
    Richmond.
    Talley & al. v. Starke’s adm'x & als.
    
    1849. October Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. Testator says, Believing that a division of my property at this time, would be ruinous to the general interest of my wife and our children, my will and desire is that all my estate, (after payment of my debts as before provided for,) be kept together until my youngest child comes of age; to be controlled and managed by my executors and my wife, with their best discretion ; so as to make it productive of the greatest amount of profits for the support of my wife and children. Held : That a Court of equity may direct a sale of the real estate if it is for the benefit of the infant children, and those who are of age consent.
    2. In a suit in equity by the guardian of infants for the sale of their real estate, a guardian ad litem for the infants may be appointed at rules. Sess. Acts 1839-40, p. 47.
    3. It is not necessary, in the decree for the sale of the land, to direct that the guardian shall give security under § 20 of the act 1 Rev. Code, ch. 108, p. 409-10.
    
      4. The decree directing the sale to be made upon the premises, the commissioner acts irregularly in making it at a different place; especially after advertising that it would be made on the premises. He should report to the Court that it could not be made .there for want of bidders, and obtain instructions for his future action.
    5. A sale having been thus irregularly made, as the purchasers could not enforce their contracts, if resisted by the parties in the cause, they ought not to be compelled to perfect them if they object.
    6. The Appellate court having set aside the sale of certain parcels of the land at the instance of the purchasers, who were the appellants in the cause, and the ground of the objection to the sale being such as the infant parties may make to all the sales, the Court will set aside the whole decree confirming the sale of all the parcels, though the other purchasers are satisfied with their purchases, and are not parties to the appeal; and will send the cause back, for the Court below to determine whether these last mentioned sales ought to be set aside, or confirmed with the consent of the purchasers, and for the benefit of the infant defendants.
    In January 1834, the will of William Starke was admitted to probat in the County court of Hanover. The second and third clauses of the will contain the following provisions:
    Believing that a division of my property at this time, would be ruinous to the general interest of my beloved wife and our dear children, my will and desire is, that all my estate (after payment of my debts as before provided for,) be kept together until my youngest child comes of age, to be controlled and managed by my executors, and should she remain single, by my beloved wife, with their best discretion, so as to make it productive of the greatest amount of profits for the support of my wife and children, and for the educating and bringing up the latter in the most judicious manner the means applicable to their proficiency will allow.
    When my youngest child attains to the age of twenty-one years, should my wife be living my widow, and consent thereto, it is my will and desire that all my estate be equally divided between herself, Susan L. , Starke, and our children, share and share alike, to them and their heirs forever. And should my wife be then , ., living my widow as before mentioned, and not be wiiling to the division, she is requested to make such equal advancements to our children as the means in her power and their circumstances may warrant; or even at some earlier period, if she, my wife, should think circumstances imperiously call for it. But should my wife have departed this life, or be married, when my youngest child comes of age, then this division is required to be made equally among all our children.
    The testator named two of his sons executors, but they did not qualify as such, and administration with the will annexed was committed to Mrs. Susan L. Starke. She also qualified as guardian of her infant children.
    In September 1843, Mrs. Starke, in her own right, and as administratrix with the will annexed of William Starke, and guardian of her infant children, filed her bill in the Circuit court of Hanover county, in which she set out the provisions of the will. She stated that William Starke left nine children, one of whom had died intestate and unmarried. That four of the surviving children had arrived at the age of twenty-one years; of the others, two were over and two were under fourteen years, for each of whom she was guardian. That they were entitled to no property except what they derived from their father, and that consisted of about four hundred acres of land in the county of Hanover, worth about 2500 dollars, which rented for about 75 dollars a year, and slaves worth about 3100 dollars. That four of the children being of age, she deemed it advisable to make some advancements to them as authorized by the will of William Starke, but that she could not divide the land without materially injuring its value; and that it was essential, looking to the interests of the infant children, that it should be sold. That the income of the estate was barely sufficient to support those members of her family who remained with her, and she could contribute nothing to the adult children. She therefore made all the children of William Starke defendants, and called upon the adult defendants and the infants who were over fourteen years of age to answer the bill, and asked that all the infants should answer by a guardian ad litem. And the prayer of the bill was, that the land might be sold, and the proceeds of sale so vested or applied as might seem best calculated to advance the interest of all the parties, and for general relief. This bill was sworn to by Mrs. Starke.
    
