The following opinion was filed June 22, 1899:
Maeshall, J.
There does not appear to be any serious,, if any, controversy between the parties to this cause. "VYhile- . the attitude of counsel for appellants and respondent is in form adversary, all appear in fact to contend for a declaration by this court that the judgment appealed from is right and binding upon all persons interested in the property and that a sale of it made pursuant to such judgment will entitle the purchaser to an absolute title in fee simple thereto. FTo question seems to be raised by the learned counsel who appears as guardian ad litem for the infant defendants but that the judgment rendered was proper, but-he deems it important that a final adjudication by this court should be had as regards the binding force of the decree. [506]*506upon persons not before the court otherwise than as represented by those in whom the immediate estate in remainder is vested, in order that the property may be sold under such circumstances that the price obtained will not be affected by any suspicion as to whether the purchaser will take a full title thereto. In that counsel for respondent agree. Notwithstanding the harmony indicated, in view of the fact that the defendants are infants and the title vested in them, in whole or in part, may go over to persons not now in being, the examination of the result in the court below must include the subject of whether the proper judgment was rendered on the facts found, both as to its binding force on all persons having vested or contingent interests in the property, and as to the disposition of the proceeds of the proposed sale.
As to whether the judgment acts on the whole title, it is considered that the owners in being of real estate, for all the purposes of litigation affecting the jurisdiction of the court to deal with the whole title, stand not only for themselves, but for all that may come after them. The rule is universal, and, generally speaking, persons in being having only contingent interests are deemed to be represented by the owners of the precedent estate of inheritance, for the purposes of litigation. To that general rule there are some exceptions not necessary to be noted in this opinion, as they <do not apply to this case. The owner of the life* estate here, and the owners- of the estate in remainder, all being parties, the judgment of the court and its execution will act upon the whole title to the property, binding all persons having vested or contingent interests therein, present or future. It is often said that such is the rule as a matter of convenience or necessity, but suffice it to say that it is a rule of law as inflexibly binding upon property in lands as any principle that has received judicial sanction so long as not to be open to question. Calvert, Parties, 48; Mitford, PL [507]*507173; 2 Spence, Eq. Jur. 707; 1 Smith, Ch. Pr. 92; Story, Eq. Pl. (Redf. ed.), § 144; Barb. Parties (2d ed.), 488-9; Nodine v. Greenfield, 7 Paige, 544; Mead v. Mitchell, 17 N. Y. 210; McArthur v. Scott, 113 U. S. 340; 17 Am. & Eng. Ency. of Law, 728; Hale v. Hale, 146 Ill. 227; Gavin v. Curtin, 171 Ill. 640; Kent v. Church of St. Michael, 136 N. Y. 10; Kirk v. Kirk, 137 N. Y. 510.
As to whether the judgment improperly disturbs the suspension of the power of alienation as to the property in question, the creator of the life estate for plaintiff and the estate in remainder for her children had an undoubted right to place the title to his property beyond the power of any person acting for the owners of the estate in remainder to prevent it going to them m specie, and his wishes in that regard must be carried out. so far as possible. It is not doubted but that the powers of a court of equity are ample to prevent the destruction of the estate in remainder under the circumstances of this case. Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstance not foreseen by him and provided for, the court may intervene, but only for the purpose of preserving, and so far as necessary to preserve, the property. If it cannot be preserved in the form intended, it may be preserved in its equivalent. It is not the interests of those in remainder, as such interests may appear to the court, that are to be considered and conserved, but their interests as the creator of the estate in remainder provided for them. So the fact, if it be a fact, that it would be for the best interests of the infant owners of the estate in remainder to allow them an immediate benefit therefrom to maintain and educate them, does not warrant a disturbance of the scheme intended to postpone such benefit to a later time. It is the necessity that something shall be done to guard against the danger that the title in remainder may be prevented from reaching [508]*508defendants in possession at all, which calls into activity the equity power of the court.
In Bofil v. Fisher, 3 Rich. Eq. 1, upon which much reliance is placed by respondent’s counsel, whether the court possessed equity powers to act under such circumstances as we have in this case, was considered and decided in the affirmative. True, it appears by the statement of the case and some things said in the opinion, that in adjudging the sale in the court below and affirming the judgment on appeal the interests of the life tenant and of the owners of the estate in remainder, as regards immediate enjoyment of the subject of the suit, was considered, but the sole question presented and decided on appeal was whether the court possessed power to bar, by its decree, the unborn and absent contingent re-maindermen. No question as to the proper distribution of the fund arising from the sale was considered or decided.
