delivered the following dissenting opinion: The solicitors of the respective parties, filed in the Court below an agreement, waiving all objections to its jurisdiction to grant the relief prayed in this cause. It is, therefore, our duty to decide the questions presented by the record, even if we should think that they are more properly of legal cognizance. I purpose to consider the effect of the decree of Baltimore County Court, passed at April Term, 1833. The petition, on which the decree was founded, is aptly drawn according to the provisions of the Act of 1182, ch. *12, sec. 12, and is also embraced within the general jurisdiction of equity. Two of the parties to the proceeding, James H. Long and Thomas J. Long, had fee simples in their shares of the real estate in question; the other children of Kennedy Long had 'equitable life estates in their portions; and the widow had a dower interest in all of the fee simple property; while the reversion in fee descended to all the children of Kennedy Long as his heirs-at-law, subject to be defeated (so far as the portions were concerned which belonged to the equitable life tenants,) by the birth of children to them. Henry Long was also a party to the proceeding, appearing as a defendant. How Henry Long was the only one of the devisees in trust who accepted the trust, and the only one of the executors who took upon himself the execution of the will. Eor the reasons stated in the opinion of the Court, it is clear that as devisee he took only an estate per autre vie; but as acting executor, he *76was invested with full power and authority to divide and make partition of the testator’s estate among the persons entitled to it under the will, and for that purpose to sell, dispose of, and convey the same to the purchaser or purchasers, if a division could not otherwise be made. The will also in terms gave him power as acting executor, to make, execute and deliver in due form of law, all deeds, conveyances and other instruments of writing, incident and necessary to the settlement of the estate ; and freely committed to him the “ management of the earthly concerns of the testator.” These different duties and powers having been conferred on Henry Long in different capacities, we must, according to the authorities, treat them as if they were to be executed by different individuals, although it is not easy to believe that it was actually the intention of the testator, that there should be such a division of responsibility. Now the distinct object of the petition was to procure the sale of this property, which Henry Long was authorized to make. It is settled in the case of Keplinger vs. Maccubbin, 58 Md., 203, that no one but Henry Long could make the sale, unless he should choose to waive his right. The petition prays for his removal, and the appointment of some person in his place as trustee, “to carry into effect and execution the trusts and appointments of Kennedy Long’s will,” and avers that the application was made at Henry Long’s suggestion and request. In his answer, Henry Long states that he had removed from the State of Maryland, and was consequently unable to give such attention to the property as he wished, and as it required. His answer then proceeds in these words: “ Having the interests of the petitioners at heart, he would not be willing to cause injury to their property by any act of his, and therefore joins them in their application to this honorable Court, for an order appointing some one whom they may nominate and choose in the place, and with all the power *77and authority of this respondent, and revoking and annulling all power and control of this respondent, in and over the trusts created by the will of said Kennedy Long.” How hearing in mind that the object of the petition was to procure a sale of the property, and that by the will of Kennedy Long, the respondent was the proper person to make the sale, we cannot fail to see that he intended hy his answer to relinquish this power, and to sever himself from all connexion with the property mentioned in the will. The Court evidently considered him as abnegating his duties and powers; for it states in the decree that his refusal and neglect to bestow proper attention on the estate of Kennedy Long was productive of loss and injury to the infant, and the other cestuis que trust; and it proceeds to decree that the property should be sold. In these proceedings, process is prayed against Henry- Long, without attaching to his name any designation either as trustee, or as executor, and he makes his answer without any such designation. But, surely, the absence of such an addition could be of no importance, where it clearly appeared that the object of the proceeding was to divest him of the power and authority which he had derived from the will in question, and to invest some other person with it.