    The adult children and the infants who were over fourteen years of age, filed their answers, in which they admitted the allegations of the bill, and concurred in the prayer for the sale of the land. And a guardian ad litem for the infant defendants was appointed at rules, and filed an answer, in which he admitted the facts stated in the bill, but said whether a sale of the land would or would not promote the interest of the infants, he could not determine.
    The cause came on to be heard on the 10th of October 1843, when the Court held that there was nothing in the will of William Starke, under the existing circumstances, to forbid the sale of the land, and that it appeared from the testimony taken in the cause, a sale would be for the interest of the infant defendants; and therefore, with the consent of the adult parties, decreed that Joseph Starke, who was appointed a commissioner for the purpose, should sell at public auction, the tract of land in the proceedings mentioned, on the premises, for cash, as to the costs of the suit, and the expenses attending the execution of the decree, after giving at least thirty days previous notice of the time, place and terms of sale, by advertisement &c., taking from the purchaser bonds with good security for the credit payments, and retaining the title to the said land as a further security for the said purchase money, and make report how he had executed the decree. And the commissioner was authorized to sell the land in one entire tract, or to divide the same and sell in parcels, if in his opinion, the interest of the parties would be thereby advanced. And to enable him to make such division, he was authorized to engage the services of a surveyor.
    The commissioner made his report to the Court, in which he stated that pursuant to the decree of the 10th of October 1843, he proceeded to advertise and sell at Mrs. Burnetts tavern, in the county of Hanover, on the 30th of December 1843, upon one and two years credit, to carry interest from the date, the said land in four lots, viz: 1st lot, containing 230 acres, including all the buildings, which was purchased by Nathaniel Talley, at 4 dollars 62½ cents per acre; lot No. 2, containing 87¾ acres, was purchased by Allen Melton, at 5 dollars 10 cents per acre ; lot No. 3, containing 40 acres, was purchased by the same, at 4 dollars 55 cents per acre : lot No. 4, containing 100 acres, was purchased by Elisha Gentry, at 5 dollars per acre. All of which said lots have been laid off by John D. G. Brown, a surveyor of the county, and plats furnished, now in the hands of the commissioner for each purchaser.
    After the return of the commissioner’s report, Nathaniel Talley and Allen Melton, two of the purchasers, applied to the Court by petition, to be permitted to come in and to object to the confirmation of the sales to them : and liberty having been given, they objected to the confirmation of the sales made to them on several grounds:
    1st. On the grounds that they were deceived by the representations of the commissioner as to the land which they purchased.
    
      Talley alleged that the commissioner represented the lot which he purchased as containing two hundred acres, of which there were one hundred acres of cleared land, and one hundred acres in woods, whereas there was not in the whole 230 acres which he purchased, more than between fifty and sixty acres of wood land. And he objected that the additional 30 acres had been purchased at a private sale from -the commissioner, who had thus sold it without authority.
    
      Melton alleged that the commissioner expressly undertook to him that the two lots he purchased lay together, and would constitute one lot; and that he would be able to get out to a public road mentioned, on his own land. Whereas the two lots did not adjoin each other, and he could not pass from one to the other without passing over the land of another person.
    2d. Because the Court had no authority to decree the sale of the land.
    3d. Because the proceedings in the cause were not in pursuance of the act of Assembly, which prescribed the mode of proceeding for the sale of the lands of infants.
    4th. Because the guardian of the infants had not executed bond for the safekeeping of the money of their wards.
    5th. Because the land was not sold on the premises as directed by the decree; but at Mrs. Burnett’s tavern, some two and a half miles from the land.
    
