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"I give and bequeath to my son, Francis M. Walters, during his natural life, and after his death to his children surviving him in fee simple," certain described lands.

In that case, two children had been born to Francis M. Walters, both of whom were living at the death of the testator. Appellee in that case was one of such children. The other child died in the lifetime of the life tenant, leaving the appellant, her son, surviv

Under such circumstances, the Supreme Court, after a comprehensive review and analysis of the decided cases, announced its decision, the holding being indicated by the following quoted from the opinion:

"We are of the opinion that on the death of question vested absolutely in appellee and appelLuke Walters the fee-simple title to the land in lant's mother, subject to diminution to let in after-born children, and consequently the court erred in concluding that appellee is the sole owner of the land.”

were but two children born to testator, each the language used here, in creating estates in of whom survived him, and are yet living, testator's sons and their children. The lannamely, appellee Alexis and appellant Joseph guage used there is as follows: A. Coquillard. The possibility of other children being born to him is removed by his death. It results that the clause in the second item of the will, reading as follows, "and such other children as I may have born to me," may be eliminated in determining what quantity of estate was devised to the two sons by said second item. It is apparent that by such item there is created in the widow an estate in all the lands involved for the period of her natural life, and that, sub-ing her. ject to such life estate in the widow, there is created in each son an estate in the undivided one-half of such lands for the period of his natural life. As long as both sons are living, they, as life tenants, are tenants in common in all such lands, subject to the mother's interest as prior life tenant. The literal equivalent of the remaining portion of such item in its relation to either son may be expressed as follows: "On the death of such son, then I give the remainder of his share in such lands in fee simple to such children as he may leave surviving him." The estate created in each son being but a life estate, as we have indicated, strictly speaking, there could be no remainder of his share after his death. It is evident, however, from the language used, that the testator thereby intended to limit on such life estate a remainder over in fee simple to the children of such son. No child has been born to either of testator's sons. We have then a situation wherein a remainder in fee is limited to a person or persons not ascertained, because not in being. The case is thus brought within the fourth class of contingent remainders, as defined by Fearne, thus: "When a remainder is limited to a person not ascertained or not in being at the time when such limitation is made." Fearne, Con. Rem. 9; 24 Am. & Eng. Encyc. of Law, 397.

In Butler's notes to Fearne on Rem., at section 187, the author gives as an example of a contingent remainder of such class the case where a remainder is limited to the first son of B., who has no son then born. Said item of the will here then creates in the child or children of each of the sons of testator a contingent remainder in fee in the undivided one-half of the lands involved. Such remainder has not as yet vested, for the sufficient reason that no such child has been born. We are required to determine the contingency on which such remainders will vest, whether, in the case of either son, the birth of a child or children to him within his lifetime is sufficient to that end, as to the undivided one-half of the lands involved, or whether such remainder will so vest only on the decease of said son leaving a child or children surviving him.

The third item of the will of Luke Walters, involved in Alsman v. Walters, 106 N. E. 879,

The decision there is to the effect that on

the decease of the testator the remainder in fee simple, subject to the life estate created in Francis M. Walters, vested in the children of the latter then in being; other children having been born to the life tenant Francis M. Walters, that the estate theretofore vested in fee, as aforesaid, opened up to receive such other children at birth as owners in fee on an equality with the children living at the death of the testator; one of such children having died intestate, prior to the termination of the life estate, that his interest descended to his heirs. See, also, Amos v. Amos, 117 Ind. 19, 24, 19 N. E. 539, and McIlhinny v. McIlhinny, 137 Ind. 411, 37 N. E. 147, 24 L. R. A. 489, 45 Am. St. Rep. 186. In the case last cited, the following language is used at page 418 of 137 Ind., at page 149 of 37 N. E., 24 L. R. A. 147, 45 Am. St. Rep. 186:

"Accordingly, it has been held by this court, and so ruled at common law, that a valid remainder might be limited on a particular life estate, to unborn children, and, on their birth during the life tenancy, the remainder would immediately vest. The remainder is contingent before and vested after the birth of the remaindermen."

