dissenting. 1. The deed executed under the decree of the superior court of Clarke county on February 14, 1871, by the executrix of the estate of James C. Branch, in specific performance of a parol gift. made by the latter many years before, conveyed the land in dispute to B. F. Jones, with words of inheritance, as trustee for Sarah Ann C. Ralls and her present children and any future child or children of hers, free from the debts, contracts, and control of her present husband, as well as any future husband she may have, and after the death of the said Sarah Ann C., to her children, free and relieved of the trust. Under this deed the children, who are the plaintiffs in this case, took an equitable estate as joint usees with their mother during her life, and a legal estate in remainder in fee to take effect in possession at her death. Franke v. Berkner, 67 Ga. 264, 265, 267; East Rome Town Co. v. Cothran, 81 Ga. 359 (1), 360-365; DeVaughn v. McLeroy, 82 Ga. 706, 707; Holcombe v. Tuffts, 7 Ga. 538, 544, 545, 546. This legal remainder vested in the children living at the date of the deed, subject only to open and take in any other child or children who might thereafter be born. Olmstead v. Dunn, 72 Ga. 860, 861.
2. The trust estate therefore, so far.as the children are concerned, was confined to the estate in common which they held as joint usees with their mother during her life. It is so ex*649pressly limited by the deed itself. Consequently the estate of the trustee was less than the fee, because it did not and could not include the legal remainder. Franke v. Berkner and East Rome Town Co. v. Cothran, supra. The extent of a trustee’s estate is measured by the purposes of the trust, and not by words of inheritance affixed to his name. Ibid.; Fleming v. Hughes, 99 Ga. 446. In the case at bar the purposes of the trust were wholly disassociated from the estate in remainder, and the deed did not invest the trustee with any power of sale. Hencda’ sale of the fee by the said trustee only conveyed to the purchaser an estate for the life of the life-tenant, unless the fee was authorized to be sold by the trustee under a lawful judicial order or decree.
3. The petition for the sale of the property to the Rome Hollow-Ware and Stove Company was presented by the trustee as trustee for the mother and children, and by the mother in her individual right. A copy of the aforesaid deed was attached to the petition. The only property which the trustee held in trust for the children -was, as above stated, the estate in common which they possessed as joint usees with their mother during her life. The other estate in the property possessed by them, to wit the remainder, was shown by the deed itself to be a legal estate. The order of court appointing a guardian ad litem expressly named such guardian to represent the children in the “application for the sale of the trust prop-' erty.” By using the definite article the, the judge more clearly indicated that he must have recognized that the title set forth in the petition and deed showed a trust estate and a legal estate, and that his jurisdiction was over the trust estate alone. The order to sell recognized the trustee in that character only, and authorized the trustee, as such, to sell the portion of “said property ” mentioned in the application for the sale. These words “said property” might bear two interpretations; first, the trust property in the designated portion of the land, or, secondly, the entire estate therein, equitable and legal. The first construction would impute a legal intent to the judge and make the order completely legal, because he only had jurisdiction to order the sale of trust property, as will be hereinafter *650shown. The second construction would impute an illegal intent to the judge and make his order legal in part and void in part, for the reason just mentioned. “Where two constructions are open to our choice, it is our duty, in favor of jurisdiction to pass the order and the proper exercise of the same, to adopt that construction which treats the order as completely legal, rather than that which would hold it partially illegal, and, to that extent, void or voidable.” Lamar v. Pearre, 82 Ga. 360. Therefore, to hold that the order only authorized a sale of the trust property will be to treat the order as completely legal, granting that the children had notice of the petition for the sale. Admitting, however, that both the applicants and the judge intended a sale of the fee in the property, still their intention, unlike that of a donor or grantor, would amount to nothing, because the applicants “did not have the fee to sell, and the judge had no power to give them authority to sell it. Hence the case of Headen v. Quillian, 92 Ga. 222, 223, defining the words “ the said trust estate,” as used and intended by the donor in the deed in that case, where, as Judge Bleckley says, “he evidently thought there was more than one trust,”' by using the words “subject .to the above-described trusts” in giving the trustee a power of sale for reinvestment, as well as section 3083 of the Civil Code in reference to the presumption and effect of a sale where parties have the fee to sell and offer the property for sale, have absolutely no application to the question, now under consideration. But the question of imputing a legal intent to the judge or chancellor, which is fully recognized in the case of Lamar v. Pearre, supra, where the change of trustees and the subsequent order to sell the trust property for payment of trust debts and for reinvestment were restricted to the life-estate, may be classed as subsidiary to the vital question presented, whether the superior courts of this State as courts of equity, or the judges thereof, were invested in 1871 with either the inherent or statutory power to decree or order the sale of infants’ legal estates in real property for reinvestment.