    It appeared that the commissioner advertised the land to be sold upon the premises, but that there being but three or four persons present on the day of sale, and all but one of these members of the family, the commissioner adjourned the sale to Mrs. Burnett’s tavern, which was distant between two and three miles, and where there was a hiring of negroes on that day, which attracted a considerable number of persons. He, and those with him, arrived at the tavern about 12 o’clock.
    Although the sale was made in lots, the land had not been previously divided ; but the commissioner attempted to designate the localities and boundaries by pointing them out on a map of the whole tract, which he exhibited; and the testimony shews that he himself was mistaken, in some degree, as to what would be the precise position of the different lots, and that the purchasers, Talley and Melton, were thus misled by him.
    The cause came on again to be heard in April 1848, when the Court overruled the exceptions to the commissioner’s report, and confirmed the same; and directed the commissioner to proceed to collect the purchase money, and deposit the same in one of the banks in Richmond to the credit of this cause, subject to the future order of the Court. And the decree provided that no part of the moneys, thus to be deposited, should be drawn or paid to the guardian of the infant parties until she executed bonds in double the amount to be received by her as such guardian, payable to the Governor and his successors, with such security as the Court should approve, with condition according to law. Talley and Melton applied to this Court for an appeal from this decree, which was allowed.
    
      Lyons and Richardson, for the appellants.
    
      R. G. Scott and Morson, for the appellees.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that by the true construction of the last will and testament of William Starke deceased, the testator intended that, after payment of his debts, his estate, real and personal, should constitute a common fund, for the support and maintenance of his wife, if she should continue his widow, and the support, maintenance, rearing and education of his children, until the youngest child should attain the age of 21 years, and then that the estate should be equally divided between his wife, if she should continue his widow, and his children, provided she should then consent to a division, and if not, that the estate should still remain until such consent, a common fund for the support and maintenance of the wife, if she should continue his widow, and of such of the children as should not have left the family; but a Power and confidence in the wife, that after the youngest child should attain full age, or before, she should, in her discretion, make such advancements as circumstances should require and permit, to such of the children as by marrying, or otherwise settling in life, should quit the family.

And it may be inferred, from the language of the will, that the testator contemplated that the estate would be so kept in kind, as well as in common. But such an expectation, or even the strongest implication of such an intent, could not affect the power of a Court of equity conferred by the statutes, to direct, in the prescribed mode of proceeding, the sale of the real estate of infants, when their interest manifestly requires it. See the statutes on the subject, 1 Rev. Code 409, 410; Supp. Rev. Code 134, 208, 209, 222, 224. The construction of the statutes presents not a question of intent on the part of the. testator, but of authority and discretion on the part of the Court. A testator always contemplates, when he devises real property to infants, that they shall enjoy it in kind, for if he intends that it shall be sold, and the proceeds enjoyed, he so directs by his will. And it was the want of authority to sell under the will, when the testator’s views at the time of executing it, in favour of an enjoyment in kind, should turn out to be delusive, or when there should be a change of circumstances not foreseen or provided for, which prompted the Legislature to impart to Courts of equity, by a general Jaw, that jurisdiction to sell, properly guarded, which they had themselves before habitually exercised. In doing this, the Legislature intended no invasion of the substantial enjoyment by infants in the contemplation of testators when making their wills, but only of the form of enjoyment expressed or implied. The object was to place the Courts in loco parentis, and enable them to prevent the substantial enjoyment from being impaired by the want of authority to change its shape, and give them power to do what would be done by the testator himself, if he could be restored to life, and estimate the exigency of existing circumstances. But it was not the purpose of the Legislature to overrule an imperative prohibition of the testator, applicable to all circumstances that might occur or exist; and, therefore, the power to sell is withheld from the Courts where the will expressly directs that the property shall not be sold. Where there is no such absolute prohibition, the testator must be regarded as having left the matter subject to the general authority conferred by the law.