In Hale v. Hale, 146 Ill. 227, the court decided, in effect, that for the purpose of preserving the estate for those ultimately entitled thereto, the court could authorize the conversion of property of one kind into that of another, and the holding of the latter as the equivalent of the former. In Gavin v. Curtin, 171 Ill. 640, also cited by respondent, a case quite similar to the one before us, the court directed a sale of the property for the purpose of preserving the' estate of the life tenant, and that of the remaindermen as well, from being divested by tax liens and a mortgage to which both estates were subject, it appearing that the income from the property was not sufficient to keep down the interest and taxes, and that the improvements were likely to go to waste for want of necessary repairs. The power of equity to furnish an adequate remedy to meet the necessities of the situation was held to be beyond reasonable controversy, but that the remedy in such case should be adapted to,the preservation of the property and be limited to that. In such [509]*509an emergency the court is required to stand in the place of the creator of the estates, and do what he would have authorized had he anticipated the exigencies rendering some change in his scheme necessary in order to prevent the loss of the subject of it.
Probably no case can be found that goes further than those referred to. The rule they recognize being one of necessity, its scope is obviously limited by the purpose which calls for its application, that of preserving the subject and title of the estate.
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The following opinion was filed June 22, 1899:
Maeshall, J.
There does not appear to be any serious,, if any, controversy between the parties to this cause. "VYhile- . the attitude of counsel for appellants and respondent is in form adversary, all appear in fact to contend for a declaration by this court that the judgment appealed from is right and binding upon all persons interested in the property and that a sale of it made pursuant to such judgment will entitle the purchaser to an absolute title in fee simple thereto. FTo question seems to be raised by the learned counsel who appears as guardian ad litem for the infant defendants but that the judgment rendered was proper, but-he deems it important that a final adjudication by this court should be had as regards the binding force of the decree. [506]*506upon persons not before the court otherwise than as represented by those in whom the immediate estate in remainder is vested, in order that the property may be sold under such circumstances that the price obtained will not be affected by any suspicion as to whether the purchaser will take a full title thereto. In that counsel for respondent agree. Notwithstanding the harmony indicated, in view of the fact that the defendants are infants and the title vested in them, in whole or in part, may go over to persons not now in being, the examination of the result in the court below must include the subject of whether the proper judgment was rendered on the facts found, both as to its binding force on all persons having vested or contingent interests in the property, and as to the disposition of the proceeds of the proposed sale.
As to whether the judgment acts on the whole title, it is considered that the owners in being of real estate, for all the purposes of litigation affecting the jurisdiction of the court to deal with the whole title, stand not only for themselves, but for all that may come after them. The rule is universal, and, generally speaking, persons in being having only contingent interests are deemed to be represented by the owners of the precedent estate of inheritance, for the purposes of litigation. To that general rule there are some exceptions not necessary to be noted in this opinion, as they <do not apply to this case. The owner of the life* estate here, and the owners- of the estate in remainder, all being parties, the judgment of the court and its execution will act upon the whole title to the property, binding all persons having vested or contingent interests therein, present or future. It is often said that such is the rule as a matter of convenience or necessity, but suffice it to say that it is a rule of law as inflexibly binding upon property in lands as any principle that has received judicial sanction so long as not to be open to question. Calvert, Parties, 48; Mitford, PL [507]*507173; 2 Spence, Eq. Jur. 707; 1 Smith, Ch. Pr. 92; Story, Eq. Pl. (Redf. ed.), § 144; Barb. Parties (2d ed.), 488-9; Nodine v. Greenfield, 7 Paige, 544; Mead v. Mitchell, 17 N. Y. 210; McArthur v. Scott, 113 U. S. 340; 17 Am. & Eng. Ency. of Law, 728; Hale v. Hale, 146 Ill. 227; Gavin v. Curtin, 171 Ill. 640; Kent v. Church of St. Michael, 136 N. Y. 10; Kirk v. Kirk, 137 N. Y. 510.