Its results, under authority of Alsman v. Walters, supra, and we so hold, that while in the case at bar the estate limited to the unborn children of either son of the testator by item 2 of said will is and remains a contingent remainder in fee, such estate will vest as a remainder in fee on the birth of a child to such son, subject to be opened up to let in other children of such son after wards born alive.

[2-7] It thus appears that, by virtue of item 2 of the will, there are carved from the estate in fee owned by testator at the time of his decease, in the lands involved, estates

life estate in the widow as indicated; (2) a life estate in each son, subject to the life estate in the widow, also as indicated; (3) a contingent remainder in fee in the unborn child or children of each son. It is apparent, also, that the entire quantity of estate owned by testator in such lands is not exhausted by the estates carved therefrom by such item 2. There is left a remnant limited on the successive life estates, and limited by such contingent remainders in fee created in a child or children of the respective sons. That is, directing our attention to an undivided onehalf of such lands, in order that we may make ourselves clear, such undivided half is devised to the widow for life, remainder over for life to either son as the case may be, and a contingent remainder in fee to the unborn child or children of such son. The remnant in such behalf is a vested estate therein limited on the successive life estates and limited by such contingent remainder in fee. The contingent event is of a nature such as that it may or may not occur. The course of time, however, will disclose that it has occurred, or that it cannot occur. A child or children may be born to such son, or his decease will render such event impossible. The happening of the contingency will terminate the estate which we have designated as a remnant. The disclosure that such contingent event cannot occur will ripen such remnant into a remainder in fee. The same line of reasoning leading to a like conclusion applies, of course, to the other half of the estate under consideration. It thus appears that the estate which is undisposed of by item 2 of the will is one class of what is denominated a base, determinable, or qualified fee. 16 Cyc. 602; 10 R. C. L. 652; First Universalist Society v. Boland, 15 L. R. A. 231, note; Tiedeman's Real Prop. §§ 36 and 211. Such an estate is an estate in fee for the reason that it may continue forever. It is an estate of inheritance descendible to heirs and may be assigned or devised. Id.; and Aldred v. Sylvester, 111 N. E. 914; Mendenhall v. First New Church, 177 Ind. 336, 98 N. E. 57. Such determinable fee, not being devised by the second item of the will, passed into the residue of the estate, and by the seventeenth item, which is a residuary clause, was devised to the widow and the two sons as tenants in common in equal thirds. Page on Wills, § 507; Barker v. Town of Petersburg, 41 Ind. App. 447, 82 N. E. 996. It follows that the first conclusion of law is correctly stated. The second should be more definite, to the effect that Alexis Coquillard is the owner of an estate in the undivided half of said lands, for and during the period of his natural life, limited however on the preceding life estate in Maude M. Coquillard; and that Joseph Coquillard is the owner of a like estate in the other undivided one-half of such lands. The third and fourth conclusions should be restated, to the effect that in one undivided half of such lands Maude M. Coquillard,

Alexis Coquillard, and Joseph Coquillard are the owners as tenants in common in equal thirds of a vested remainder in fee, limited on the successive life estates of Maude M. Coquillard and Alexis Coquillard therein, and limited by the contingency of a birth of a child born alive to Alexis Coquillard; that on the birth of such a child said remainder in fee will determine, and thereupon a remainder in fee limited on such life estates will vest in such child, subject to open up as aforesaid; that on the decease of Alexis Coquillard, no child having been born alive to him, said remainder in fee in the undivided one-half of said lands will thereupon become absolute in the heirs of Alexis Coquillard and in Maude M. Coquillard, and Joseph Coquillard, if living, otherwise in their respective heirs. The conclusions should be to the same effect respecting the other one-half of such lands, involving the contingency of the birth of a child or children to Joseph Coquillard, rather than to Alexis Coquillard, however.

