The bill assumes, and we think correctly, that under the will of his mother, Horace Thurston is tenant for life of the Babcock farm in Hopkinton, and that his children or issue are entitled therein to a remainder in fee. His estate is an equitable one; the order to pay over the rents to him requiring to its performance the legal estate to be in the trustee; *Page 300 but as the order does not apply to the heirs or issue of Horace, there is nothing to prevent the subsequent limitation from being executed in them. Shapland v. Smith, 1 Brown, Ch. C. 74;Doe d. Leicester v. Briggs, 2 Taunt. 109; Brown v.Ramsden, 3 Moo. 612; Tenny d. Gibbs v. Moody, 3 Bingh. 3;Doe d. Greatrex v. Homfray, 6 Ad. Ell. 206. The estate of Horace being equitable, and of his heirs, who are to take the fee after him, being legal, the rule in Shelley's case does not apply; and the latter take contingently as purchasers. Fearne on Contingent Rem. ch. 1, sect. 5, art. 9, p. 52. The limitation over upon the death of Horace without issue, indicates that by the term "heirs," the testatrix intended "heirs of the body" of Horace.
Horace Thurston being then tenant for life of the farm in question, the expense of keeping the buildings thereon in tenantable repair, must, as between him and those entitled in remainder, be a charge upon his estate. Bostock v. Blakeney, 2. Bro Ch. C. 653; Hibbert v. Cooke, 1 S. Stu. 552; Nairn v. Majoribanks, 3 Russ. 582; Caldicott v. Brown, 2 Hare, 144. If we construe the trust to authorize the complainant to manage and let the property, and to pay over the annual rents as they accrue to the life tenant, the complainant would be justified in applying from time to time so much of them to such repairs as would be necessary to the performance of this duty by the life tenant. No power of sale having been conferred upon the complainant as trustee, he cannot sell the estate of hiscestui, even to make the most necessary repairs; and, as thecestui is sui juris, and there is no restraint against his alienating his estate, a court of equity would not, if for no other reason, authorize the trustee to do what his cestui himself could do, if his estate were not worth retaining, or he was not in a situation to bear the burdens which it imposed.
It may possibly be, that although it is no part of the duty of the infant defendants, as contingently entitled to a remainder in fee in this farm, to pay for necessary repairs upon the buildings on it during the pendency of the life-estate, yet that rather than the buildings should fall into decay, it would be a benefit to them, that a portion of the farm should be sold *Page 301 to enable the making of such repairs. What jurisdiction, however, has this court to authorize the trustee of their father's life estate to sell their interest, to which his trust does not extend, for such a purpose? What right has the court, calculating remote and contingent advantages to them, to convert their property, in order to apply its proceeds to repairs which are incumbent upon the estate of another, although that other may be their father?
Even where the trustee of the real estate of an infant, not empowered to sell, applies to the court for leave to sell it, upon the ground of its being for the infant's benefit that it should be converted for better investment, although there is some contrariety of decision, the best approved doctrine would seem to be, that the court has no jurisdiction to authorize such a conversion. In Taylor v. Philips, 2 Ves. Senior, 23, Lord Hardwicke is reported to have said, that "there is no instance of this court's binding the inheritance of an infant by any discretionary act of the court. As to personal things, it has been done; but never as to the inheritance; for that would be taking on the court a legislative authority, doing that which is properly the subject of a private bill." Indeed, whatever doubts may have been entertained on the subject formerly, the modern doctrine clearly is, that where a trust exists, the degree of authority, as well as the manner of its exercise, depends on the terms of the instrument creating it. In other cases the court is thrown on its inherent jurisdiction, and has authority to manage the estate during minority, and to apply its proceeds to the infant's benefit; but there is no inherent power to dispose of or alter the estate itself, except in cases of election and partition, where the disposition is demandable as of right by other parties, and of the devolution on an infant of a mortgaged estate, where a sale is the only protection against foreclosure.Simson v. Jones, 2 Russ. Myln. 365; Calvert v. Godfrey, 6 Beav. 97; Peto v. Gardner, 2 Y. Col. 312; Garmstone v. Gaunt, 1 Coly. 577; Adams's Equity, 284, 285; Williamson et al. v.Berry, 8 Howard, 537, 554, 555, 586; see, however, Inwood v.Twyne, Ambl. 417; Terry v. Terry, Prec. Ch. 273; Matter of Salisbury, 3 Johns. Ch. R. 347; Huger v.Huger, 3 Dessaus. 18; *Page 302 Stapleton v. Langstaff, Ib. 22, denied in Rogers v. Dill, 6 Hill, 615; and see Williams's case, 3 Bland, 186.
In this state the power to authorize the mortgage or sale by guardians of the real estate of infants, "to pay their debts, the expenses of supporting them or their families, or for any other proper purpose whatever, including the making of a better or more advantageous investment, and the settlement of their estates with incidental charges," is, by statute, confided to the courts of probate; Rev. Stats. ch. 151, sect. 10; and similar statutes are to be found in most of the states of the Union. Hill on Trustees, 396, n. 1. If the purpose for which the sale of their property is asked be a proper one, the language of this statute is certainly broad enough to include the case of the infant defendants presented by this bill; a guardian being first appointed and qualified to apply for them to a court of probate. Rev. Stats. ch. 138, sect. 6. If a case should arise within the spirit, though not within the letter of such, or a similar, statute, a special authority to a trustee to convert the real estate of his infant, lunatic or otherwise incapable cestui, would seem to partake, as intimated by this court in Taylor v. Place, 4 R.I. Rep. 332-334, more of a legislative than of a judicial character, and would be, having been long exercised and not prohibited by the constitution, within the constitutional competence of the General Assembly. Watkins v. Holman et al. 16 Pet. 25; Davis v. Johannot, 7 Met. 388; Snowhill v.Snowhill, 2 Green's Ch. R. 20; Norris v. Clymer, 2 Barr, 277; Spotswood v. Pendleton, 4 Call, 514; Dorley v.Gilbert, 11 Gill. Johns. 87.
With these instructions, our office is performed by dismissing this bill; but as the bill has been filed to carry out the views of both the adult parties, with the understanding that no expense with regard to it is in any form to be visited upon the estates of the infants, it must be dismissed without costs. *Page 303