4. The origin of the inherent jurisdiction of equity over the persons and estates of infants, which was for a long period in*651volved in doubt and dispute, was finally rested upon tbe principle that the King was the protector or parens patrise of all infants in his kingdom, and that he delegated this right to his court in chancery. Story’s Eq. Jur. §§1328-1334; Pomeroy’s Eq. Jur. § 1304. But the court, like the King, exercised only the care of infants and their property, and did not assume to itself the actual guardianship of them, though often characterized as their general guardian. Daniell’s Ch. Pr. (6th. Am. ed.) 1347; 1 Maddox’s Ch. Pr. 331; Macpherson on Infants, 103; 9 Enc. PI. & Pr. 890, and the cases cited in the notes thereto. The extent of this jurisdiction, in addition to appointing guardians for infants having no testamentary guardians, and afterwards governing their custody, maintenance, and marriage, related to the management of their property, which, as hereinafter shown, has always been well defined and limited: — The protection and preservation of their property against their parents, guardians, and other persons: Butler v. Freeman, Ambler, 302; Adams’s Equity (7th Am. ed.) 281; Pomeroy’s Eq. Jur. § 78; Daniell’s Ch. Pr. (6th Am. ed.) 1362. The enforcement and protection of trusts in their favor: Losey v. Stanley, 147 N. Y. 570. The granting of authority to their guardians to make leases of their lands until their majority: Daniell’s Ch. Pr. (6th Am. ed.) 1364; Macpherson on Infants, m. p. 311. The sale of their equitable estates: 10 Enc. PI. & Pr. 737, and cases cited in note 3; 'Woerner’s Am. Law of Guardianship, 247 ; upon the reason, probably, that trusts are within the exclusive jurisdiction of equity, and, in a court of' equity, “are invariably applied to property (and especially real property), and not to persons.” Story’s Eq. Jur. §1330. And the sale of their legal estates over which the court has acquired jurisdiction by litigation or proceedings under some one of its many heads of ordinary jurisdiction, such as in cases for receiverships (Walker v. Morris, 14 Ga. 325-327); partition (Adams’ Equity, m. p. 285; 10 Enc. Pl. & Pr. 734, note); injunctions against actions of ejectment, and other cases where the title and right of property comes before a court of equity for adjudication (Groce v. Fields, 13 Ga. 24; Losey v. Stanley, 147 N. Y. 570, 571); relief when it is impossible to carry out-*652the provisions of a will (Sharp v. Findley, 59 Ga. 730; Southern Marble Co. v. Stegall, 90 Ga. 237); payment of mortgages or other debts of their testators or intestates (Daniell’s Ch. Pr. (6th. Am. ed.) 1345; Macpherson on Infants, m. pp. 412, 413; 10 Enc. Pl. & Pr. 734, note; Woerner’s Am. Law of Guardianship, 227); payment of legacies charged on lands devised to them (Powell v. Powell, 6 Madd. Ch. 53; Dean v. Central Cotton Press Co., 64 Ga. 671, 672); payment of estate debts upon the application of the executor and devisees to protect the rest of the estate from imminent 'sale by clamorous creditors (McGowan v. Lufburrow, 82 Ga. 523; Blake v. Black, 84 Ga. 399, 400); and the adjustment of the rights of vendor and infant vendee, where the latter buys arid acquires possession of the property and afterwards disaffirms the contract by a plea of infancy when sued for the balance of the purchase-money (Strain v. Wright, 7 Ga. 568; Thomason v. Phillips, 73 Ga.140). For these purposes the jurisdiction of equity is plenary and unquestioned; and when petitions or suits by bills thus involving the persons and estates of infants are brought, to which the infants are parties, either plaintiffs or defendants, they become wards of court or in chancery. Butler v. Freeman, Ambler, 302, 303; Williamson v. Berry, 8 How. (U. S.) 555; Sharp v. Findley, 71 Ga. 654; McGowan v. Lufburrow, 82 Ga. 523; Pomeroy’s Eq. -Jur. §1305. In this character they are entitled to the special protection of the court, and with which duty the court is thenceforth charged, on the principle, as stated by Lord Eldon in the case of Wellesley v. Duke of Beaufort, 2 Russ. 20, “that the law should place somewhere the care of individuals who can not take care of themselves.” This is no more than is enjoined upon the courts of ordinary in this State, which are also called the protectors and guardians of infants within their jurisdiction. Deyton v. Bell, 81 Ga. 382. The court does not thereby acquire jurisdiction over the wards for all purposes (Butler v. Freeman, Ambler, 302, and the authorities cited infra on the inherent jurisdiction of equity to decree the sale of infants’ legal estates in real property) ; and it would be idle to say that the mere naming of infants as sole defendants in a bill or respondents in a petition *653would give the court jurisdiction to authorize a sale even of their trust property; for in such cases they are put upon the same footing as adults as to service or notice before a decree or order can be made affecting them or their estates. Daniel l’s Ch. Pr. 444, 1606, 1607; Hill v. Printup, 48 Ga. 453, 454. Indeed as early as 1697, it was the boast of Lord Ch. King that in “chancery, where the interest of infants is so far regarded and taken care of, no decree shall be made against an infant, without having a day given him to show cause after he comes of age.” Lord Falkland v. Bertie, 2 Vern. 342. And the rule thus announced by this learned chancellor was adhered to by the chancery courts of England, even in granting decrees for the sale of infants’ estates acquired by descent and devise, when suit was pending in equity to sell the property for payment of their testator’s or intestate’s debts (Blatch v. Wilder, 1 Atk. 420; Uvedale v. Uvedale, 3 Ibid. 117; Danieil’s Ch. Pr. (6th. Am. ed.) 164-168), until it was changed as to such decrees by the statute of 1 Will. 4, ch. 47, s. 11. Macpherson on Infants, m. pp. 412, 413, 423, 427.
The inherent jurisdiction of equity to decree a sale of the legal estates of infants in real property for reinvestment, by bill or petition for that purpose, has been questioned and denied from the earliest times to now. In England, where the chancery jurisdiction for the protection of infants and their estates originated and is continued, the courts of chancery have uniformly denied this first-mentioned and greater power without the aid of an act of parliament. Adams’ Equity (7th Am. ed.), 284, 285; 1 Spence’s Equity, 613; Daniell’s Ch. Pr. (6th Am. ed.) 168, 169; 9 Am. & Eng. Enc. L. 126; 10 Enc. Pl. & Pr. 734, 736, and notes; Schouler’s Dom. Rel. §§ 356, 357; Woerner’s Am. Law of Guardianship, 225, 226. In Taylor v. Phillips, 2 Ves. Sr. 23, decided in the year 1750, Lord Ch. Hardwicke said: “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, as in the composition of debts, 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.” And in Russel v. Russel, 1 Molloy, *654525, decided in the year 1827, Lord. Ch. Hart said: “I have no authority to bind an infant’s legal real estate. That was decided long ago by Lord Hardwicke in Taylor vs. Phillips. The chancellor has never since attempted to deal with the legal inheritance of infants, without the aid of an act of parliament.” These two cases, which are most frequently cited, are but an exemplification of the rule maintained in many other English chancery cases, among which are Simson v. Jones, 2 Russ. & M. 374, 377, and Calvert v. Godfrey, 6 Beav. 97, 109. In Simson v. Jones, the master of the rolls says: “ This court has no authority to give an infant a power of alienation, even for her own benefit.” And, “By the rules of law, she has no power of disposition during her minority; and this court has, I think, no jurisdiction to give her such power, and I am not aware that any case can be found in which the court has attempted to exercise such a jurisdiction.” And in Calvert v. Godfrey, Lord Langdale, M. R., distinctly denied the inherent jurisdiction of equity to order the sale of an infant’s legal estate merely because it was beneficial to the infant, when no suit was pending by any person who had a right to call on the court to sell the estate for the payment of a debt.