If this were otherwise, and a direction in a deed or will granting or devising real property to infants, or in trust for them, that the same should be kept together, or rented out, or cultivated, or managed, for their common support or benefit during their minority, should be construed into an express inhibition of the sale of it under all circmstances, the jurisdiction to sell, conferred by our statute law upon the Courts of equity, would be shorn of half its value; and the supposed obligation to keep the property in kind might deprive the infants of the means of subsistence : As for example, in cases of destruction by fire or tempest, of houses, mills or factories that cannot be rebuilt for want of funds, though the ground itself may be sold for a sum that would yield a considerable revenue.

The Court is therefore of opinion, that the Circuit court had lawful authority to cause the real estate, in the proceedings mentioned, to be sold, and the proceeds of the sale to be vested and applied in conformity with the dispositions of the subject directed by the will: And the evidence in the record is satisfactory to shew that a sale thereof, for that purpose, was mainfestly required by the interests of the infant defendants.

As to the proceedings in the cause, prior to the sale, the Court is of opinion that there was no irregularity. The first guardian ad litem was appointed at rules, under the authority of the act of March 31st, 1840, Sess. Acts 1839-40, p. 47, which embraces all cases without exception. And there was no necessity or propriety for a provision in the decree for sale, as a condition thereof, that security should be given, under the 20th section of the statute, 1 Rev. Code 410, for the application of the proceeds; inasmuch as the sale was to be on credit payments to be secured by the purchaser, and the persons into whose hands they would thereafter come had not been then ascertained.

And the Court is further of opinion, that the decree for sale having directed it to be made on the premises, the commissioner, especially after advertising that it would be made there, acted irregularly in making it at a different place, instead of reporting to the Court that it could not be had there for want of bidders, and obtaining instructions as to his future action : And, inasmuch as the purchasers could not have enforced their contracts, if resisted by the parties in the cause, they ought not to be compelled to perfect them. The commissioner, moreover, acted indiscreetly, though not fraudulently, in his manner of conducting the sale. The decree having authorized him to sell the land in one entire tract, or to divide the same and sell it in parcels, with authority to engage the services of a surveyor to enable him to make such, division, and having determined to sell in parcels, he ought to have caused them to be laid off, by survey, prior to the sale : instead of attempting to describe them orally and by reference to a general plat, at the time of the sale; in which description he fell into errors, the consequence of which was, as appears from the evidence, that the appellants, Talley and Melton, were misled to their prejudice in regard to the quantities and advantages of the lots sold to them, and executed their bonds for the purchase money without correct information on that subject.

The appellants, Talley and Melton, ought, therefore, to be relieved from their said purchases. As to Gentry, the purchaser of the other lot, he seems to be content with his purchase, and is not a party to this appeal. But the effect of confirming the sale as to him only may be prejudicial to a resale of the rest of the tract; and the infant defendants being substantially parties to the appeal, and represented as to their interests as well by their guardian as their guardian ad litem, have a right to object to the whole sale, because not made on the premises as directed by the decree. In a proceeding, therefore, like the present, authorized only for the benefit of the infants, they ought not to be prejudiced by what was designed to be a complete sale of their interests, in consequence of the cutting up of the tract into parcels for that purpose: And the Court is of opinion, that the whole decree of confirmation ought to be reversed, and the cause sent back for further proceedings, in which the Court below will determine whether the sale to Gentry ought to be set aside, or confirmed with his consent and for the benefit of the infant defendants. And the Court below will also have to determine to what extent, if any, a resale should yet be made ; inasmuch as some of the infant defendants will have attained full age since the former sale, and may be unwilling that their interests should still be sold; and it may appear that a sale of the interests only of those continuing infants may be injurious to them; and the devisees who were adults at the time of their consenting to the former sale, may be unwilling that a resale of their interests should be made under the altered circumstances of the case.

It is therefore ordered and decreed, that the decree of the Circuit court be reversed and annulled, with costs to the appellants, against the appellee Susan L. Starke. And the cause is remanded to the Circuit court, to be proceeded in according to the principles above declared.  