dissenting. The most serious question presented by the appeal here is that relating to a defect of parties. It arises under these circumstances: [Here follows the statement which has been already given.]
While it is quite true that this court cannot view with approval any appeal that is based upon an error of fact or of law in the construction of a will, when there is no fraud or circumvention, parties to a controversy, or their privies, may have made (Cuningham v. Cuningham, 20 S. C., 317; Keitt v. Andrews, 4 Rich. Eq., 349); nor will relief in such cases be afforded when a title paramount in another is alleged, when no eviction has been had (Whitworth v. Stuckey, 1 Rich. Eq., 410; Lessly v. Bowie, 27 S. C., 193); yet we cannot hesitate in our duty to interfere where, in the action under which a sale was made, and while the parties and the fuud are still in court, and a most material defect will be perpetuated, that may be cured if new parties are made. Let us make this plain. When the testator made these provisions in favor of his children, he had it in his power to restrict their enjoyment of it. This he did, when he gave it to them for and during the natural life of each one of them. This he did, also, when he provided that the share of each one of them should not be subject to their debts, contracts or disposition. Could he have used stronger words than these to declare his intention, that the first takers, after the death of his widow, should not divest themselves of such property, indirectly by debts, or directly by sale while living, or by testamentary disposition to take effect at death? We have been impressed by this language of the will. Then, if these restrictions exist, how could these life tenants by a judgment of the court convert these lands into money, and receive that money freed from the restrictions of the will? When a master of the Court of Chancery sells lands for partition amongst the owners thereof, according to their respective rights therein, he simply acts as the agents of the parties. Tunno v. Fludd, 1 McCord, 121. And if, in the progress of a cause, the court becomes acquainted with some provision of an instrument before it, to which provision accidentally parties have failed to direct its attention, such court will not hesitate to apply the proper relief.
*197In the case at bar, this defendant has contracted to pay $4,590.44 for lands, the fee simple title to which is only worth that sum, and the proceeds arising from such sale is about to be paid away to the life tenants, with no liability on their part to treat the fund as other than their absolute property; that at the death of each life tenant successively, the surviving child or children of such deceased life tenant become tenants in common with the purchaser. Under this will the child or children of deceased child or children of William Long, senior, take as purchasers and not by descent. To this property their rights, therefore, are independent of their immediate ancestors. Under our decisions they are contingent remaindermen. Faber v. Police, 10 S. C., 376; Mangum v. Piester, 16 Id., 316; Farr v. Gilreath, 23 Id., 502. Being contingent remaindermen and in esse at the time of the sale, and not being made parties to the action for a sale, they are not bound by the judgment in such cause, and are not bound by the sale thereunder. Moseley v. Hankinson, 22 S. C., 323. What, therefore, must be done? It is the high prerogative of the Court of Equity to be able to afford relief in just such circumstances, and it is a blessing to the world that such is the case.
When, as in some cases, a tract of land becomes unproductive of income to those who have a life estate therein, with a remainder over therein contingent, and such contingent remaindermen, or some of them, are in esse, the Court of Equity will act upon the land; that is, with all these parties in esse before it, the land will be sold, and the fund arising therefrom will be substituted for the land, and this fund will be preserved, so that the life tenant may receive the interest thereon during his lifetime, and at his death the fund will be turned over to the contingent remaindermen. Thus, the purchaser of the land gets a fee simple title — the life tenant the benefit of the corpus let out at interest — the contingent remaindermen the corpus on death of life tenant. This power of the court is distinctly and carefully laid down in the opinion of the court in the case of Bofil v. Fisher, 3 Eich. Eq., 1, and has been adhered to ever since. In that case it was held, that the Court of Equity has the power to sell the estate, whether vested or contingent, of *198infant remaindermen who are parties before the court, and to bar, by its decree, the rights of unborn or absent remainder-men in such cases. The court acts upon the property, and by the sale under its decree vests the fee simple title in the purchaser. The rights of all the parties in interest are transferred from the property to the fuud arising from the sale, and, so far as is practicable, are protected. To such a suit, it is sufficient if the parties holding the life estate, and all other persons in esse who have an interest and are known, are before the court as parties.
In the case at bar, it is made to appear that there are contingent remaindermen in esse and within the jurisdiction of the court. While it is true that the land has already been sold, it is a question easily settled, with all the parties before the court, whether such a sale was fair, price full, and in all other respects such an one as realized on the purchase money paid therefor a sum equal to the value of the fee simple title therein. If such be the facts, the parties who are contingent remaindermen are as well protected by being made parties afterward as they would have been if original parties to the action. But if it be made to appear hereafter in the action that the purchaser did not pay full price, the sale should be rescinded. Assuming, for we express no opinion thereon, that the sale was regular and advantageous, then the decree in the court below should be made to protect the estate in remainder. Some scheme should be reported to the court whereby the interest in the corpus of the purchase money — we mean the $4,590.44, less the costs of sale, and master’s commissions— shall be paid to the life tenants during life, and at the death of each one of such tenants the share in such corpus shall be paid over to the child or children so surviving such deceased child; but also providing such child — -a life tenant — should die childless, such share of the one so dying shall be paid to his surviving life tenants, or their children, if they be dead. Of course, it follows that appellants’ exceptions which relate to this matter are sustained.
*1993 *198There is an exception by the executrix that relates to commissions on the estate. There was a refusal to allow these *199commissions. This was a question of fact. There was some testimony in support of this finding of fact by the special referee and the Circuit Judge, and, therefore, under the rule, we would not interfere. But we are led to remark that in the “Case” we find (at folio 95 of the old Brief, that is made a part of this,) “$55 allowed the executors for necessary traveling expenses for eleven years, they charging no commissions.” This is unexplained; was reduced to writing by the special referee as an admission for his regulation while the attorney for the executrix (Mr. Steadman) was present. This exception should have been overruled.
Judgment affirmed.
May 11, 1892. TJpon a petition for a rehearing filed in this case, the following order was endorsed
Pee Curiam.4 We are unable to discover that the court has either overlooked or disregarded any material fact or important principle of law; and hence there is no ground for a rehearing. It, is therefore, ordered that this petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.