The English rule as above announced has been adopted and followed by a decided weight of authority, both judicial and elementary, in this country. In addition to the many American cases cited in 10 Enc. Pl. & Pr. 736, see Price v. Winters, 15 Fla. 101; Onderdonk v. Mott, 34 Barb. 106; Dodge v. Stevens, 105 N. Y. 589; Bent v. Maxwell, L. G. & Ry. Co. (N. M.), 3 Pac. Rep. 721, 733, 734; Hoback v. Miller (W. Va.), 29 S. E. Rep. 1014 (2), 1015; Perin v. McGibben, 53 Fed. Rep. 86 (6), 96, 3 C. C. A. 443, 6 U. S. App. 648; Stansbury v. Inglehart, 20 D. C. 134, 152, 154; and the following additional American text-books: Barton’s Ch. Pr. § 170; Bispham’s Eq. § 549; Pomeroy’s Eq. Jur. § 1309; Perry on Trusts § 610; Tyler on Infancy and Coverture, § 193, p. 296; 3 Wait’s Actions and Defenses, 555. The case of Anderson v. Mather, 44 N. Y. 260, which was an application for the sale of an infant’s equitable estate, shows the distinction which exists in the jurisdiction of a court of equity to decree a sale of the *655•equitable and legal estates of infants. The court says: “ The power exercised by the court of chancery as to the sale of the •estates of infants of an equitable nature is inherent and not derived from statutory authority. The power conferred by statute relates to lands of which an infant is seized, and not to diis equitable estates.” And in the case of Losey v. Stanley, 147 N. Y. 569-571, the trustee’s estate, as the court held, only ■extended over the estate of the life cestui quo trústent, and the remainder, which belonged to infants, was a vested legal estate. Upon the application of the trustee, the- lower court, which possessed equity powers, appointed a guardian ad litem for the infant remaindermen, and afterwards authorized the trustee to sell or mortgage the entire property, equitable and legal. Chief Justice Andrews rendered the opinion of the Court of Appeals, which was unanimous, reversing the action of the court below so far as it affected the legal estate of the infant remaindermen. After showing the origin and extent of the inherent jurisdiction of equity over the legal estates of infants, he said: “The doctrine.has been frequently declared in this State that a court of equity has no inherent power to direct the sale or mortgage of the real property of infants, and that its power in this respect is purely statutory. (Rogers v. Dill, 6 Hill, 415; Baker v. Lorillard, 4 N. Y. 257; Forman v. Marsh, 11 Id. 544; Horton v. McCoy, 47 Id. 26; Jenkins v. ' Falvey, 73 Id. 355, 361.) The obiter remarks of Ch. Kent on the subject in Matter of Salisbury (3 Jo. Ch. 348), and in Hedger v. Ricker (5 Jo. Ch. 163), are contrary to the general current of authority. The text-books are explicit in stating the modern doctrine on the subject. (Pom. Eq. Jur. §1309; Bispham’s Eq. § 549.) The question of the inherent power of a court of equity to order a sale of an infant’s real property, upon the theory of a supposed benefit to him, is quite distinct from its acknowledged power in the enforcement and protection of trusts, and from the power of courts in the exercise of their ordinary jurisdiction to establish or enforce rights of property between parties to a litigation, whether infants or adults.”
A comparison of p. 281 with pp. 284 and 285 of Adams’ Equity, of §§541-548 with § 549 of Bispham’s Equity, and of *656§§1303-1307 with §§1308 and 1309 of Pomeroy’s Eq. Jur., will alone show that the protective powers and inherent jurisdiction of chancery over the persons and estates of infants and making them wards of court for these purposes is one thing, and entirely distinct from the alleged inherent jurisdiction of equity to decree a sale of an infant’s legal estate in real property for reinvestment. And it may he added that the rule thus announced as to infants’ legal estates in realty is also applicable as to their legal estates in personalty in this State. Any case that might be cited showing that a court of equity, either in England or in this country, has upheld the private sale alone of personal property made by a guardian, upon a supposed benefit to the infant ward, would not be applicable-in this State, because, apart from other reasons, the primary reason upon which it would have to be grounded is that in England and in many of the States in this country, guardians, by virtue of their office, have a power of sale when fairly and reasonably made, over the personal estate of their wards (9 Enc. of Pl. & Pr. 921; Woerner’s Am. Law of Guardianship, 179); whereas, in this State, this common-law power is restrained and the mode of sale pointed out by statute. Therefore, in this State, personalty of wards, as to sales, is placed upon the same footing as realty, and guardians here have no power, by virtue of their office, to sell either class of property for reinvestment, or a court of equity, in this State, by its inherent jurisdiction, to uphold such a sale and if it can not sustain such sales in the end, it can not authorize them in' the beginning. There is nothing in 6 Am. & Eng. Enc. L. 723 (12), 10 Enc. PI. & Pr. 588, and 10 Am. & Eng. Enc. L. 692-3, which are cited in behalf of the defendant in error, that can be said to conflict with the above ruling or stand against the mass of authorities sustaining it. The first citation merely refers to the origin of the jurisdiction of equity for the protection of infants, which is now admitted by all courts and text-writers, and not to the sales of their property. The second citation deals with the ordinary jurisdiction of equity in protecting infants and their estates, while the inherent jurisdiction of equity to sell an infant’s legal *657-estate for reinvestment is treated in the same work on pages 733 to 737, inclusive. And the text of the third citation is based on the case of Pace v. Pace, 19 Fla. 438, which is a case brought by an infant ward to have his property protected and preserved from the illegal acts of the guardian, and has no connection with the inherent jurisdiction of equity to decree a sale of an infant’s legal estate in real property for reinvestment, which jurisdiction the Supreme Court of Florida denied in the case of Price v. Winter, 15 Fla. 101.
