Eyster Eyster, of Decatur, for appellant. Real property devised to a brother-in-law who predeceases testatrix descends as in case of intestacy, and where there are no heirs competent to take, to the residuary devisee, if one, otherwise it escheats to the State, and personal property to residuary legatee, if one, if not, then to next of kin. Code 1940, Tit. 61, §§ 5, 6. Johnson v. Holifield, 82 Ala. 123, 2 So. 753; First National Bank v. Hartwell, 232 Ala. 413, 168 So. 446; Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493; Henderson v. Henderson, 210 Ala. 73, 80, 97 So. 353. Under clause (c) of the will J.C.F. and William W. Nelson were definitely named as remaindermen, but they having predeceased testatrix and she having died without heirs at law or a husband, her property escheats to the State, and the trust created by this clause continues to exist until the death of May Nelson. Street v. Pitts, 238 Ala. 531, 534, 192 So. 258; Bibb v. Bibb, 204 Ala. 541, 542, 86 So. 376; Edwards v. Edwards, 142 Ala. 267, 39 So. 82; Berry v. Bromberg, 142 Ala. 339, 342, 37 So. 847; Code, Tit. 16, § 25 et seq. Where record affirmatively shows lack of necessary parties, objection must be taken by the court ex mero motu. Steele v. Crute, 208 Ala. 2, 4, 93 So. 694. All persons having a material interest in the subject-matter of a suit must be made parties. Hodge v. Joy, 207 Ala. 198, 207, 92 So. 171; Holland v. Flinn, 239 Ala. 390, 195 So. 265.
33 Am.Jur., 743, § 265; 31 C.J.S. Estates § 89, p. 170; Kennedy v. Durham, 220 Ga. 310, 138 S.E.2d 567; Cooney v. Walton, 151 Ga. 195, 106 S.E. 167; Wing v. Wing, 212 Ark. 960, 208 S.W.2d 776; Bedford v. Bedford, 105 Ark. 587, 152 S.W. 129; Gillespie v. Winston's Trustee, 170 Ky. 667, 186 S.W. 517. The property rights of unborn contingent remaindermen may be concluded by judicial decree in cases where they are virtually represented by living parties before the court. Elmore v. Galligher, 205 Ala. 230, 87 So. 349; Tolley v. Hamilton, 206 Ala. 634, 91 So. 610; Bibb v. Bibb, 204 Ala. 541, 86 So. 376; Ussery v. Darrow, 238 Ala. 67, 188 So. 885; 25 A.L.R. 770, § 2. MERRILL, Justice.
This court has consistently applied the rule that, in the absence of a clear expression of a contrary intention on the part of the grantor, a remainder to the children of a life tenant is a remainder to a class, the members being composed of all the children of the life tenant without regard to the time of birth. Although the interest of the children then in being be said to be vested in them, the enjoyment of such interest is postponed until the falling in of the life estate, and such remainder will be opened up to let in children subsequently born. Duncan v. De Yampert, 182 Ala. 528(15), 62 So. 673; Bibb v. Bibb, 204 Ala. 541(1), 86 So. 376; Henry v. Griffith, 242 Ala. 598(5) (6), 7 So.2d 560; Goodman v. Winter, 64 Ala. 410; Dunn v. Davis, 12 Ala. 135; 33 Am.Jur., Life Estates, Remainders, etc., § 134; 57 A.L.R. 2d 103, et seq. As said in Am.Jur., supra, "The interest of the remaindermen is subject to a contingency affecting the quantum of their interest, but not the quality of their estate." The principle is thus stated in I Simes, Law of Future Interests, § 76, p. 120:
Traditionally, courts of equity have inherent jurisdiction over trusts and the administration of trusts. Bibb v. Bibb, 204 Ala. 541, 86 So. 376 (1920); Dallas Art League v. Weaver, 240 Ala. 432, 199 So. 831 (1941). A series of cases involving the administration of the United Mine Workers of America Welfare and Retirement Funds provides some guidance for the decision in this case.
