Elmore v. Galligher, 3 Div. 489

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation205 Ala. 230,87 So. 349
Docket Number3 Div. 489
Decision Date20 January 1921

87 So. 349

205 Ala. 230


3 Div. 489

Supreme Court of Alabama

January 20, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by C. Frank Galligher against Ludlow Elmore, as guardian of minors, and another, to quiet title. From a decree for complaint, appeals were separately taken by the defendants. Affirmed. [87 So. 350]

Ludlow Elmore, of Montgomery, pro se.

Weil, Stakely & Vardaman, of Montgomery, for appellee.


The doctrine of equity courts, that the property rights of unborn contingent remaindermen or executory devisees may be concluded by judicial decree in cases where they are virtually represented by living parties who are before the court, has been recognized and applied by this court.

Where a will gave an undivided interest in land to a son, with remainder to his surviving children, the decree in a suit for partition against the son and his children then living was held as binding upon children subsequently born, who, it was said, were represented in the partition suit by both the son and the living children. Letcher v. Allen, 180 Ala. 254, 60 So. 828. And where a trustee held property for his own children who should survive him, it was held that he could maintain a bill for the sale of the property and reinvestment of its proceeds, subject to the trust, against the living children, so as to bind by the decree afterborn children who would belong to the same class as those then living. Bibb, as Trustee, v. B.S. Bibb, Jr., 86 So. 376.

In those cases, it will be observed, the unborn remaindermen were in fact represented by persons of their own immediate class, though it was said in Letcher v. Allen that they were also sufficiently represented by the life tenant whose estate preceded their own.

As to the sufficiency of the representation of unborn remaindermen by parties whose estates precede or follow the estate of such remaindermen, there being no living members of their class, so that their interests may be bound by judicial decree, the courts are not in harmony. The great weight of authority, however, seems clearly to the effect that such representation is sufficient, provided all the interests owned by persons in esse are before the court, and some one or more of them would be adversely affected by the decree equally with the class not in esse, and would therefore have the same interest and would be equally certain to present to the court the merits...

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12 cases
  • Ussery v. Darrow, 8 Div. 964.
    • United States
    • Supreme Court of Alabama
    • 20 de abril de 1939
    ...property to be made for reinvestment in the interest of all, and applied this principle of virtual representation. In Elmore v. Galligher, 205 Ala. 230, 87 So. 349, 351, the Court held that the principle of virtual representation had application to a case in which there was a sale of proper......
  • Bearss v. Corbett , 12529.
    • United States
    • Indiana Court of Appeals of Indiana
    • 11 de outubro de 1927
    ...in the Fletcher Case. And the decision in each court was but the legitimate outgrowth of King v. Rea, 56 Ind. 1. In Elmore v. Galligher, 205 Ala. 230, 87 So. 349, an unmarried life tenant without children brought an action against another life tenant for the sale of land held by them, with ......
  • Britling Cafeteria Co. v. Irwin, 6 Div. 480.
    • United States
    • Supreme Court of Alabama
    • 17 de janeiro de 1935
    ...v. Steverson, 211 Ala. 103, 99 So. 639. The language of charge 15 was used arguendo in the opinion of the court in Elmore v. Galligher, 205 Ala. 230, 87 So. 349, as a basis for holding that the evidence left the matters at issue in that case to mere conjecture, justifying the affirmative ch......
  • Bearss v. Corbett, 12529.
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 de julho de 1926
    ...none where the purpose of the action was as here to extinguish the adverse rights of a contingent remainderman. In Elmore v. Galligher, 205 Ala. 230, 87 So. 349, it was held that- “In the application of this principle, it would seem that the character of the suit, and the purpose and effect......
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1 books & journal articles
  • An historical analysis of the binding effect of class suits.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 6, August 1998
    • 1 de agosto de 1998
    ...question ... convenience and justice require that there should be a complete decree."). (283) Id. at 867. (284) See Elmore v. Galligher, 87 So. 349, 351 (Ala. 1921) (holding that the property rights of unborn contingent remaindermen may be extinguished by judicial decree where the remainder......

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