All the conflict and confusion on this subject has been caused by a few text-writers and courts in this country. Some have erroneously ascribed to the English courts of chancery the exercise of a principle which never existed, as that said courts would convert the nature of an infant’s estate from personalty into realty and from realty into personalty whenever such change was for the infant’s benefit, and applying this alleged principle of absolute conversion to sales of infants’ lands. ' Ch. Kent so stated and applied this doctrine in his Commentaries (pp. 242, 243), and by dictum in the Matter of Salisbury, 3 Johns. Ch. 348, and Hedges v. Ricker, 5 Johns. Ch. 163, on the authority of the cases of the Earl of Winchelsea v. Norcliffe, 1 Vern. 435, and Inwood v. Twyne, Ambler, 417. The case in Vernon merely relates to the investment of money in land by the trustee of an infant, subject to the latter ratifying the investment when he became of legal age, and the Lord Chancellor stated, on pp. 436 and 437, that if the trustee had applied to the court for a decree to invest this equitable fund it would have been allowed sub modo. And the case in Ambler, which cites the one in Vernon, was confined to allowing the money of an infant, who was entitled in remainder to a jointure in land under marriage articles, to be invested in the life-estate of such jointure; and the purchase was regarded-as land, aside from the purchase being merged with the infant’s existing remainder interest in the land, (1) because it was bought upon the application of the infant, who was of year» of discretion; and (2) because the infant ratified the purchase after reaching the age of twenty-one. Macpherson, in his excellent treatise on Infants, m. p. 283, speaking of this, last-' *658mentioned case, says: “His lordship [Lord Northington] used expressions which seem to claim for the court the power of making an absolute and unqualified conversion of an infant’s property; but it has been already seen that the best authorities do not sanction this view.” In the case of Lord Falkland v. Bertie, 2 Vern. 342, Lord Ch. King said: “This court never pretended to change the nature of infants’ estates,” which is also declared in Fonblanque’s Equity, p. 88. Moreover, this principle of conversion was never applied in England to cases of sales, which I will explain in the next,paragraph, and especially of infants’ lands, which I have already discussed in extenso. And in the recent case of Losey v. Stanley, 147 N. Y. 570, hereinbefore cited, the Court of Appeals of that State unanimously disapproved the doctrine thus announced by Ch. Kent, as being against the general current of authority.
Others repudiate the above-alleged principle, and assert, though also in error, that the English rule against the sale of an infant’s real estate for reinvestment is based on decisions of the English chancery courts prohibiting the conversion of personalty into realty and realty into personalty, on the grounds (1) that the conversion of personalty, if permitted, would deprive the infant of his testamentary power of disposition over such property, as the law existed prior to the new wills act of 1 Viet. c. 26; and (2) that personalty and realty, in England, are distributed and descend, respectively, in different channels. 10 Enc. of PI. & Pr. 737; Woerner on Am. Law of Guardianship, 225. The' principle of conversion, in the sense here used, as shown by the English authorities, is confined in connection with personalty to the investments of money by guardians and trustees in lands, or in paying off incumbrances and debts for repairs on infants’ lands, and in connection with realty when the guardian or trustee has felled timber on or taken minerals from the lands of infants. See Macpherson on Infants, m. pp. 280 to 303, inclusive, and 306-308, where the whole subject is clearly stated with ample citations; also note in 10 Enc. of PI. & Pr. 734. And. when the conversions were thus made, they were allowed only to the extent mentioned, with the proviso, that the land purchased shall be considered, during the in*659fant’s minority, as constructively personal (Adams’ Equity, 285), and the felled timber, or its proceeds, as real property (Story’s Eq. Jur. §1357), in order to fall within the two reasons above mentioned as to testamentary disposition and distribution and descent. And there is nothing to the contrary in the section of Story’s Eq. Jur. just cited, when the text is read in connection with the authorities ' cited in the notes thereto, in not one of which is anything said or intimated about a sale of • either the personal or real property (viz., lands) of infants. This principle of conversion, according to the authorities cited, was not applied in England to sales of property by guardians. If we so apply it, we will see that.the two reasons specified above against the conversion of infants’ property exerted no influence whatever upon the English chancery courts in the denial of their inherent jurisdiction to decree a sale of infants’ legal •estates in real property merely for the infants’ benefit, as for reinvestment. The first reason stated against the conversion of infants’ personalty into realty — strictly speaking, of money into land — that tho infant would be deprived of his testamentary power of disposition over the former before the statute •of 1 Viet. c. 26, could not have influenced the court in preventing tho conversion of realty into personalty. And the second reason — the difference in the distribution and descent of personal and real property — w^ouldseem applicable; but that even this reason exerted no influence is shown by the fact that the chancery courts of England never allowed the sale of an infant’s legal estate in land for reinvestment in land. On the contrary, as hereinbefore shown, they uniformly denied this power without the aid of a statute; and statutes conferring this jurisdiction in particular cases were not enacted, in England until late in the present century. See Macpherson on Infants, m. p. 318; Daniells’ Ch. Pr. (6th Am. ed.) 169, note, and 1873, 1874.
Again, as in Woerner on Am. Law of Guardianship, 227, cases upholding the sale of equitable estates of infants, where the legal title was in trustees, are cited together with some cases maintaining the court’s inherent jurisdiction to decree a .sale of the legal estates of infants in real property, without *660drawing any distinction between them. Furthermore, in some, cases which involve only the question of the court’s power to decree a sale for reinvestment of trust estates in which infants, are among the beneficiaries and the legal title is in trustees, the-judges, not content with the citation of apposite cases, enter into unnecessary arguments, based on false reasons, if not inapplicable authority, to show that the jurisdiction extends also-over the legal estates of infants. This is notably true of the-opinion of Chief Justice Bailey in the case of Hale v. Hale, 146 Ill. 227, where he states a wrong reason for the rulings of the English chancery courts, cites the case of Huger v. Huger, 3-Des. (S. C.) 18,' 21, which permitted a sale of an infant’s land to pay off a charge against him under his father’s will to equalize in value his father’s real estate between him and liis. brother, and gives prominence to the overruled dictum of Ch. Kent in Matter of Salisbury, 3 Johns. Ch. 347. And still others (as, for instance, 10 Enc. PI. & Pr. 735) even cite cases-from States which have conferred this jurisdiction upon courts of equity by statute, to support the inherent jurisdiction of equity to sell the legal estates of infants in real property for reinvestment. Cases from Maryland are cited in this respect;; whereas, this inherent jurisdiction of equity was early denied in that State in.Williams’ case, 3 Bland Ch. 186; and the case of Davis v. Helbig, 27 Md. 452, 92 Am. Dec. 646, cites the case of Dorsey v. Gilbert, 11 Gill & J. 87, to support the constitutionality of the special acts passed by the legislature of that State for the sale of infants’ realty, and show's that the “increasing nécessity of these special acts caused the legislature to* enact the statutes of 1816, chapter 139, and 1818, chapter 133,” •which “conferred general power on the courts to decree sales, of the real estates of infants, provided they were satisfied it. ^ would be for the interest and benefit of the minor.”
