Case 65 — Suit by Elizabeth Rodman as Trustee and others against Johanna R. Murray and others for a Construction of the -Will of Thomas Rodman, Deceased, and for Sale and Reinvestment of Certain Real Estate.

June 3.

#### Crutcher v. Hodman, &c.

Appeal from franklin circuit court — JAMES E. CANTRILL, circuit judge.

Erom the Judgment Confirming the Sale of Dand the Purchaser, Geneva B. Crutcher, Appeals.

Reversed.

Testamentary Trust — Sale of Real Estate — Reinvestment—Statutes — Actions—Parties Plaintiff.

1. Civ. Code Prac., sec. 489, authorizes the sale of a vested estate of an infant, or of a person of unsound mind, in real property, by order of a court of equity, in certain cases, and section 490 provides that a vested estate in real property owned jointly by two or more persons may be sold by order of a court of equity in certain cases, though the plaintiff or defendant he a person of unsound mind, or an infant. Held, that such sections applied only to “vested estates,” and did not authorize the sale of an infant’s interest in real property which was a contingent remainder, dependent on the event of the infant surviving the life tenants.

2. Civ. Code Prac. sec. 491, provides that in an equitable action by the owner of a particular estate of freehold in possession, or *by*his committee if he be an infant, against the owner of the reversion or remainder, though he be an infant or of unsound mind, and against the owner of the particular estate, real property may be sold for investment of the proceeds in other 'property. Before a sale can he had under such section, the guardian of the infant is required to execute bond to faithfully discharge his duty, and to comply with the orders of the court. Section 493, subd. 5, however, declares that in a sale under section 491, the court by its commissioner, shall retain custody of the fund realized until reinvested and the court shall order the money to he paid by the commissioner directly to the person from whom the purchase for reinvestment is made in which case no bond shall be required. Held, that where in case of the sale of an infant’s contingent interest in real property under sec. 491, no bond was given by the *507testamentary trustee, it was error to order that the purchase-money bonds be made payable to such trustee, who was a nonresident of the State, and not to the court’s commissioner.

3. Where a suit was brought to obtain a sale of real estate devised, in wbicb certain minors beld a contingent remainder interest, and such suit was brought hy one of the owners of the particular estate, and all the other owners were made parties, as authorized by Civ. Code Prac. sec. 491, it was not necessary that the guardian of the infants should be the party plaintiff.

FRANK CHINN, attorney foe appellant.

Appellant is willing to pay the price hid for the land if the proceedings are sufficient to invest her with a good title thereto.

The exceptions are (1) that the action was not brought on behalf of the statutory guardian of the infant defendants; (2) that no bond has been executed to the infant; and (3) that the bond of tbe purchaser is made payable to the plaintiff Elizabeth Rodman as trustee instead of the commissioner of the court.

T. L. EDELEN, attorney for appellee.

1. The objection made by the purchaser that the action was not brought by the statutory guardian of the infants ought not to he maintained, because they have no statutory guardian.

2. The provision of the Code requiring that the action he brought hy the guardian is applicable solely to a several estate in possession and not to a joint estate in remainder.

3. The testator provided in his will that Miss Lizzie Rodman should qualify as trustee for these children without bond, and under this direction the court had the discretion to make the bend for the land payable to her without requiring her to give security and the third objection is untenable for the same reason.

4. Under the statute a purchaser of trust funds is not required to see to the application of the purchase money.

Opinion of the court by

JUDGE O’REAR

Reversing.

This suit was brought originally for a construction of tbe will of Thomas Rodman, deceased, and to confirm tbe sale by the executors of the will and the testamentary trustee thereunder of a certain house and lot in Frankfort, devised by the testator to his three daughters. The nature of the *508estate created in this property was the fee to an undivided one-third to Elizabeth, life estates in the remaining two-thirds to Johanna and Sue, one-third to each, with remainder to their surviving children. Their children now living are infants. See opinion of former appeal, Murray v. Rodman, 76 S. W., 854, 25 Ky. Law Rep., 978. The lot is unproductive owing to the expense of maintaining repairs and taxes and other charges. It was therefore adjudged, under the proof, that it be sold for reinvestment of the proceeds of each parcener in other property. Appellant became the purchaser at the decretal sale at $4,250, more than two-thirds of its appraised value. She appeals from the judgment of the court overruling her exceptions and confirming the sale. The exceptions are that the judgment of sale is erroneous, if not void, because the suit was not brought by the person authorized by statute to bring it; also because the judgment permitted and directed the purchase-money bonds to be payable to the testamentary trustee, instead of to the court's commissioner; and because the bond required by section 493, Civil Code of Practice, was not executed.

