#### Ruggles, Respondent, vs. Tyson and others, Appellants.

*April 4*

April *22, 1902.*

*Equity: Bale of part of trust estate to discharge liens: Power to order additional sale.*

In an action by the owner of a life estate in land against the owners of the estate in remainder, subject to certain contingencies, to obtain judicial authority to sell a part of the property, including all estates therein, in order to prevent a threatened destruction of such estates by tax and other liens, the decree authorized the sale of certain lots specifically mentioned in the complaint and also, in case of necessity, the sale of other lands upon application and order of the court at the foot of the decree. The amount realized from sales of the lots specifically mentioned proved insufficient to discharge the liens. *Held,*that an order authorizing the sale of another parcel for that purpose. was within the power of the court and was proper.

Appeal from an order of tbe circuit court for Milwaukee county: Eugeke S. Elliott, Circuit Judge.

*Affirmed.*

*302After a decision in this case by this court, reported in 104 Wis. 500,79 N. W. 766, 81 N. W. 367, and the *remittiiwr*to the circuit court for Milwaukee county, that court, on July 25, 1900, entered a judgment or decree substantially in accordance therewith, authorizing the sale of the entire title to four certain lots and the application of the proceeds in the manner directed by this court. The decree also authorized the trustee to join with the plaintiff in any other sales or conveyance of other real estate involved in the trust, “upon application and order of this court at the foot of the decree.” On September 3, 1901, the trustee appointed by the former decree presented its petition, alleging that, of the four lots authorized to be sold by the decree itself, three and a half lots had been sold; that the prospective purchaser had receded from his intended purchase of the other half of one of the lots; that the amount realized therefrom had been somewhat less than expected, and that the expenses of the preceding litigation and for compensation of guardian *ad*litem, authorized to be paid out of the proceeds, had been greater than expected, so that the net amount realized from the sale of the three and a half lots was not adequate to accomplish the purpose of discharging the liens in the manner prescribed by the decree, so as to save the remainder of the premises. That petition also represented an opportunity to sell an additional lot, to wit, lot 5 in block 96 in the Ninth ward of the city of Milwaukee, for the price of $6,000, which amount is needed, and is believed to be sufficient, to accomplish the purpose for which the original sales were authorized, and which amount would not makfe the total exceed that for which it was expected the original four lots could have been sold. Upon this petition, on the foot of the decree, the trustee was authorized to malee conveyance, with the life tenant, of said lot 5, so as to convey the complete title thereto of all persons existent or hereafter to come into existence in or to said premises. From that order the guardian *ad litem*of the minor remaindermen *303brings tbis appeal, in order to submit to tbis court tbe question as to tbe authority of tbe circuit court to mate sucb order •and to authorize tbe divesting of all title other than that of the life tenant, *Virginia C. Buggies.*

Tbe cause was submitted for tbe appellants on tbe brief of *Bollin B.*Mallory, guardian *ad*litem, and for- tbe respondent ■on that of Quarles, *Spence & Quarles.*

Dodge, J.

We see no reason to doubt either tbe power of the circuit court to authorize tbis additional sale or tbe propriety of its so doing upon tbe showing made. By tbe decision in tbis court it was expressly pointed out that tbe effect of tbe original complaint was to submit to tbe court of equity, fully and completely, tbe situation of tbe trust estate, and to empower it to.order sucb disposition of parts thereof as should be most beneficial to tbe ultimate purpose of tbe trust; namely, tbe preservation of tbe *corpus*thereof for those entitled thereto upon tbe termination of tbe life estate. Tbis, unquestionably, includes tbe authorization of sale, not only of tbe specific lots originally mentioned in tbe complaint as advisable to sell, but sucb others in substitution therefor as it may have developed can be disposed of more advantageously .and more effectively to accomplish tbe main purpose above .suggested. It, of course, is not surprising that anticipation •existing at tbe time of invoking tbe investigation and action of tbe court might be disappointed after tbe lapse of so long "time pending its decision, and there must exist both power and duty in tbe court to meet tbe changed situation and so act upon existing facts as to accomplish tbe purpose of its .jurisdiction. Tbe mandate of tbis court in directing decree was not restrictive as to tbe specific portion of tbe trust property which should be sold, but only as to tbe method of tbe application and preservation of tbe proceeds thereof. We -think the decree, together with tbe ancillary order on tbe foot thereof, is entirely within tbe instructions of that mandate.

*By the Court.*— Order affirmed.