4 (a). But whatever may be regarded as the true rule in equity ’on this subject, it has become of little practical use in ' ’thii-S'country, since statutes have been enacted in nearly all the-"States hegulatihg the sale of infants’ legal estates. 10 Enc. Pldg. & Fr; 737; Pomeroy’s Equity Jur. §§78, 1309; Perry opn Trusts; § 610; Tyler on Infancy and Cov. 296; Woerner *661on Am. Law of Guardianship, 227. In this country the States, through their legislatures, possess the same power that the King in England possessed as the protector or parens patriae ■of infants, consistent with their constitutional limitations: 10 Enc. Pl. & Pr. 738; Losey v. Stanley, 147 N. Y. 571; Davis v. Helbig, 27 Md. 452, 92 Am. Dec. 649; or that Parliament had in providing by public or private acts for the conversion and ■sales of infants’ legal estates in real property. At first many •of the States passed special- statutes or private bills for the sale •of such estates of infants, which of itself negatives the inherent jurisdiction of equity in this respect. 10 Enc. Pl. & Pr. 738; Woerner on Am. Law of Guardianship, 228; Perry on Trusts, § 610, p. 202, and note 1. These were soon followed by general statutes which conferred the jurisdiction either upon courts -of equity, law courts of general jurisdiction, or courts of ordinary or probate. 10 Enc. Pl. & Pr. 739; Woerner on Am. Law of Guardianship, 232, 233; Perry on Trusts, §610, p. 201. In a few States different courts have concurrent or divided jurisdiction to order a sale.. Ibid. In most of the States the jurisdiction by statute is conferred upon the courts of ordinary or .probate. Ibid. Georgia is one of these States; and the court •of ordinary in this State is a constitutional court of record, whose jurisdiction is original and exclusive (except by appeal) in many matters, including the appointment of guardians, the maintenance of infants, and the sales of their estates, and is much broader than the jurisdiction conferred on similar courts in other States. Tucker v. Harris, 13 Ga. 8; Civil Code, §§4232, 2541, 2542, 2547. By acts passed in 1764, 1792, and 1799, the care of orphans (which term includes minor children whose parents are alive: Ragland v. Justices, 10 Ga. 65 (3), 70-73) was committed to the court of ordinary. Cobb’s Dig. 301, 306, 311. And by the act of December 22, 1823, all infants who have acquired property by descent, -devise, gift, or purchase, whose parents are in life, are considered orphans, so as to authorize the courts of ordinary to withhold the -property from their parent, or natural guardian, until ample bond is given, or, in lieu thereof, to appoint a general guardian for such infants. Cobb’s Dig. 322; Ragland v. Justices 10 Ga. 72. *662The sale of infants’ legal estates in real property acquired by descent or devise is, ordinarily, effected through sales under Orders of the court of ordinary, in pursuance of the acts of December 18, 1816, and December 23, 1826. Cobb’s Dig. 319, 323; Knapp v. Harris, 60 Ga. 403. And the sale of infants’ legal estates in real property acquired otherwise than by descent or devise was regulated by the act of December 21, 1827 (Cobb’s Dig. p. 325). This statute, so far as is material, reads as follows: “Whereas, . . no power is given to said courts [the inferior courts of the several counties of this State when sitting for ordinary purposes, being the courts of ordinary] to order the sale of any real estate belonging to orphans other than such as is acquired by them from their testator or intestate', by reason of which frequent and manifest injury is sustained by orphans . . holding real estate other than such as is acquired by descent; for remedy whereof be it enacted, that from and after the passing of this act, the justices of the inferior courts of the several counties in this State, when sitting for ordinary purposes, shall be authorized to order a sale of any part, or the whole of the real estate of any orphan or orphans, . . upon application of the . . guardian or guardians, where it is-fully and plainly made to appear that the same will be for the benefit of such orphan or orphans, . . under the same rules and restrictions as are by law pointed out for the sale of real estates of testators or intestates.” This act was construed in the case of Crawford v. Broomhead, 97 Ga. 614, in a unanimous opinion, which was delivered by the writer, wherein it was held, that “this act, construed with those of which it is amendatory, clearly gave to the courts of ordinary the power to order the sale of the real estate of orphans, whenever it should be made to appear to the court that the sale would be for the benefit of' the orphan”; and that this jurisdiction to sell such estates for reinvestment was exclusive in the courts of ordinary, until it was taken from them and conferred upon the judges of the superior courts in term or vacation, by the act of November 11, 1889. (Civil Code, § §2545, 2546.)
In a word, prior to the act of 1889, the legal estates of infants could be sold for reinvestment only through a guardian *663and by order of the courts of ordinary. And see the case of Wells v. Chaffin, 60 Ga. 677, decided in 1878, which holds that “ A sale of realty belonging to minors by their guardian, without an order from the court of ordinary, is not binding on them.” Therefore, in the case at bar, it was only necessary in 1871 for the natural guardian of the plaintiffs in error to have filed a bond and applied for an order from the. court of ordinary to sell their legal vested estate in' remainder, under the restrictions governing the mode of sale of intestate’s real estate (Code of 1873, §§1803, 1811, 1828, 2559; Crawford v. Broomhead, supra), which was less strict than the provisions of the above act of 1889, which now governs the sale of infants’ legal estates for reinvestment, upon application of their guardians to the Judges of the superior courts in term or at chambers.