The decree distinctly appoints Josias Pennington to “execute the trusts created by said will.” It cannot be questioned that the “power and authority to sell” was a trust in the strictest and most technical sense. It was so considered by this Court in Keplinger’s Case; and it was there decided that previously to the Act of 1865, chapter 162, where an executor declined to execute such a power as this, it was competent for a Court of equity to sell and convey the property, according to the provisions of the fourth section of the Act of 1785, chapter 72. 58 Md., 211. That section is in these words: “That if any person hath died, or shall die, leaving real or personal estate to be *78sold for the payment of debts or other purposes, and shall not, by will or other instrument in writing, appoint a person or persons to sell or convey the same property, or if the person or persons appointed for the purpose aforesaid shall neglect or refuse to execute such trusts, or if such person or persons, or any of them shall die before the execution of such trust, so that the sale cannot be made for the purposes intended; in every such case the Chancellor shall have full power and authority, upon application or petition from any person 'or persons interested in the sale of such property, to appoint such trustee or trustees for the purpose of selling and conveying such property and applying the money arising from the sale to the purposes intended, as the Chancellor shall in his discretion, think proper.” It will be seen that the Act does not require all persons interested in the sale to join in'the petition; but that the substitution of a new trustee may be made on the application of any one or more of them. The new trustee might have sold the property without obtaining any decree from a Court of equity; and in case the sale had afterwards been called in question, it would have been upheld by the Court, even if not made under the precise circumstances specified in the will, provided the sale was such as the Court would have decreed, upon a proper application, for the purpose. For it is a rule without exception that equity will ratify any act when done, if it would have previously ordered it. A sale by the new trustee, made when the proper-occasion arose, would have conveyed all interests in the property, present and future, vested and contingent. It was manifestly contemplated by the testator that the sale might be made before the birth of any grandchildren, because the only restriction made on the sale is, that it must not be made before one of two events ■should happen, to wit: the death of the testator’s wife, or the arrival at age of his youngest child; and both of these events, in the ordinary course of things, might occur he-*79fore any grandchildren were horn. The difference between a sale by the trustee in the exercise of his own judgment, and one made under a decree of the Court is this: if he made it without first obtaining a decree of the Court, he would he obliged to establish to the satisfaction of the Court that circumstances justified the exercise of his power; whereas, on application to the Court, the propriety of the sale would be determined before a decree was made. In this instance the Court was satisfied (to quote the language of the decree,) that it was “for the interest and •advantage of said infant, and all persons concerned, that the said country place should he sold.” And all the owners of the entire fee simple (in the then condition of things) were before the Court; and all those who were sui juris, were earnestly asking that the property should be converted into money. It is true that the interests of Andrew K. Long, and of the daughters of the testator were liable to he diminished if children should thereafter he born to them. Such children would take interests in the property in defeasance of the estates of their parents. The property was going to ruin, and its conversion into money was required for the benefit of those who might in •any future contingency become interested in it, as well as for the benefit of those who were then the sole owners. Is there any rule founded in reason, or in justice, or in the practice of equity, which required the Court to refuse its aid to these owners ? Was the Court obliged to stay its hand and let the property go to ruin, simply because in some future contingency, (which in point of fact might never occur) other persons, not then in existence, might have an interest in it? If this he so, the jurisdiction of ■equity is most abortive and impotent. A rule so unreasonable and so pernicious ought not to he tolerated, unless it he sustained by an irresistible weight of authority. How, I maintain that there is no such rule. I maintain that the sale in question carried every interest in the prop*80erty; and that in its decree the Court was exercising a rightful and provident jurisdiction.