[8-11] Preliminary to a consideration of the fifth and sixth conclusions, we are required to determine whether, under the special circumstances of this case, appellees are entitled to maintain this action. Appellee Maude M. Coquillard, as life tenant, is entitled to the sole and exclusive possession of the lands involved during the period of her natural life. Appellee Alexis is the owner of a life estate in remainder in the undivided one half of such lands; appellant is the owner of an estate of like quantity, in the other half of the lands. Such estates being subject to the widow's life estate, neither son has any possessory right in the lands within the period of her natural life. By reason of the intervening life estates, the right to present possession is not annexed as an incident to the base or determinable fee of which the parties to this proceeding are tenants in common, by virtue of item 17 of the will as aforesaid. Where lands are owned and held in cotenancy, with the right of immediate possession as an incident to the estate so owned, each tenant owner is entitled to the possession of the lands, not exclusively, but in conjunction with his cotenants. Such a condition sometimes leads to serious disagreements and affords to an unscrupulous tenant an opportunity to annoy and take advantage of his cotenants, whereby their beneficial interests in the lands may be greatly prejudiced. The possibilities of such a situation and the actual experiences of cotenants thereunder gave rise at common law to the remedy by enforced partition, later extended by English statutes and in equity, whereby a cotenant may obtain relief from such a condition, in that his lands may be set off to him in severalty. 30 Cyc. 169; Freeman on Cotenancy & Partition, § 420 et seq. Except in a case of a joint or common possession or a joint or common right to immediate possession, the reasons that gave birth to such rem

edy do not exist. The remedy existing, how- | gard this action as a proceeding for partiever, is not confined to those cases wherein tion. As indicated, certain very essential there is actual friction or disagreement be- elements of that sort of action are lacking. tween cotenants respecting possession. But The characterizing facts here are nonessenexcept as modified by statute in certain ju- tial in a proceeding for partition. Partition risdictions, the rule seems to be universal resulting in the division of the lands, if the that, in order that a person may maintain court were authorized to award it, would be partition, it must appear that title with pos- ineffectual as a remedy. The embarrasssession or the right to immediate possession ments of the situation would still exist. If as a cotenant rests in him. The act of 1909 partition were effectual, it would be because (Acts 1909, p. 339; section 1243a, Burns 1914) the lands were ordered sold as indivisible. has in some respects modified the ancient The parties in interest here may be awarded rule in this state, but not as applied to the those considerations to which they seem to facts in the case at bar. Under that act, be entitled, and all rights protected only by where an estate has been created in the whole a sale of the lands, and a reinvestment of of certain lands in one person for the period the proceeds. The characterizing facts apof his natural life, with remainder in fee to peal to the court to that end, rather than others, and where by conveyance or other- that the lands be partitioned. Where an anwise the life tenant acquires the fee to an un-swer is filed, the court may grant any relief divided portion of such lands, such life ten- consistent with the case made by the comant, although entitled to the possession of plaint and embraced within the issue. Secthe whole of. such lands, or the owner or owners of the unconveyed portion of such remainder in fee, although not entitled to the possession of any part of such lands, may maintain partition; or, where one of such remaindermen acquires such life estate of an undivided interest therein, either he or such other remaindermen, although the latter is not entitled to possession, may maintain partition. See Smith v. Andrew, 50 Ind. App. 602, 98 N. E. 734. To the extent indicated, such statute modifies or extends the common-law rule, but it is not applicable to the