It was intimated on the former appeal — though the question was not then presented, and its decision appears to have been dictum — that the proceeding to sell the lot must be under subsection 5 of section 489, Civil Code Practice. That this expression was regarded by the parties as not binding on them is shown from the fact that they do not appear to have attempted to conform to the practice necessary in proceedings under that section. Before the former appeal it was the contention of appellees that the three daughters named took the fee-simple title to the lots; or, if that was not so, then Elizabeth, as testamentary trustees for the others, took the fee, with power to sell and convey and to reinvest the proceeds. Both of these positions having been denied, appellees *509have proceeded for a decretal sale of the property for purposes of reinvestment, as above stated. The question is now presented whether they have pursued the proper course. To decide this it is first necessary to determine the exact nature of the estate owned by the devisees, measured by the provisions of the Code governing sales for reinvestment of such estates of persons under disability. Section 489; Civil Code of Practice, relates to sales of vested estates of infants and persons of unsound mind. These infants have not a vested estate in this lot. On the. contrary, it is a contingent remainder, dependent upon the event of their surviving the life tenants. Nor can the proceeding be under section 490, Civil Code of Practice, because it relates to the sale of a “vested estate in real property owned jointly by two or more persons.” The term “vested estate,” as used in these sections, “includes- all estates which are not contingent.” Ward v. Edge, 100 Ky., 771, 19 R., 59, 39 S. W., 440. Section 491, Civil Code of Practice, is the only statutory provision authorizing a- proceeding in court to sell a contingent remainder interest in lands of persons under disability. It provides: “In an equitable action by the owner of a particular estate of freehold in possession, or by his guardian or committee if he be an infant or of unsound mind, against the owner of the reversion or remainder, though he be an infant or of unsound mind, and against the owner of the particular estate if he be an infant or of unsound mind; or, if the remainder be contingent, against the person, if in being, in whom it would have vested if the contingency had happened before commencement of the action, though he be an infant or of unsound mind, and against the owner of the' particular estate if he be an infant or of unsound mind — real property may be sold for investment of the proceeds in other real property.” In certain sales under sections 489 and 490, particularly *510where the purpose is for reinvestment, and “subject to the provisions of section 491” (and other sections not applicable to this case), before a sale of the land can be ordered, the guardian of the infant must execute bond, with approved, sureties worth double the value of the estate to be sold, that the guardian will faithfully discharge all his duties, and will comply with the judgments' and orders of the court in the action, and will account for and pay to the infant all money or property due or belonging to him when required. The third subsection reads: “If the bond be not given, any order of sale, and any sale or conveyance made under such order, shall be absolutely void and of no effect.” But subsection 5 of section 493 reads as follows: “In the case mentioned in section 491, the court ordering the sale shall, by its commissioner, retain the custody and control of the fund realized by the sale until the same is re-invested in real estate, or in such other property as the funds of persons under disability may be invested by authority of law, and the court shall order the money to be paid, by its commissioner, directly to the person from whom the purchase for re-investment is made, and to no other person, and in which case no bond shall be required.” This subsection was an amendment to the section passed in 1892. Its purpose was to obviate the necessity of the execution of the bond. The procedure required by it was to be in lieu of the bond. The necessity for a strict conformity with the requirements of this subsection are as important to the persons intended to be protected by it as is the execution of the bond mentioned in the other subsection. It is a jurisdictional prerequisite, the strict observance of which can not be too punctiliously enforced. Elliott v. Fowler, 112 Ky., 376, 65 S. W., 849, 23 Ky. Law Rep., 1676. As indicated, the judgment of the circuit court made the purchase-money bonds payable to the testamentary trustee, who *511is a nonresident of this State. This was error. The purchase-money bonds should have been made payable to the court’s commissioner, and control of the fund should have been reserved by the court until it was paid out in purchase of other property, title to which is to be taken and held in the same manner as that sold. The circuit court must not only retain the custody and control of the fund, but must approve its reinvestment before it is parted with.

The argument that the will gives to the testamentary trustee the control of the trust estate, including the interests in the lot in litigation, as well as the control of its investment is unavailing. That she did not have the power of selling the lot under the terms of the will was the point decided in the former appeal. Therefore its sale, if sold at all during the infancy of the contingent remaindermen, must be under and by virtue of section 491, *supra.*The court can not exercise the jurisdiction conferred by that section, except it be done in the manner directed by the section. Consent of parties can not confer, nor can it dispense with conditions of, jurisdiction of the subject-matter. Rodman’s will did not provide that the testamentary trustee could sell the lot, nor did it give her the right to reinvest its proceeds if sold by the court. So far as the trust over that property applied, it did not go beyond the control of it and the custody of the title. Her authority in investing trust, funds given by the will was over the other trust property devised. The testator does not appear to have contemplated its sale for reinvestment of the proceeds in more profitable property. While the testator might have given his executors or the trustee authority to sell the lot and reinvest its proceeds without resort to any court, leaving the whole matter to the wisdom and diseretion of the persons so selected, yet he did not do it. Upon *512that point the will is silent. The statutory authority is therefore the only authority for the sale.

This suit is brought hy one of the owners of the particular estate, and all the other owners are parties. It is not necessary, under section 191, that the guardian of the infant owner should be the party plaintiff, as is required under other conditions.

But for the reasons indicated, the judgment is.reversed, and the cause remanded for proceedings consistent herewith.