As to whether the judgment improperly disturbs the suspension of the power of alienation as to the property in question, the creator of the life estate for plaintiff and the estate in remainder for her children had an undoubted right to place the title to his property beyond the power of any person acting for the owners of the estate in remainder to prevent it going to them m specie, and his wishes in that regard must be carried out. so far as possible. It is not doubted but that the powers of a court of equity are ample to prevent the destruction of the estate in remainder under the circumstances of this case. Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstance not foreseen by him and provided for, the court may intervene, but only for the purpose of preserving, and so far as necessary to preserve, the property. If it cannot be preserved in the form intended, it may be preserved in its equivalent. It is not the interests of those in remainder, as such interests may appear to the court, that are to be considered and conserved, but their interests as the creator of the estate in remainder provided for them. So the fact, if it be a fact, that it would be for the best interests of the infant owners of the estate in remainder to allow them an immediate benefit therefrom to maintain and educate them, does not warrant a disturbance of the scheme intended to postpone such benefit to a later time. It is the necessity that something shall be done to guard against the danger that the title in remainder may be prevented from reaching [508]*508defendants in possession at all, which calls into activity the equity power of the court.
In Bofil v. Fisher, 3 Rich. Eq. 1, upon which much reliance is placed by respondent’s counsel, whether the court possessed equity powers to act under such circumstances as we have in this case, was considered and decided in the affirmative. True, it appears by the statement of the case and some things said in the opinion, that in adjudging the sale in the court below and affirming the judgment on appeal the interests of the life tenant and of the owners of the estate in remainder, as regards immediate enjoyment of the subject of the suit, was considered, but the sole question presented and decided on appeal was whether the court possessed power to bar, by its decree, the unborn and absent contingent re-maindermen. No question as to the proper distribution of the fund arising from the sale was considered or decided.
In Hale v. Hale, 146 Ill. 227, the court decided, in effect, that for the purpose of preserving the estate for those ultimately entitled thereto, the court could authorize the conversion of property of one kind into that of another, and the holding of the latter as the equivalent of the former. In Gavin v. Curtin, 171 Ill. 640, also cited by respondent, a case quite similar to the one before us, the court directed a sale of the property for the purpose of preserving the' estate of the life tenant, and that of the remaindermen as well, from being divested by tax liens and a mortgage to which both estates were subject, it appearing that the income from the property was not sufficient to keep down the interest and taxes, and that the improvements were likely to go to waste for want of necessary repairs. The power of equity to furnish an adequate remedy to meet the necessities of the situation was held to be beyond reasonable controversy, but that the remedy in such case should be adapted to,the preservation of the property and be limited to that. In such [509]*509an emergency the court is required to stand in the place of the creator of the estates, and do what he would have authorized had he anticipated the exigencies rendering some change in his scheme necessary in order to prevent the loss of the subject of it.
Probably no case can be found that goes further than those referred to. The rule they recognize being one of necessity, its scope is obviously limited by the purpose which calls for its application, that of preserving the subject and title of the estate. Eor that purpose the scheme of the creator of the estates may be invaded and varied by changing property which in one form is liable to be lost, into another form not subject to that danger, the property in its new form to be devoted to the same use and to go in the same line, upon the same contingencies, as that for which it was taken in exchange,— not to be distributed and consumed. No necessity of preservation calls for such a remedy as consumption of the property and entire annihilation of the grantor’s scheme.
It follows that the judgment appealed from, so far as it goes beyond providing for the sale of a part of the property to create a fund out of which to guard against those dangers that now menace the title in remainder, and for such invest-' ments of the residue of the fund and such disposition of the property unsold as will prevent a recurrence of such dangers and as far as practicable remedy the impairment of the estate caused by the improvident management by the life tenant, must be modified. There is no justification for distributing the proceeds of a sale 'as was attempted by the judgment appealed from. Ey such judgment the interest of the life tenant is to be computed and paid to her, whereas the scheme of her father entitles her to the income of the whole property for life, subject to those duties in respect to keeping up repairs and keeping down taxes which devolve upon a life tenant by law. The judgment authorizes the division [510]*510of the remainder of the fund, after deducting the expenses of the litigation and the value of plaintiff’s life estate, into three parts, and the immediate payment of $5,000 out of two of the shares to discharge a supposed equitable claim of the plaintiff for the past support of the oldest children. It was not intended that either of the defendants should have any part of the corpus of the property till it should reach them under the will of their mother or by reason of her death without devising the property. What part of the property either of the defendants -will finally have is uncertain. Each has a vested interest, but it is subject to be divested by the will of the mother or be diminished by the future birth of children. To compute the value of the estate in remainder, as represented by the proceeds of the sale of the property, and make a present division of it, would be erroneous in the extreme.