In this State the Court of Chancery has always had the power to convert the real estate of an infant into money, and it exercises this power for the infant’s benefit. The infant’s property is not taken from him; the change in the character of the property is made only when it will promote his benefit to make it. Dorsey vs. Gilbert, 11 Gill and Johnson, 87. The Act of 1785, chapter 72, section 12, provided for the exercise of this power, in cases where the infant had an interest in common with any other person ; and by that Act, whenever it was to the interest and advantage of the infant and the other owners of the property, the Court was required to order a sale. It will be seen that the right of the parties to have a sale, under the circumstances mentioned, was absolute and unqualified. Asale made with a reservation of a contingent interest would he effected under very disadvantageous circumstances; and in the present case would have operated with peculiar injustice against the widow, and the two children who had fee simples not subject to any future contingency. The shares of the property belonging to •these parties were not liable to be diminished by the birth of children; and justice required that they should have their due proportion of such sum as an unincumbered title would bring. It is a practical denial of justice to them, if the sale cannot be made, disincumbered of future contingent claims on the property. Nowit is argued that the interests of the contingent remaindermen could not be sold, because not being in esse they could not be made actual parties to the proceeding, and no one could represent them in the case. And in support of this position it is said that, no one is hound by a decree unless he is a party to the cause, either actual or by representation. The formal and technical terms in which a rule of law is enunciated, seldom give us much insight into its real mean*81ing. We must see how it is applied in practice if we would understand its scope and effect. Lord Redesdale, in Giffard vs. Hort, 1 Schoale & Lefroy, 408, shows the application of the rule to a case involving contingent remainders to persons not in esse. “Courts of equity have determined, on grounds of high expediency, that it is sufficient to bring before the Court the first tenant in tail in being, •and if there be no tenant in tail in being, the first person •entitled to the inheritance, and if no such person, then the tenant for life, and as Courts of equity constantly act •on these parties being before the Court, in anything relating to the whole estate; ” * * * * * * “Where all the parties are brought before the Court that can be brought before it, and the Court acts on the property ac cording to the rights that appear, without fraud, its decisions must of necessity be final and conclusive. It has been repeatedly determined that if there be tenant for life, remainder to his first son in tail, remainder over, and he is brought before the Court before he has issue, the contingent remaindermen are barred; this is now considered the settled rule of Courts of equity and of necessity.” And he is also cited in Calvert on Parties, page 31, as saying: 41 Contingent limitations, and executory devises to persons not in being, may in like manner be bound by a decree •against a person claiming a vested estate of inheritance; but a person in being claiming under a limitation, by way of executory devise, not subject to any preceding estate of inheritance by which it may be defeated, must be made a party to a bill affecting his rights.” In Lloyd vs. Johnes, 9 Vesey, 55, 56, Lord Eldon said: “A Court of equity in many cases considers the tenant in tail as having the whole ■estate vested in him, at least for the purposes of suit; and for those purposes does not look beyond the estate tail in a •suit aiming bj the decree to bind the right to the land. I distinguish between cases, where the suit is founded upon contract by the tenant in tail, and a suit to bind the land *82in respect of charges created by the author of the gift, and imposing them therefore upon all, who take per formam doni. In the latter the subsequent remainderman has a clear interest in the event of the suit of the prior tenant in tail. If the event is adverse, in many cases he may be bound; if prosperous, in many he may gain. If an estate is sold under- the judgment of the Court, for the very purpose of enabling this Court to carry on such suit, and the convenience of justice for the purposes of the suit, the remainderman would be bound, or have the advantage.” His Lordship is not by any means to be understood as meaning that the only case, in which a subsequent remainder-man is bound, is where a charge is imposed upon the estate by the author of the gift. This instance is put only as an example of the application of the rule, and in contradistinction to a contract made by the tenant in tail, which would not bind the remaindermen. The same learned Chancellor in Cockburn vs. Thompson, 16 Vesey, 325, said: “The strict rule is, that all persons, materially interested in the subject of the suit, however numerous, ought to be parties: that there may be a complete decree between all parties, having material interests; hut that, being a general rule, established for the convenient administration of justice, must not be adhered to, in cases, to which, consistently with practical convenience, it is incapable of application. Accordingly there are several well-known cases of exception; and, without going through them all, I will mention one instance of not applying it to persons, having valuable interests in real estate: viz., where it has been held sufficient to bring before the Court the first person, having an estate of inheritance, though it cannot he denied, that, persons, having present, immediate, valuable interests in the same real estate, may become most deeply affected by what is done here in their bsence.”