facts of this case. It follows from what has

been said that Maude M. Coquillard, as life tenant, cannot maintain partition as she holds her life estate as sole owner rather than as cotenant. 30 Cyc. 178. As she has not surrendered or conveyed her life estate or any part thereof to the subsequent life tenants, Alexis, as one of the latter, is not entitled to partition, as no possessory right is annexed to his estate. See Eberle v. Gaier, 105 N. E. 282; Bice v. Nixon, 34 W. Va. 107, 11 S. E. 1004; Brillhart v. Mish, 99 Md. 447, 58 Atl. 28. For reasons already indicated, neither Maude M. Coquillard nor Alexis Coquillard, as a tenant in such qualified fee, can enforce partition. It follows that, if this action should be considered merely as a proceeding for the partition of lands, it cannot be maintained. See Fry v. Hare, 166 Ind. 415, 77 N. E. 803; Tower v. Tower, 141 Ind. 223, 40 N. E. 747; Hawkins v. McDougal, 125 Ind. 597, 25 N. E. 807; Shaw v. Beers, 84 Ind. 528; Freeman, Cotenancy & Part. (2d Ed.) §§ 440 and 446; Weston v. Stoddard, 20 L. R. A. 624, note; note to Brown v. Brown, 28 L. R. A. (N. S.) 125. The rule is the same where partition is a matter of equitable cognizance as only those in possession or entitled to possession may file the bill in such jurisdiction. Pom. Eq. Juris. (2d Ed.) § 1387, note 1; Freeman, Cotenancy & Part. § 440; 2 White & Tudor's Leading Cases in Equity, note to Agar v. Fairfax, p. 894.

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tion 394, Burns 1914; Humphrey v. Thorn, 63 Ind. 296. Considering, then, the facts that individualize the action, we regard this as a proceeding to convert the lands into a fund and for the investment of the fund. The nature of the action being so regarded, three questions are presented for our consideration: First, in such a general situation as is presented here, whether the trial court in the exercise of its chancery jurisdiction is clothed with power to direct the sale of the lands; second, whether under the specific facts, such power, if it exists, was properly exercised; and, third, whether the court's decree, if otherwise properly entered, is binding on the contingent owners who may hereafter

be born.

We proceed to consider these questions. The testator The situation is as follows: evidently contemplated that this real estate should be a source of income to the widow during her life, and thereafter to the sons during their respective lives, and that the corpus of the estate should be preserved to the unborn children of the latter. Although he did not specifically so direct, it was probably his intent that the land should be preserved as land until it eventually vested by Under the absolute title under the will. facts, and by reason of changed conditions which the testator probably did not foresee, his purpose is being frustrated, and is likely to be completely defeated unless the arm of a court exercising chancery powers may be interposed to the end that the lands may be sold and the various estates and interests therein transferred to the fund. Such changed conditions and the specific facts are to the following effect: At the decease of the testator, the real estate involved was situate near the city of South Bend. It was then regarded as farm land, and was liable to charges only as such. The city, however, has rapidly increased in territorial extent, population, and industrial importance. The

"Can it be said that the beneficiary of an estate which would bring in the market $100,000 sent to the poorhouse for support, or that the should perish in the street from want, or be estate should be totally lost, because there is no power in the courts to relieve against the provisions of the instrument creating this trust? Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had be anticipated the emergency."

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A like conclusion was reached in Hale v.

city. Although yielding but small income, | tion similar in effect to those presented here, they have become subject to heavy charges the court, in holding that chancery is clothed for taxes, public improvement assessments, with power to grant relief by a sale, uses and the like. As a consequence, the expense this language at page 230 of 29 Ill.: of maintaining the land greatly exceeds the income. As contemplated by the testator, these lands should be a source of income to the widow, and later, in the natural course of events, to the sons. The expenses, however, swallow up the income. Sums in addition must be paid to preserve the body of the estate. Unless the court may intervene, the lands cannot be conveyed by good title until after the decease of the sons. Their life expectancies at the commencement of this action in 1914, as estimated by standard tables of mortality, were approximately 33 and 34 years, respectively. If the owners of limited estates in the lands were disposed to continue to discharge all liens and expenses until the lands may be conveyed, it would seem to be unreasonable to require or expect them to do so. The estimated value of the land as found by the court, if invested at the legal rate, would yield an income of more than double the value of the lands within the period of such expectancies. Under the circumstances, it would seem that the best interests of all concerned require that the lands be transformed into a fund. The in-persons interested a considerable income. The terests of the widow and sons so require in order that they may receive the income in succession as intended by the testator. The interests of the unborn contingent owners so require in order that the body of the estate, although converted into personalty, may be preserved for them.