5. Having reached the conclusion that the order of sale granted in this>case in 1871 was not within the inherent jurisdiction of a court of equity over the estate in remainder of the plaintiffs in error, but'that, as between the two courts, the »proper court to make the order was the court of ordinary, upon the application of a guardian for the remaindermen, the question now arises, whether such power was at that time conferred, either expressly or impliedly, by any statutory or code authority, upon the judges of the superior courts, acting in term or vacation. This is especially pertinent, as the order of sale in this case was applied for by a summary petition under the statutory jurisdiction of equity.' Sections 4863 and 4864 of the Civil Code (or §§4221 and 4222 of the Codes of 1873 and 1882), upon which the defendant in error lays stress in support of the order, read as follows: “All proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or estates of wards of chancery, may be presented to the court by petition only, and such other proceedings be had as the necessity of each cause shall deniand.” “A court of equity is always open, and hence the judges in vacation and at chambers may receive and act on such petitions.” To clearly ascertain the meaning of the “protective powers of chancery over the estates of wards of chancery,” as used in section 4863, it is necessary, in the first place, to refer to the inherent juris*664diction of equity in this respect. From what has already been said as to the extent of the inherent jurisdiction of equity for the protection of infants and their estates and making them wards of court for these purposes, and the inherent jurisdiction of equity to decree a sale of infants’ legal estates in real property for reinvestment, which are two entirely distinct subjects, one of which exists and the other does not, there can be but one logical answer, and that is, that there is nothing in these sections of the code which authorizes a judge of the superior court, in term or at chambers, on a substantive petition, to order the sale of infants’ legal estates in real property for reinvestment.
The cases of Sharp v. Findley, 71 Ga. 654, and McGowan v. Lafburrow, 82 Ga. 523, which are relied on by the defendant in error to support the order of sale in this case under § 4863 of the Civil Code, are not in conflict with the views we entertain and do not apply to the facts in the case at bar. The case of Sharp v. Findley, in which the executor and all the devisees joined in the petition, was grounded upon the impossibility of carrying out the provisions of a will. In such cases, equity would entertain inherent jurisdiction by bill and decree a sale of the property to protect the beneficiaries under its ordinary jurisdiction over trusts (Sharp v. Findley, 59 Ga. 730; Southern Marble Co. v. Stegall, 90 Ga. 237); and the judge of the superior court is expressly given the same jurisdiction by statute. Codes 1873 and 1882, § 4214 (Civil Code, § 4855). Hence it was held that this statute in connection with § 4221 of the Codes of 1873 and 1882 (Civil Code, § 4863) would authorize the judge at chambers to pass the order of sale in that case. The case of McGowan v. Lafburrow, in which the petition was also presented by the executrix and all the devisees, was for the sale of a part of the testator’s estate for the immediate payment of trust debts, in order to protect the rest of the estate from clamorous creditors. As this was to protect an estate to which the executrix held the legal title in trust for such purposes, equity would have entertained jurisdiction for this purpose under its ordinary jurisdiction over trusts; and hence, too, why the sale in that case was also held to be legal under the section of the code last cited; and it was absolutely immaterial,- so far as the jurisdic*665tion was concerned, whether the order was signed by the judge in term or at chambers, because his power in either case was the .same. In Blake v. Black, 84 Ga. 399, 400, Chief Justice Bleckley classes the cases of Sharp v. Findley and McGowan v. Lufburrow as cases involving the protection of equity over trusts; and the writer, who delivered the opinion in the case of McGowan v. Luf burrow, so designates that case and distinguishes it from the right to sell the legal estates of infants for reinvestment, in the case of Taylor v. Kemp, 86 Ga. 185. And the further con-^ tention in behalf of the defendant in error, that when Justice Trippe remarked in his opinion in the case of Milledge v. Bryan, 49 Ga. 397, that the order in that case was passed by the judge below several years before the code went into operation he doubtless had in mind the change made by the above section of the code, is also error. The subject-matter of the case of Milledge v. Bryan was whether a passive trust.for infants before the code conveyed to them the legal estate under the operation of the statute of uses, there being no dispute, if it did, that the judge had no power to order a sale of such estate. He decided in the affirmative, in accordance with all authority. Consequently, his remark no doubt had reference to the code making a passive trust for minors an executory trust during their minority, which was not the law before the code, and hence that if the order of sale in Milledge v. Bryan had been made since the code it would have been legal because in the exercise of a jurisdiction over the trust estate of minors. See Askew v. Patterson, 53 Ga. 213, 214, where Milledge v. Bryan is distinguished on this point.