The result of Lord Redesdale’s decision, above quoted, was that the subsequent remainderman was entitled to *83appeal from a decree against the tenant in tail, because that decree barred him; and the House of Lords showed their approval of his decision, by passing an order allowing the appeal, in accordance with the report of a committee, of which the Lord Chancellor of England was chairman, and the Lord Chancellor of Ireland a member. 1 Schoale and Lefroy, 411. The opinion is regarded asan authoritative exposition of the practice in equity by Judge Story, in his work on Equity Pleading, sections 144 and 145; and by other learned text-writers, and has been quoted and adopted a great number of times by the Courts in England and this country. The rules of equity practice are not rigid procrustean formularies, which must be applied under all circumstances, without regard to the injustice and inconvenience which may he produced. The great Jurists, who established our equity system, founded it on the principles of enlightened justice as applied to the necessities of mankind. For the attainment of their beneficent purposes, they modified the results of the inexorable logic of the common law, and instituted salutary principles, which by their flexibility might be adapted to all the varying exigencies of social life. Their rules were framed with the special intent of attaining their great objects, and they did not commit the mistake of sacrificing the end to the means. One of the greatest authorities in equity has spoken with great clearness on this point. Speaking of another rule on the subject of the necessary parties to suits, he says: “ It has been well observed, that the general rule, being established for the convenient administration of justice, ought not to he adhered to in cases in which, consistently with practical convenience, it is incapable of application, for then it would destroy the very purpose for which it was established.” Story’s Equity Pleadings, section 96.
How when the petition for the sale of this property was filed in 1833, Baltimore County Court had the opportunity *84to choose between two courses of action. It could authorize a sale of every interest in the property, and preserve the portions of the purchase money, to which persons not then in existence might in future contingencies be entitled; or it might refuse altogether to act, and leave the property to go to destruction. It adopted the former alternative. The property was sold for its full value, and the contingent interests in the purchase money were carefully and faithfully preserved. It cannot be questioned that the action of the Court was the wisest which could have been taken for the benefit of all concerned. Every living person was before the Court who could possibly have the least interest in the property, and their interests were identical with those who were unborn. To have required more would have been to demand impossibilities. If a Court of equity cannot deal with property under such circumstances, and exercise its powers for its benefit, then such property is beyond the pale of the law. It is outlawed. I cannot bring my mind to such a conclusion. In the very able and well reasoned opinion delivered by the Chief Justice, reference is made to the case of Goodess vs. Williams, 2 Y. & Coll., N. R., 595, in which it is decided that “ Where a person is seised in fee of an estate, having that seisin liable to be defeated by a shifting use, conditional limitation, or executory devise, the inheritance is not represented in equity merely by the person who has the fee liable to be defeated.” But it must be considered that in the case cited the executory devisees whose estate might defeat the estate in fee, which was represented in Court were then living persons; and it was for this reason that they were required to be made parties. According to the opinion of Lord Redesdale, already quoted, if they had not been in being, their interests would have been bound by the decree against the persons holding the defeasible fee. And to the same effect is Judge Story’s opinion, Story’s Equity Pleadings, section 145, where he states the *85doctrine in almost the same words, referring to Mitford’s Equity Pleading, and Cooper’s Equity Pleading. But he takes particular pains to say in section 147, that if the persons are in esse, who are entitled to the executory devise which may defeat the precedent estate in fee, they must he made parties. If these authorities are correct, they are conclusive of this case. They describe with perfect accuracy the case now presented ; the contingent limitations to persons not in being, would, when they came into existence defeat the vested estate in fee, and the owners of this defeasible fee were in Court, when the decree of 1833 was passed. The very question in this case was decided by the Court of Appeals of Virginia in Faulkner vs. Davis, 18 Grattan, 651, in an opinion of very great ability and learning. It was held where property owned in part by infants had been sold under a decree where all living persons interested in the property were made parties, that the contingent interests of persons not in esse were hound by the decree. The Court distinctly decides that although unborn grandchildren were, of course, not personally parties to the suit, because it was impossible to make them such parties, yet they were parties to the suit by representation, and were as effectually hound by the decrees made therein, as if they had been in being and made personally parties to the suit. And the principle is recognized as the law of Virginia by the Supreme Court of the United States in Knotts, et al. vs. Stearns, et al., 91 U. S., 638.
