Farr v. Gilreath

Citations

• 23 S.C. 502
• 1885 S.C. LEXIS 129

Syllabus

<p>1. A testator by his will declared: “I give unto my son R., in trust for my daughter M., the lots that I live on in the town of G. If my daughter M. should die leaving no child, it is my wish that her trustee should sell the property in his hands and divide the proceeds of the same equally between my surviving children, or the heirs of their bodies.. But in case she should have a child or children, and they live to come of age, then the property belongs to the child or children at the death of their mother.” Held, from the intent of the testator and the duties imposed upon the trustee, that the fee in these lots of land was devised directly to the trustee, and that the trusr. was not executed.</p> <p>2. The interest here given to testator’s “surviving children” was a contingent remainder.</p> <p>3. Upon the happening of the contingency, the surviving children wore not entitled to the land itself, but to “the proceeds of the same.” The ..land then became personalty,.and these remaindermen, having no title thereto, could not recover it from one to whom the trastee had conveyed; but if such conveyance was void, they might follow the land, as impressed with a trust, into the hands of the purchaser, and demand a sale, so that they might receive the proceeds.</p> <p>4. It is the policy of the law to sustain judicial sales when it can be done without violating principle or doing injustice.</p> <p>5. Contingent remaindermen in esse and within reach are necessary parties to a proceeding to sell the land in which they have such an interest, and if not parties, they are not bound by the judgment. Moseley v. Hankinson (22 S. O., 323) approved, and some points of difference between that case and this stated.</p> <p>6. The daughter M., a paralytic and childless widow, filed her bill against R., the trustee, to require the sale of this property, the income from which was alleged to bo inadequate to her support, and to reinvest the proceeds. The court so ordered, and the trustee