[13] It cannot be doubted that the power is lodged in chancery in a proper case, where all persons interested and likely to be affected by the decree are before the court, to convert realty into personalty, and to direct and supervise reinvestment. Thus, Ridley V. Halliday, 106 Tenn. 607, 61 S. W. 1025, 53 L. R. A. 477, 82 Am. St. Rep. 902, involved lands held under a grant for the use of a life tenant with remainders over to successive classes, some of whom were not in being. It was made to appear there that the interests of all concerned plainly required the sale of the lands and the reinvestment of the proceeds. In approving a decree to that end, the court of Chancery Appeals of Tennessee held that, under the circumstances presented, a court of chancery has inherent power to order a sale, the interested persons in esse being before the court, and that a decree so entered is binding on contingent owners not in being. The facts there were very similar to those here, differing principally in that the lands there had been conveyed and were held in trust for the life tenant and remaindermen.

Hale, 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247, wherein the court affirmed a decree directing the sale of lands thereby affecting the titles of certain infants and the contingent interests of unborn persons. It was made to appear there that the lands were unproductive and proximity to Chicago, but that they might subject to heavy charges by reason of their proximity to Chicago, but that they might be sold for a substantial sum, which upon being invested or loaned would yield to the

where it is for the benefit of infants, courts decision is justified on the ground that, of equity have the power, by virtue of their general jurisdiction over the estates of minors and others under disabilities, to authorize a conversion of real estate into personalty and of personalty into realty.

Each of the cases above cited and discussed involved an estate held in trust for the use of life tenants and contingent remaindermen, including persons not in being. While the fact that an express trust is involved may clothe a court of chancery with jurisdiction to direct its administration in order that its subject-matter may be preserved and its beneficiaries protected in their rights. yet some other equitable consideration must exist in order that the court may properly exercise its power, by directing the conversion of trust property into some other form where such conversion is not specifically authorized by the instrument of trust. In each of such cases, such other consideration consisted in that it was made to appear that the trust property was likely to be lost or that it was subject to great depreciation unless such conversion was directed, and consummated. A like consideration exists here, and we do not believe that the mere fact that no express trust is involved stands as a bulwark against action by the court. To this effect is Gavin v. Curtin, 171 Ill. 640, 49 N. E. 523, 40 L. R. A. 776, where no express trust was involved. The lands there were In Curtiss v. Brown, 29 Ill. 201, likewise the held under a devise to testator's daughter lands involved were held in trust for the use for life, with contingent interests over to of a life tenant with contingent interests others, including persons not in being. A deover to unascertained persons. In a situa- cree directing the sale, on a showing that

the lands were comparatively unproductive, 136 N. Y. 10, 32 N. E. 704, 18 L. R. A. 631, and that the charges and expenses very much exceeded the income, was approved; the court saying in substance that, independent of the existence of a trust, a court of equity has jurisdiction to intervene where it is made to appear that otherwise a substantial right would be lost, and that, in the presence of some exigency which makes the action of the court practically indispensable, it properly exercises its power.

To the same effect is Baldrige v. Coffey, 184 Ill. 73, 56 N. E. 411, following and approving Gavin v. Curtin, supra. See, also, Ruggles v. Tyson, 104 Wis. 500, 79 N. W. 766, 81 N. W. 367, 48 L. R. A. 809; Clyburn v. Reynolds, 31 S. C. 91, 9 S. E. 973; Springs v. Scott, 132 N. C. 548, 44 S. E. 116; Mayall v. Mayall, 63 Minn. 516, 65 N. W. 942; Bennett v. Nashville Trust Co., 127 Tenn. 126, 153 S. W. 840, 46 L. R. A. (N. S.) 43, Ann. Cas. 1914A, 1045.

