Opinion
04-05-1904
In re CLEMENT et al.
Willson, Carr & Stackhouse, for the application.
Application by Alfred Clement and others for the sale of lands, under Gen. St p. 2992, par. 46.
Willson, Carr & Stackhouse, for the application.
MAGIE, Ch. This is an application to the court for a direction for the sale of lands under the provisions of the act entitled "An act to authorize the sale of lands limited over to infants, or in contingency, in cases where such sale would be beneficial." 3 Gen. St. p. 2992. By the will of Samuel Allen, deceased, it appears that the lands in question were devised to his daughter Mary Anna Clement for her life, and at her death to her husband, Alfred W. Clement, if he survived her, for his life, and at their death to their children in fee. It cannot be doubted, under our decisions, that the children of Mary Anna and Alfred W. Clement at the death of Samuel Allen became seised of a vested estate in remainder, subject to be opened to admit the interest of after-born children of their mother. By the proofs it appears that Mary Anna and Alfred W. Clement are both alive, and that she has reached the age of 68 years. Their living children are all of age, and those who have died all died in infancy and intestate. It is not open to question that upon this devise, there is, to use the language of the act, a "future * * * estate in lands * * * wholly or in part limited over to * * * persons not in esse"; i. e. to after-born children of Mary Anna Clement. Such children, if subsequently born, would become vested with a share of the lands. This presents a case under the act in question, and makes it "lawful" for the chancellor to direct a sale thereof. If a sale is directed, this court will be burdened with the investment and administration of the fund derived therefrom until the death of the longer liver of the two tenants for life. Since the tenant for life, from whom alone issue can come capable of taking any share of the lands in remainder, has reached an age which, in the ordinary course of nature, excludes any reasonable probability of future issue capable of taking, and since all the children now having vested interests in the land are of full age and capable of conveying, with the consent of the life tenants, the lands to a purchaser, and by such a conveyance would vest the purchaser with a title which would only be subject to the shadowy and remote contingency of the birth of children hereafter, it has seemed questionable whether it became the duty of the court to take upon itself this burden. But it cannot be said, in contemplation of the law, there is an extinct possibility of issue. One does not become tenant in tail after possibility of issue extinct, by reason that the person from whom issue is to come has passed the age of childbearing, but only on the death of such person. And Blackstone therefore declares that issue is always presumed to be possible until death. 2 B1. Com. 125. Under such circumstances, I have reluctantly come to the conclusion that it is my duty to direct a sale of the lands as advised by the master; the evidence before him clearly supporting his report that a sale will be for the benefit of the present and future owners, and all the persons presently interested consenting to and asking that such sale be made.