But it has been argued that the Act of 1862, chapter 156, and the Act of 1868, chapter 273, show that in the opinion of the Legislature, previously to those Acts, a Court of equity had no power to hind by a decree of sale the contingent rights of persons not in esse. Let us examine these Acts. Previously to the Act of 1862, a Court of equity had no power, except in cases where it was necessary for the purpose of partition, to sell legal estates, on *86the ground that it was advantageous to the owners to have a sale, in any case where an infant was not interested. The power of sale for this purpose was limited by the ninety-ninth section of the sixteenth Article of the Code to cases of joint tenancy, tenancy in common, coparcenary or other concurrent ownership. And notwithstanding the fifth section of the Act of 1831, chapter 311, (codified as Article 16, section 42, of the Code) it is more than doubtful whether there was any power to decree a lease of the property, unless an infant was interested in it. The Act of 1868 is merely a re-enactment of the Act of 1862 with some few additions. It provides : “In all cases when one or more persons is or are entitled to an estate for life, or years, or to an estate tail, fee simple, conditional, base or qualified fee, or any other particular, limited, or conditional estate in lands, and any person or persons is or are entitled to a remainder or remainders, vested, or contingent, or an executory devise or devises, or any other interest, vested or contingent in the same land ; on application of any of the parties in interest, a Court of equity may, if all the parties in being are parties to the proceeding, decree a sale or lease thereof, if it shall appear to he advantageous to the parties concerned,” and also, that the decree shall hind all persons whether in being or not. It will he seen that it authorizes either a lease, or sale of land, in a number of cases where the parties are neither joint tenants, tenants in common, parceners, or concurrent owners of any kind. Yery important additions are made to the powers previously vested in Courts of equity, and these sufficiently account for the passage of the Act. No special reference, however, is made to the property of infants. The requirement that all parties in being should he brought before the Court, and the provision that the fights of persons not in esse, should be hound were most probably suggested by the familiar equity practice in similar cases. We need not he-surprised that no cases of *87"this kind can be found in England ; because there chancery has no power to convert an infant’s land into money for his benefit. But surely where this jurisdiction exists, as it does in Maryland, it ought to be exercised according to the same rules of practice which are applied to other suits in chancery. On this point we may profitably take heed to •an admonition given by Lord Chancellor Nottingham: “It is the duty of every Court of equity to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all new cases, which, from the progress daily making in the •affairs of men, must continually arise ; and not, from too strict an adherence to forms and rules, established under very different circumstances, to decline to administer .justice, and to enforce rights, for which there is no other remedy.” It will be seen from what has been said, that I am unable to agree with the conclusions reached in Downin vs. Sprecher. But if this case is to be regarded as the •settled doctrine of the Court, the decree of Baltimore County Court ought nevertheless to be sustained. The power of sale given to Henry Long as executor was certainly a trust, and he had deliberately renounced it. It is a rule without exception that equity will not allow a trust to fail for want of a trustee. Story’s Equity Jurisprudence, sections 976 and 1059. It has not been doubted since the decision of Lord Northington in Hewett vs. Hewett, 2 Eden’s Reports, 332, that the Court will carry into •effect a power of this kind for the benefit of those interested in it, when the person on whom it is conferred refuses to do so. Faulkner vs. Davis, 18 Grattan, 681. On this point we may also refer to Story’s Equity Jurisprudence, section 1060.
The decision of the Court in this case will disturb a decree which has been regarded as a final adjudication for more than half a century. It will take from the appellees a large amount of property, which they have honestly *88purchased and paid for, and will reverse a practice which has existed in the City of Baltimore heyond the time of' living memory, and which in my opinion is founded on established precedent, and the true theory of chancery. It will introduce uncertainties and embarrassments in titles to real estate, which no man can measure. With unfeigned diffidence, I dissent from the very able and learned opinion of the Court; but a sense of duty compela me to say that, according to my deliberate conviction, the decree of the Circuit Court ought to he affirmed.