The sections of the code now being considered have been frequently construed by this court; but the court has never gone to the extent assumed in behalf of the defendant in error. In Iverson v. Saulsbury, 65 Ga. 729, Justice Jackson, delivering the opinion of the court, said that they, with the two succeeding sections, forming one chapter, stand together. To quote his words: “These four sections are embodied in chapter sixth, title twenty-fifth, and part third of the Code [1873], and stand together. They appear to vest in the chancellor at chambers full power over trust estates in respect to the removal of trustees, the sale of'trust property, and the investment of *666trust money. In the exercise of these great powers, chancellors should be cautious and see that the case is clearly made out, and that their wards are protected and their estates are preserved and their rights protected, just as in open court and before a jury it would be their, duty to see that the same rights-are protected.” Chief Justice Bleckley’s opinion in Blake v. Black, 84 Ga. 392, 399, 400, also shows that they have relation to trusts. And in Harvey v. Cubbedge, 75 Ga. 794, Justice Blandford, delivering the opinion of the court, said they were-codified from the act of February 20, 1854, which authorizes-judges of the superior courts in term or at chambers to pass upon matters of trust by petition. Of course, it does not necessarily follow from this that the judge in term or at chambers is-restrained from passing on proper petitions to authorize a sale of the legal estates of infants when a court of equity has obtained control of the property in a pending cause within its. jurisdiction, or when they can exercise the power in the manner hereinbefore mentioned under some one of the ordinary heads of the court’s inherent jurisdiction. But the case at bar does not fall within this class of cases. Among the subjects, covering the “protective powers of chancery over trust estates, or .the estates of wards of chancery,” as used in section 4863 of the Civil Code, and determined by this court, is the power, upon petition, to appoint trustees to fill a vacancy: White v. McKeon, 92 Ga. 344; to order the sale of a part of the trust property to relieve the rest from an indebtedness on all: Iverson v. Saulsbury, 65 Ga. 724 (5), 728, 729; to order the mortgage of trust property to protect and jneserve the corpus: Iverson v. Saulsbury, 68 Ga. 801, per Jackson, J., followed in Weems v. Coker, 70 Ga. 746, Bolles v. Munnerlyn, 83 Ga. 727, Pease v. Wagnon, 93 Ga. 363, and Wagnon v. Pease, 104 Ga. 417; to-order the sale in whole or in part of property of adults and minors acquired by devise where the legal title remains in the executors, when it is impossible to carry out the trust provisions of a will (Sharp v. Findley, 71 Ga. 654, Blake v. Black, 84 Ga. 392, 399, 400, and Southern Marble. Co. v. Stegall, 90 Ga. 237), or when it is necessary for the payment of estate debts and legacies: McGowan v. Lufburrow, 82 Ga. 523, and Blake *667v. Black, supra; and to protect a ward of chancery by compelling a trustee to comply with a prior order of court to pay over money for the support of the ward arising out of the latter’s trust property: Obear v. Little, 79 Ga. 386. And among other powers by proceedings ex parte and upon petition, as shown by the cross-references to other parts of the code made by the codifiers in the margin to section 4863, is the appointment and removal of trustees, §3164; the sale of trust property, §3172; the investment of trust funds in stocks in which a trustee is not authorized by statute to invest in his own discretion, §3180; and the passing of interlocutory orders in equitable suits, § 4847, which may include the setting aside of a sum of money out of a fund involved in the litigation for the support of the minor parties. So that there is no reason or authority upon which to base the claim of the defendant in error, that sections 4863 and 4864 of the Civil Code authorize the judges of the superior courts in term or at chambers to order a sale of the legal estates of infants in real property for reinvestment. And when this power of sale is given by -statute, it has been held to be beyond the-jurisdiction of the court to authorize an exchange of the property for other property (Moran v. James, 47 N. Y. Supp. 486), and especially, as was asked for in the petition and granted in the order in the case at bar, for stock in a corporation. Perin v. McGibben, 53 Fed. Rep. 96, 97. And any authority conferred to sell the property for the maintenance of the infant would not be applicable, because that would be an extinguishrment and not the protection of the corpus of the estate.
The only remaining sections of the code conferring power upon the judges of the superior courts in term or at chambers to order the sale of property in which infants may be interested (aside from the sale of homestead property under § 2847 of the Civil Code, and the sale of infants’ property upon application of their guardian under the act of November 11, 1889) are §§3172 and 4865 of the Civil Code (or §§2327 and 4223 of the Codes-of 1873 and 1882). These sections relate to the sale of trust property, and to none other; and it was doubtless under these sections that the petition to sell the property in dispute was made, because the trustee applied for the order as trus*668tee for the mother and children. It is unnecessary to confound the unambiguous statutory jurisdiction upon summary petition under these sections with the inherent jurisdiction by .suit in a court of equity. In such cases the court or judge, exercising jurisdiction by statute, is restricted by the power conferred by the statute. Williamson v. Berry, 8 How. (U. S.) 537; Woerner on Am. Law of Guardianship, 232, 233. Under these sections, whatever the judge could do in term he could do at chambers, and whatever he could not do at chambers he could not do in term. In the case of Losey v. Stanley, 147 N. Y. 571, 572, it was unanimously decided that the lower court, which exercised general equity powers, and which was authorized by statute to order the sale of trust property upon summary petition, had no jurisdiction whatever upon such a petition to sell the legal estate in remainder belonging to infants or to appoint a guardian ad litem to effect such a sale. And to the same effect is the case of Walker v. Pope, 101 Ga. 665, in which Justice Fish, who delivered the opinion of the court, said: “The principles of law governing this case are well settled and familiar, and will be readily gathered from the head-notes, read in connection with the reporter’s statement of the facts.” On pages 667 and 668 the reporter’s statement shows that the executor and alleged trustee brought his petition to the superior court, which was joined and concurred in by the life-tenant, an adult male, praying for a sale of the property for reinvestment in a farm, upon substantially the same allegations as set forth in the petition in the case at bar; that a guardian ad litem was appointed for the named children, who were entitled to a legal estate in remainder in the property; that the judge of the superior court granted the order to sell; and that a sale was made under the order. The headnotes show that the only rea'sons the plaintiffs (the children) failed to recover in that case were, first, that those who were capable of understanding their rights ratified in writing the said sale of the property and the disposition of the purchase-money, without moving to disaffirm the same within a reasonable time after reaching their majority; and, secondly, that the youngest child, who also signed the ratification paper, but who was too young to comprehend its *669purport, although held entitled to recover within seven years from the death of the life-tenant in a several action, could not recover in a joint action with the others whose title had been tolled before the commencement of the suit. In this court, as the judges have almost invariably passed the orders at chambers, the question has often arisen as to the power of a judge-of the superior court at chambers to order a sale of the legal estates of infants for reinvestment under the sections now being considered, or by statute generally before the act of November 11, 1889, and has as often been decided in the negative. See Pughsley v. Pughsley, 75 Ga. 95; Rogers v. Pace, 75 Ga. 436; Taylor v. Kemp, 86 Ga. 185; McDonald v. McCall, 91 Ga. 305; Fleming v. Hughes, 99 Ga. 450. These cases are directly in point, and are unquestionably sound in their conclusions. They establish a principle as firmly as any principle can be established. There is not one decision of this court adverse to them, and they therefore form a rule of property in this State which has existed for many years. When these decisions thus denied this power to the judges of the superior-courts at chambers, they also, in legal effect, denied the same power to the said judges in term when acting under the statutory jurisdiction by summary petition, because each possesses the same power — one no more nor less than the other. It would therefore be anomalous to hold that this statutory jurisdiction gives the judge in term the power to sell the legal estates of infants for reinvestment, and confines the judge at chambers to a sale of trust estates, especially when a court of equity is without the inherent jurisdiction, as we have declared, to order the sale of an infant’s legal estate in real property for reinvestment, except in the instances we have specified; and there can be no doubt that in making these decisions this court had in mind the provisions of § 4863 of the Civil Code, as well as of § 4865„which have stood together in the Cpde for the last thirty-six years. That such is true is shown by the case of Taylor v. Kemp, 86 Ga. 185, where the decision in the case of McGowan v. Lafburrow, which was made under the provisions of § 4863 principally, was upheld for the purposes of that case, but was denied and distinguished as to the facts in Taylor v. *670Kemp; and also by the ease of Fleming v. Hughes, which cites the case of Taylor v. Kemp, with others, and denies the jurisdiction without relying upon any special section of the code.