32 Am. St. Rep. 693; Dunham v. Doremus, 55 N. J. Eq. 511, 37 Atl. 62; Story's Pleading, §§ 145 and 146; Freeman, Cotenancy & Part. (2d Ed.) § 482; Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec. 455; Rutledge v. Fishburne, 97 Am. St. Rep. 799, note; Cheesman v. Thorne, 1 Edw. Ch. (N. Y.) 629; Fox v. Fee, 24 App. Div. 314, 49 N. Y. Supp. 292; Carter v. White, 101 Am. St. Rep. 870, note; Coquillard v. Coquillard, supra.

We cannot, however, approve the sixth conclusion. It contemplates the depletion of the fund by paying to the parties to this proceeding the estimated value of their respective life interests. On the investment of the fund, Maude M. Coquillard would be entitled to the net income therefrom during life. Thereafter, each son would be entitled to the net income from one-half of the fund during the remaining period of his life. The court probably concluded that the payment to each Respecting the first two questions suggest- life tenant of the estimated value of his ined as presented for consideration, we con- terest in the fund would accomplish the legal clude that the trial court in the exercise of equivalent of payment to him of income as its chancery powers is clothed with jurisdic-indicated, and therefore that the payment of tion to direct the sale and conversion of such legal equivalent is justified. If this lands in fee held by a life tenant with con- were true, it will be observed that there is ditional estates over to unascertained per- no provision for the restitution of the fund sons, where emergencies arise rendering ac- by the accumulation of interest on the resition by the court imperative in order that due. In addition, the conclusion is to the the persons interested may be protected in effect that such residue should be divided intheir legal rights, and the body of the es- to three equal parts, but there is no specifitate preserved for them, and that while such cation as to the disposition of the parts. extraordinary powers should be used with Presumably the court contemplated the paycaution, in the case at bar, the court proper- ment thereof to the parties to this proceeding ly exercised such powers to the end indi- as owners of such qualified fee. The stipulacated. tion for the protection of the contingent remaindermen is indefinite. The decree entered on the conclusions contains no provision for their protection. On the subject of the distribution of the fund, it is simply to the effect that the costs and expenses be paid, and that the residue of the fund be distributed to the parties to the proceedings in proportion to their several interests.

[14] Directing our attention more particularly to the third question above suggested, all persons interested in the subject-matter of this proceeding, and who are in being are before the court: The life tenants and owners of such qualified fee, which as we have said is an estate of inheritance, are parties. The owners of the contingent interests cannot be made parties as they are not in being. A proceeding such as this is maintainable If in being, they would be necessary parties. only on the theory that, by reason of some The persons before the court are interested in exigency growing out of changed conditions, urging upon the attention of the court every it becomes necessary to convert lands into consideration that such unborn persons personalty in order that the body of the would be interested in presenting if in be- estate may be preserved. The courts are in ing and parties to the proceeding. Under accord that in order to the validity of the such circumstances, and where the exigencies proceedings the funds must be substituted for of the situation require action on the part the lands, all interests and estates in the latof courts, impelled by practical necessity, ter transferred to the former, and that the they assume jurisdiction. Decrees entered fund must be ordered administered as nearunder such circumstances are binding on per-ly as possible as the lands would have been sons not in being. We conclude that a proper decree entered in this proceeding is binding on the unborn children of testator's sons, and that the fifth conclusion of law is cor

In addition to authorities above cited, see the following: Bofil v. Fisher, 3 Rich. Eq. 1, 55 Am. Dec. 627; Downey v. Seib, 8 L. R. A. (N. S.) 49. Note: Powell v. Wright,

handled had there been no conversion. Noble v. Cromwell, 26 Barb. (N. Y.) 475; Gavin v. Curtin, supra; Mead v. Mitchell, supra; Cheesman v. Thorne, supra; Bofil v. Fisher, supra; Monarque v. Monarque, 80 N. Y. 326; Barnes v. Luther, 77 Hun, 234, 28 N. Y. Supp. 400; Rutledge v. Fishburne, supra, note page 767 of 97 Am. St. Rep.

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