Ex parte Lyman

• Decision Date: 26 June 1875
• Parties: PETITION OF DANIEL LYMAN et al. for leave to sell trust property.
• Court: Rhode Island Supreme Court

11 R.I. 157

PETITION OF DANIEL LYMAN et al. for leave to sell trust property.

Supreme Court of Rhode Island.

June 26, 1875

In a petition in equity brought under Gen. Stat. R.I. cap. 167, § 7, for the sale of a trust estate: -

Held, that all living persons who by any contingency might be entitled to the estate must be made parties, and that following the analogy of Gen. Stat. R.I. cap. 219, § 19 regulating partition by equity process and at law, the interest of persons not in being may be effectually represented by a person appointed by the court for this purpose.

PETITION in equity under Gen. Stat. R.I. cap. 167, § 7, for the sale of trust property.

The following opinion was given by the court on the question who should be made parties to the proceeding.

James M. Ripley, for petitioners.

POTTER J.

This is a petition in equity under our statute, empowering this court to authorize a sale of trust estates for the purpose of changing the investment; and the question is who should be made parties in the proceeding.

Elisha Dyer by his will, proved March 21, 1854, devised certain real estate to trustees for the benefit of his daughter Caroline Lyman for life, and on her decease to transfer it to such one or more of her children or grandchildren as she should by will appoint, and if she dies without leaving any such will then to convey it to those who should be her heirs at law by the statute of descents.

Mrs Lyman is living, and if she should die now without a will, her son Daniel, if living, would take the whole property; if he should not survive her and leave no child or children, then her brother Elisha and sister Frances J. Vinton would, if living, take it; and if either of them were dead leaving children, those children would succeed. So that there are several contingencies on Mrs. Lyman's death.

The authorities on this point are few. Sales in suits for partition are of recent introduction in England and in this country; and sales of trust property were not formerly frequent, and when made were often made under special legislative acts. In the case of Hopkins v. Hopkins, 1 Atk. 581, 590, Lord Hardwicke says it was an established rule that in case of a trust, no matter how many contingent limitations there might be, the trustees and the first person in estate were the only necessary parties: the freehold was in the trustees. But in that case the controversy seems to have been as to who (if any one) was entitled to the first beneficiary interest; the heir at law claiming it. See also 2 Daniel Ch. Pr. 3d Amer. ed. 1600; Cholmondeley v. Clinton, 2 Jac. & W. 2, 5, 133, which was a question of construction of settlement in a trust deed; Same Case, affirmed 4 Bligh, 1; Lloyd v. Johns, 9 Ves. 37, 52, 55, 57, 63 (where Lord Eldon refers by way of analogy to the case of a common recovery); Clagget v. Hall, 9 Gill & J. 80; Gifford v. Hort, 1 Sch. & Lef. 386, 396, 407, 410; where Lord Redesdale says he cannot find that the point has anywhere been ever fully discussed, and remarks on the frauds which have been committed upon persons entitled under settlements, by connivance with the tenant for life. It was said in argument (392), that at law a judgment against tenant in tail does not bind the remainder-man (Ferrar's case, 6 Rep. 8 a ), and that a common recovery binds only from the policy of the law and from the supposed recompense made.

We can easily understand why in partition and many other cases a court might hold a share to be well represented by the first tenant in tail or person holding the first estate; while the same reasons would not apply where the object was a sale of the property or a total change of its nature.

On the other hand, in Goodess v. Williams, A. D. 1843, 2 Y. & C. C. C. 595 (Eng. Ch. Reports, vol. 21), which was a bill to subject trust land to sale for debts, the trust was for the wife and children, and if they died, & c., & c., then to the testator's three sisters and their children, the wife and her children only being made parties; it was held that the inheritance was not represented. See also Att'y Gen. v. Goddard, 1 Turn. & R. 348; Anon. Case 936, 12 Mod. 560; Sherrit v. Birch, 3 Bro. C. C. *228; Hunt et al. v. Booth at als. 1 Freeman (Miss.), 215, where property was limited to infants in remainder, and citing Herring v. Yoe, 1 Atk. 290, where property was limited to husband for life, then to the wife for life with remainders. Stephen v. Terrel, 3 T. B. Mon. 131; Osborne v. Usher, 2 Bro. P. C. 314; Wingfield v. Whaley, 2 Bro. P. C. 447; Story's Eq. Pleading (Redfield's ed.), §§ 144, 147; Smith's ed. of Mitford, *173; Collins v. Lofftus, 10 Leigh, 5, holding that in equity the cestui que trust is not generally bound by a decree against the trustee. And see comments in Smith's Chancery Practice, 94, on No. 30 of Lord Cottenham's Equity Rules of 1841, which is the same as our Equity Rule No. 25 as to suits against trustees.

In many of the states (and also in this) sales of trust...