#### Clay, et al. v. Clay et al.

(Decided June 18, 1918.)

Appeal from Clark Circuit Court.

Infants—Infant’s Real Estate—Sale of Under Section 491 of tlie Code—Necessary Parties.—Where a testator devised a share of his estate to the children of his nephew and to their children for twenty-one years after the death of the first takers without making any disposition of the remainder, the remainder was undevised estate and passed, under the will, to the heirs at law of the testator, and they were necessary parties to a suit seeking a sale of the property under section 491 of the Code.

JOHN A. JUDY for appellants.

HARVEY T. LISLE for appellees.

Opinion of the Court by

Judge Carroll

Affirming.

Alexander H. Anderson in his will directed that his estate be divided into six equal shares, and clause “E” reads as follows: “I direct that one of the shares shall belong to and be paid annually by said trustees to such of the children of my nephew Julian Clay as survive me, born in lawful wedlock, and *per stirpes*to the descendants of such of his children as may then be dead, an equal portion to each, that is such children and such designated descendants as are in being at the time of my *182death, to them daring their lives, to their issue *per stirpes*for 21 years after the death of said designated children and their said designated descendants.”

The other five, clauses, distributing his estate, contained substantially the same provisions and conditions.

After the will had been probated the estate devised, which apparently consisted of land, was divided into six equal shares, and one of these shares containing seventy-two acres was set apart to the three children of Julian Clay for and during their natural lives. Thereafter, the three children of Julian Clay brought this suit under section 491 of the Code of Practice against all of their living children for the purpose of having the land sold and the proceeds reinvested. The lower court, on motion of the guardian *ad litem*for the defendants, all of whom were infants, sustained a general demurrer to the petition and the plaintiff declining to plead further, the petition was dismissed and they appeal. The suit was dismissed upon ■the ground that the heirs at law of the testator, Anderson, were necessary parties to the action, and so, the only question is, did the children of Julian Clay, and their descendants, take the fee in the land, or only an estate for twenty-one years after the death of the first takers'?

The lower court was of the opinion that the testator made no disposition of the devised estate after the expiration of the life or lives in being at the time of his death, and the period of twenty-one years thereafter, and, therefore, the fee in remainder vested in his heirs at law, and if this contention is correct, it is, of course, clear that the heirs at law of the testator owned a vested interest in the estate, and were necessary parties to the suit seeking to have it sold for the purpose of-reinvestment.

It is contended by counsel for the appellants that: “It was the intention of the testator to set aside one-sixth of his estate to the children of Julian Clay and entail it to then) as long as it was possible for him to do so under the law, and then the fee simple should belong to that branch of the family.” While, on the other hand, it is the contention of the' guardian *ad litem,*representing the appellees, that the testator ‘ ‘ devised his property to six different groups of devisees, giving to them a certain portion of his estate for their lives and twenty-one years thereafter;, that he made no disposition of his estate at the end of the life or lives in being at the time of his *183death, and the period of twenty-one years thereafter, and, therefore, the remainder was undisposed of by him, and immediately upon his death the fee in remainder vested in his heirs at law. ’ ’

The will of the testator was evidently prepared with care, and there is no room for supposing that the testator, through ignorance of the law, or by mistake, or inadvertence, disposed of his estate otherwise than he intended to do. He had the right to make the disposition' he did, and that he intended to so dispose of his estate is made plain by the fact that in five separate clauses, disposing of five different shares in his estate, he used the same words and gave to each class living at his death for their lives and to their issue for twenty-one years after the death of the designated devisees the estate but left undisposed of the remainder, and being undisposed of, the remainder vested in the heirs at law of the testator as undevised estate, therefore the heirs at law of the testator were necessary parties to the suit.

It should here be said that the guardian *ad litem*filed a special as well as a general demurrer, but the special demurrer was overruled and the general demurrer sustained. Whether the court committed 'error in overruling the special demurrer is not material because the real question in the case is the proper construction of the clause of the will in dispute, and being of the opinion that the children of the children of Julian Clay did not take the fee as contended by counsel for the appellants, the judgment of the lower court, in effect so holding, is affirmed.