#### ALEXANDER J. TROY & WIFE MARIA, AND OTHERS *against*ROBERT E. TROY.

Where a tract of land was given in trust for the sole and separate use of a married woman for life, remainder in trust for her children living at her death, a Court of Equity will not decree a sale thereof, with a view to a re-investment of the proceeds, upon the ground that the land is valuable principally for its timber, and yields *no*present rents and profits.

In decreeing a sale, the Court will regard the interests of persons most to he affected by its action — particularly when those persons are infants.

*86The plaintiffs filed their petition in the Court of Equity for Bladen County, at Spring Term, 1852, praying for the sale of certain lands therein described. The said lands were by Dr. John Smith conveyed by deed, bearing date 3rd day of December, 1850, to the defendant, Robert E. Troy, *“*in trust for the sole and separate use, benefit and behoof of tire said Maria J. Troy, wife of the said Alexander J. Troy, for and during the term of her natural life, and at her death, in trust for the use and benefit of such child or children as she shall have living at the time of her death, or the lawful issue of such and their heirs forever, to be divided amongst them, according to the laws of North Carolina; and in case the said Maria J. Troy shall leave no child or children or issue of such, then in trust for the use and benefit of said Alexander J. Troy and his heirs, provided the said Alexander J. Troy shall survive his said wife ; but in case all the children of the said Maria and also her husband the said Alexander should die, and the said Maria should be left surviving, without either issue or husband living, then in trust for the said Maria, her heirs, &c.”

The said Alexander and Maria J. Troy have issue three children, who are infants, and are joined in the petition as plaintiffs by their next friend, their father. The petition states, that said lands are not in a state of cultivation, that they yield no rents, and are principally valuable for the timber thereon, which at present would command a high price; and that a sale of the same would greatly promote the interests of the tenant for life, and also of the ulterior *cestui que trusts.*Accordingly, the prayer is for a sale thereof by the trustee, Robert E. Troy, and a re-investment of the proceeds in other lands or in stocks, to be held upon the same trusts and limitations.

The defendant answers, admitting the material allegations of the petition, and submits to any decree the Court may make in the premises.

At said Spring Term, 1852, there was a reference to the Master to report whether a sale of the said lands would promote the interest of the petitioners ; and he recommended a sale in his report which was accompanied by an affidavit of two persons, who state that they are well acquainted with the land, and think that the interests of the petitioners would be advanced by a sale thereof.

*87. Upon which state' of the pleadings, the cause was set for hearing, and by consent transmitted to the Supreme Court.

*D. Reid,*for the petitioners.

No counsel for the defendant.

Battle, J.

There can be no doubt that the trustee has no power to sell the lands conveyed to him by Doctor John Smith in trust for the petitioners. And from the fact that an express power is conferred upon him to sell one or more of the slaves under certain circumstances, it may fairly be inferred that the grantor did not intend that he should ever sell fhe lands. That a Court of Equity has, in this State, the power to decree a sale of lands held in trust for a feme covert and infants, upon the petition of the feme and the guardian of the infants, we think cannot be questioned ; and in a proper case, such a sale will be ordered, and the proceeds directed to be laid out in the purchase of other lands, or perhaps vested in stocks, and settled upon the same trusts. Whether the power of the Court extends to a case like the present, where the trust is for a class of persons, some of whom may, but have not yet, come into existence, it is unnecessary for us to decide j for, admitting such a power, we do not think this a proper case for its application. It is undoubtedly the duty of the Court, when it is called upon to exercise its jurisdiction in directing a sale, to see that the benefit of the persons most interested will be promoted, particularly when those persons are infants. This duty would be still more imperative, if the Court could act where the trust might embrace persons not yet in existence. Applying this caution to the case before us, we cannot fail to perceive, that though the interests of the tenant for life might be essentially promoted by a change of the property, it is by no means so clear that the benefit would extend to the children. Their benefit was undoubtedly most in the contemplation of the grantor ; for the fee is given to them, while a life estate only is given to their mother. The use which she and her husband can make of the lands, may possibly be more restricted than the grantor intended ; but that cannot have any influence upon us. The lands are stated in the petition to be valuable principally for the timber growing thereon, and it is certain that the less use which can be made of them by the tenan *88for life, the more valuable they will be for 'the remaindermen. That fact was no doubt known to the grantor, and hence it is very probable that he intended these lands as a certain provision for his grandchildren. The reasons ought to be very strong, which should induce us to do any act which might have a tendency to disappoint that intention.

B ut it may be said, that upon a reference by the Court of Equity for Bladen County, the Master reported that the interests of the infant petitioners would be promoted by the sale of the lands in question. That report is based upon the testimony of two witnesses who give no reasons for their opinion, except that they are acquainted with the lands. *We*have come to a different conclusion. We think that a sale at present would not be benefical to the infants ; but as a state of things may possibly arise at some future time, when a sale would be greatly to their advantage, we will dismiss the petition without prejudice, but with costs.

Per Curiam. Petition dismissed.