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 after-born children who would belong to the same class as those then living. Bibb, as Trustee, v. B. S. Bibb, Jr., 204 Ala. 541, 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 of the question upon which the decree is sought. Ridley v. Halliday, 106 Tenn. 607, 61 S.W. 1025, 53 L.R.A. 477, 82 Am. St. Rep. 902; Rutledge v. Fishburne, 66 S.C. 155.44 S.E. 564. 97 Am. St. Rep. 757, and note, 762-768; Kent v. Ch. of St. Michael, 136 N.Y. 10, 32 N.E. 704, 18 L.R.A. 331, 32 Am. St. Rep. 693; Downey v. Seib, 185 N.Y. 427, 78 N.E. 66, 8 L.R.A. (N.S.) 49, 113 Am. St. Rep. 926; Denegre v. Walker,214 Ill. 113, 73 N.E. 409, 105 Am. St. Rep. 98, 2 Ann. Cas. 787, and note, 790-793; McArthur v. Scott, 113 U.S. 340,5 Sup. Ct. 652, 28 L. Ed. 1015; Matthews v. Lightner, 85 Minn. 333,88 N.W. 992, 89 Am. St. Rep. 558; Ann. Cas. 1913C, note p. 659; 20 Rawle C. L. 670, § 9.
In the application of this principle, it would seem that the character of the suit, and the purpose and effect of the decree, are of controlling importance; and where the proceeding seeks to adjudicate opposing rights, and the effect of the decree is to extinguish in part or in whole the estates of persons not yet in esse, greater strictness is observed in the requirements of virtual representation by living parties.
But where, as here, the suit does not present any antagonism of estates and interests, and the effect of the decree is merely to change the form or identity of the property which is the subject of the several successive estates — which change may well be to the common advantage of all, as was in fact ascertained to be so by the decree here in question — preserving and protecting the contingent interests in the proceeds of the original property, and in the property in which such proceeds are invested, we see no reason why the unborn remaindermen could not be fully and fairly represented, as to such a policy, by either their mother, as holder of a life estate, or by their uncles and aunts, as contingent executory devisees. It was so ruled in Ridley v. Halliday, 106 Tenn. 607,61 S.W. 1025, 53 L R. A. 477, 82 Am. St. Rep. 902, and in Gavin v. Curtin, 171 Ill. 640, 49 N.E. 523, 40 L.R.A. 776, where after-born remaindermen were held to be fully bound.
The decree in equity of the city court of Montgomery in the suit of Emily Clisby v. Peter B. Mastin, et al. (1893) was a valid exercise of the jurisdiction and powers of the court with respect to the estate of the then infant complainant therein, and, under the circumstances exhibited, was binding upon the interests of the after-born children of Mary Clisby Smith, so that the purchasers at the sale made pursuant thereto acquired as to them, as well as to all parties actually before the court, a fee-simple title to the lot here in question. *Page 233
It appears that complainant herein has acquired the interests of those purchasers and is entitled to the relief granted by the decree of the trial court.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.