Elmore v. Galligher, 3 Div. 489

• Court: Supreme Court of Alabama
• Writing for the Court: SOMERVILLE, J.
• Citation: 205 Ala. 230,87 So. 349
• Parties: ELMORE v. GALLIGHER.
• Docket Number: 3 Div. 489
• Decision Date: 20 January 1921

87 So. 349

205 Ala. 230

ELMORE
v.
GALLIGHER.

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.

SOMERVILLE, J.

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...