Where the devise created a remainder in trust for the benefit of a class whose personnel is subject to future change, the trust endures until the members of the beneficiary class are finally determined by the happening of the specified event. Bibb v. Bibb, 204 Ala. 541, 86 So. 376; cf. Street v. Pitts, 238 Ala. 531, 192 So. 258. If futurity is annexed to the substance of the gift, it is contingent. First Nat. Bank v. Cash, 220 Ala. 319, 125 So. 28; Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92; Henderson v. Henderson, supra; Watters v. First Nat. Bank, supra. A court of equity will not defeat the rights of remaindermen, contingent beneficiaries, or of any interest that has not vested, by sanctioning the termination of the trust. 54 Am.Jur. 80, § 78; Rowley v. American Trust Co., 144 Va. 375, 132 S.E. 347, 45 A.L.R. 738; Hills v. Travelers Bank Trust Co., 125 Conn. 640, 7 A.2d 652, 123 A.L.R. 1419; cf. Hatch v. Vandiver, 248 Ala. 209, 27 So.2d 195.
This right is said to be a springing or shifting use when it is for a class whose personnel is subject to future change. Bibb v. Bibb, 204 Ala. 541, 86 So. 376; 26 R.C.L. 1176, section 11. The theory of it is applicable to option rights in property made for the benefit of third parties. It is base on the principle by which all contract rights are determined. And since there was a valuable consideration between the original parties to the contract, neither of them could withdraw the option over the objection of the other party to the contract so as to make it inoperative according to its terms. Bethea v. McCullough, 195 Ala. 480, 70 So. 680; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L.R.A. 148, 30 Am.St.Rep. 47.
Boshell v. Boshell, 218 Ala. 320, 118 So. 553. In the case of Bibb v. Bibb, 204 Ala. 541, 86 So. 376, 377, this Court quoted with approval the following: "A court of chancery has, to some extent, a general supervision over trust estates, and may direct such a disposition as in its discretion seems beneficial to all parties interested, even going so far as to order a sale of the trust estate and a reinvestment of the proceeds without authority being given by the trust instrument, if the conditions are such that it is manifestly in the interest of the trust estate." See 26 R.C.L. 1288, section 139, and cases cited.
But when the object of the trust is the preservation of the title for the benefit of a class whose personnel is subject to future change, the estate is "technically a springing or shifting use," and until the members of the beneficiary class are finally determined the statute in question will not serve to terminate the trust. Bibb v. Bibb, 204 Ala. 541, 86 So. 376; Edwards v. Edwards, 142 Ala. 267, 273, 274, 39 So. 82; Coker v. Hughes, supra. An unincorporated association is without capacity to hold the title to real property. Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211; 34 Corpus Juris 47; 10 Amer.Jur. 60. When a deed of trust is made to trustees for such an association, the title remains in the trustees as such though it is a passive trust, and notwithstanding the statute, because (1) it is a "springing and shifting use" and (2) because the beneficiary cannot hold the title; and the statute of uses, section 6912, Code, can have no field of operation.
In our case of Letcher v. Allen, 180 Ala. 254, 60 So. 828, the proceeding was a partition in kind, as to which the application of this principle seems to be fully recognized. And in our case of Bibb v. Bibb, 204 Ala. 541, 86 So. 376, the will created a trust, with a residuary right in a class of executory devisees, whose membership was mobile and continued to shift. The Court held that a court of equity might cause a sale of trust property to be made for reinvestment in the interest of all, and applied this principle of virtual representation.
Even the mortgage debts on the store property devised by item 5 are payable first from the other property. 69 C. J. 1220; 24 C. J. 462; Foster v. Foster, 219 Ala. 70, 121 So. 80; Fulenwider v. Birmingham Tr., etc., Co., 222 Ala. 95, 130 So. 801, 72 A.L.R. 702; Higinbotham v. Manchester, 113 Conn. 62, 154 A. 242, 79 A.L.R. 85; 69 C. J. 1223. The unborn contingent remaindermen or executory devisees are not represented by any living parties and are not bound by the decree. Letcher v. Allen, 180 Ala. 254, 60 So. 828; Elmore v. Galligher, 205 Ala. 230, 87 So. 349; Tolley v. Hamilton, 206 Ala. 634, 91 So. 610; Bibb v. Bibb, 204 Ala. 541, 86 So. 376; Denson v. Ala. P. I., 220 Ala. 433, 126 So. 133. Blakey, Blakey Levin, of Montgomery, for appellees.