There is nothing in the case of the East Rome Town Co. v. Cothran, 81 Ga. 366, 367, when properly read and considered, that can conflict with the cases above cited, which exist in an unbroken line. On p. 366 Chief Justice Bleckley held that the original order to sell in that case could not bind the infant remaindermen, because, according to Hill v. Printup, 48 Ga. 452, infant beneficiaries in a trust estate must be made parties. On p. 367, in connection with the attempted confirmation proceedings, in which the infant remaindermen were made parties, he said: “ It is urged that this order of confirmation cured all defects in the title to Freeman, and this might be so, perhaps, had the judge not been disqualified,” and he no doubt had in his mind, at the time, what the rule would have been, in accordance with Hill v. Printup, if the infant beneficiaries in the trust estate in that case had been made parties to a confirmatory proceeding. The minors in the case of East Rome Town Co. v. Cothran, were not infant beneficiaries in a trust estate, as Chief Justice Bleckley himself held on pp. 361 to 366, inclusive; and hence if he had decided that they would have been bound by the order of confirmation, had such order been passed by a qualified judge, the ruling would have been contrary to all the cases cited above on the subject of ordering the sale of infants’ legal estates by petition under the statutory jurisdiction, and could not have stood against them.
I think the opinion of the majority of the court virtually concedes that a court of equity has no inherent power to order the sale of the legal estates of infants upon a summary petition; but it is claimed that, while this may be true, still, if the court has jurisdiction to order a sale of the trust property and the trustee applies also for an order for the sale of the legal estate, the court having acquired jurisdiction for one purpose will retain it for all, and will grant such relief as it may deem proper in the premises. In other words, it holds that a court of equity has jurisdiction, even upon summary petition, to decree and order the sale of infants’ estates for reinvestment, upon the ap*671plication of the trustee, when the infants have an equitable interest with others in the life-estate and are the sole owners of a legal estate in the remainder; on the ground that equity having acquired jurisdiction over the equitable life-estate for the purpose of a sale, that per se invests the court with the power to retain the jurisdiction to order a sale of the legal estate in remainder also. With great deference to the opinion of my associates, I think that this principle has no application to a proceeding such as this. It applies to cases of litigation where the complainant has an equitable remedy for one purpose and also a legal remedy touching the subject-matter of the litigation against the defendant, and the complainant seeks to enforce his equitable remedy, in which cases the jurisdiction of equity may be retained to grant full relief and avoid a multiplicity of suits .between the litigant parties. In a word, there must be a controversy between litigant parties before the court, to bring this principle into action or life. See Pom. Eq. Jur. §§181, 223-230, 231-242, where the whole subject is discussed, with citation to numerous authorities, including some in this State. An examination of the Georgia cases in which the principle has been applied will show that in all of them there was a controversy between the parties and that equitable and legal rights were involved therein. And the same appears to be true of the decisions of the other courts. The Court of Appeals of'New York in an unbroken line of decisions, has applied the principle that where equity has acquired jurisdiction for. one purpose it will retain it to grant full relief to the parties litigant; yet the principle is not applied in proceedings where a trustee applies -to a court of equity to sell or mortgage the life-estate and the legal estate in -remainder of infants. In fact, the denial to a court of equity of the inherent jurisdiction to order a sale of infants’ legal estates arises in many cases where such estates are in remainder after an executory trust extending over and terminating with the life-estate. The above principle, then, arises in cases of litigation under the ordinary heads of equity jurisdiction ; and, as Chief Justice Andrews pertinently said in the case of Losey v. Stanley, 147 N. Y. 560, 570, in delivering the opinion of the court, where the trustee, whose estate extended over *672the life-estate only, applied to equity to include in a sale the legal estate of. infant remaindermen, “ The question of the inherent power of a court of equity to order a sale of an infant’s real property, upon the theory of a supposed benefit to him, is-quite distinct from . . the power of courts in the exercise of their ordinary jurisdiction to establish or enforce rights of property between parties to a litigation, whether infants or adults.”
The supposed difficulty of making a sale of the trust estate for life by one court or jurisdiction and the sale of the legal estate in remainder by another is not sound, as is shown by the case of Losey v. Stanley, supra, and many others. 'The same difficulty arises when a petition is presented to a judge of the superior court at chambers, in this State, to order a sale of a trust estate for life and a legal estate in remainder. In such cases he can only order a sale of the trust estate. Rogers v. Pace, 75 Ga. 436; Fleming v. Hughes, 99 Ga. 444. AYhat greater efficacy, or sanctity, or jurisdiction, should be given to the act of the same man when he merely walks from his private chambers into the, court-room with the order and immediately signs it there? None that I can see in a case like this:
As to the distinction between the exercise, by a court of chancery, of original and inherent jurisdiction and the exercise, by the same court, of jurisdiction conferred by statute,, see Williamson v. Berry, 8 How. 536, 537, and Boswell v. Otis, 9 How. 336. These cases rule that where jurisdiction is given a court of equity by statute and a proceeding is filed thereunder, the court can not combine its original inherent jurisdiction with the statutory jurisdiction. The statutes of Georgia giving courts of equity at chambers jurisdiction to sell trust estates, those courts can not combine their original and inherent jurisdiction with that conferred by statute, so as to enable them, in chambers or on a summary petition in term time, to order the sale of legal estates.
For these reasons I can not agree to the opinion of the majority of the court on the questions above discussed.,