Just what, from an equitable and business standpoint, looking only to the purpose to be conserved, should be done under the circumstances of this case, is by no means clear; but it is plain that nothing should be done for the purpose of a present distribution and enjoyment of the property, since it was designed to be kept m solido till the time for distribution fixed by plaintiff’s father. The fact that she has imprudently so handled the property as to prejudice her interests and’those of the defendants as well, cannot change her father’s scheme in law or in equity so as to give anything more to her than he designed she should have, or give her that in a different way than he designed she should receive it, to the prejudice" of the estate in remainder. She was entitled to the income of the property during her life and was bound, out of such income, to preserve the property from loss by taxes or want of repairs. Having put it out of her power to perform such duty, and demonstrated most clearly that the interests of those to come after her should he guarded by a stronger hand, the necessity of fortifying [511]*511against the recurrence of the present difficulty is quite as important as overcoming such difficulty. Before the commencement of this action plaintiff incumbered her life estate-to such an extent that the interest on the mortgage indebtedness absorbs the' entire income from the property, leaving nothing with which to pay the taxes. If she used the income to keep down taxes she was liable to lose her life estate by the enforcement of the mortgages; if she used the income to keep down interest on the mortgages, and let the taxes go, she was liable to sacrifice the whole estate. In meeting that situation it is deemed best that the mortgages on the life estate should be controlled by investing so much of the fund as may arise from any sale that may be made as shall be necessary to buy them in for the benefit of all persons interested in the estate, the amount so used to be returned to the- fund as fast as can be from the future income from the property, the end to be attained being to preserve the property in sólido till the termination of the life estate. The entire fund created by the sale of any part of the property, so far as practicable, should be preserved in lieu of such part. The necessary use of some of the fund to pay such expenses of the litigation as plaintiff ought to pay, or to pay the taxes, should be returned to the fund as fast as practicable out of the income, keeping in view that such fund should be held to the same use and subject to the same final distribution as the benefactor intended. It is considered that the end which the decree should aim to secure can be most certainly accomplished by vesting the title in fee, and the control of all the property, that to be sold and that not to be sold as well, in a suitable trustee, to be hereafter administered under the direction of the court; that the trustee should be required to give a suitable bond to secure the faithful performance of his duties, as indicated in the judgment appealed from; that the property directed to be sold by such judgment should be sold as therein indicated; that [512]*512■out of tbe proceeds of the sale there should be paid appellants’ costs, disbursements, and expenses in this litigation, -such part as are taxable as costs against respondent to be ■charged to her by the trustee to be subsequently repaid as ■hereafter indicated; that there should also be paid and charged to respondent, to be returned as hereafter indicated, all outstanding tax claims against the property; that any lien or lienabie claim on the estate in remainder should be ■paid from the fund, permanently reducing it that amount; that the balance • of the fund should be invested, first, by buying in for the benefit of the fund the mortgage incum-brances placed on respondent’s life estate before this action was commenced, with the indebtedness secured thereby; and that the residue of the fund should be invested in good interest-bearing securities subject to the approval of the court. The trustee should disburse the income from the invested fund, and the rents from the remaining realty, first, by paying current expenses of administering the trust, and taxes, and insurance; second, by adding to the invested fund the .amount of the charges against plaintiff for taxes and other matters paid for her account; third, by freeing the invested fund of the indebtedness of plaintiff, secured by the mortgages on her life estate; fourth, by paying the balance to respondent. The result will be that after the invested fund .shall have been increased to the amount paid for plaintiff’s account, and be freed from her indebtedness secured on her life estate, the entire income from the invested fund, and the remaining real estate as well, less sufficient to keep up repairs and taxes and pay for administering the trust, will .go to the respondent. She will have the benefit of the entire income from all the property, as was originally designed, but such income will be devoted to the discharge of her obligations to the property till they shall be extinguished.
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in accordance with this opinion.
Edwardj 8. Bragg and Bollin B. Mallory, for the appellants.
[No brief on file.]
T. W. Spence, of counsel, for the respondent.
The respondent moved for a rebearing.
In support of the motion there were separate briefs by Edward 8. Bragg, of counsel for the infant defendants and guardian, and T. W. Spence, of counsel for the respondent.
The motion was granted September 26,1899.
The cause was reargued October 24, 1899.
The following opinion was filed November 7, 1899: