound by a decree against the trustee. And see comments in Smith’s Chancery Practice, 94, on No. 30 of Lord Cottenham’s Equity Rules of 1841, which is the same as our Equity Rule No. 25 as to suits against trustees.

In many of the states (and also in this) sales of trust property, where minors and persons not in esse might be interested, have been authorized by special acts, which have prescribed the mode of sale and reinvestment; and these sales have been sustained by the courts. Sohier v. Mass. Gen. Hospital, 3 Cush. 483 ; Clark v. Hayes, 9 Gray, 426; Williamson v. Berry, 8 How. U. S. 495, 537; Legget v. Hunter, 19 N. Y. 446, where all the judges concurred ; and see the cases there cited.

But the question now is, whether, in a proceeding to direct a sale not under any special legislation but under the general power of the court, we can make a decree which will bind the contingent interests not represented.

We have been referred to the case of Clarke v. Cordis, 4 Allen, 466, 470, 475. The proceeding there was under an act authorizing trustees, &c., under direction of the court, to compromise or arbitrate claims, and providing that the decision should bind all future contingent interests, and that the court might appoint a person to represent such future contingent interests. Their statute provides that the trustees, &c., “ with all other parties in being, claiming an interest, shall be parties.” The decision is to bind future contingent interests, “ as well as the interests of the parties in being.” From this it might be argued that the contingent interests spoken of were such as might afterwards come to persons not then in being, and that all persons then in being must be parties. It appears (p. 470) that there were persons in being having contingent interests who were not parties. Yet the court held that they need not be parties.

Our statute has made no provision as to parties, but has left the matter to be decided on general principles. But in our statute regulating partition and sale of land in suits for partition, the legislature has provided that the partition or sale shall bind all interests for life, in reversion, or remainder, vested or contingent, whether to persons in being and ascertained or not in being and to be ascertained, &c., &c., “ Provided that all persons in being at tbe time of tbe commencement of tbe suit for partition, interested in tbe estate, be made parties to tbe proceedings, and tbeir title or interest fully shown upon the record by tbe pleadings ; and provided, also, that, before final judgment or decree for partition or sale in any sucb case, tbe court shall appoint some discreet person to represent tbe interests of persons, if any, not then in being.” Gen. Stat. R. I. cap. 219, § 19.

James M. Ripley, for petitioners.

While we do not wish to undertake to lay down any positive rule for all cases, we think it is safe to follow tbe rule here laid down. Tbe cases are analogous. Tbe object in both is to sell property in which there are contingent interests. What would be a sufficient protection to such interests in case of a sale for partition, may well be held to be sufficient in case of a sale of trust property. And as it has been held that in cases of partition or sale, tbe fact, that parties not in esse may be entitled, cannot be an objection to a decree (see 2 Hoffman’s Cb. Prac. 161, and cases cited), we think that here sucb interests may well be represented by a person appointed for that purpose ; but that all living persons, who might by any contingency be entitled, must be made parties. Order accordingly.

Matteson, J., did not sit with the court when the above case was heard.

Simon S. Lapham, for petitioner.

Edwin Aldrich, contra.  