#### In re Kingston’s Estate.

*January 11*

January *29, 1907.*

*Remainders: Sale under order of court: Procedure: Statutes: Construction.*

1. Under ch. 300, Laws oí 1899, authorizing a sale of future contingent interests in land in all cases wherein the court may find a sale to be substantially promotive of the interests of the parties, it was not intended to confer upon courts powers additional to those theretofore exercised for the sale of interests in lands, but to prescribe a procedure to effect such sales; and hence interests in remainder belonging to the children of a devisee for life, or, should he die without issue, to testator’s children or their issue, cannot be ordered sold in such a way as will result in a complete separation of such remainder from the life estate.

2. In such case, if some disposition of an interest in the estate must be made for the purpose of obtaining funds to discharge liens . and claims created against it by the testator, and for its preservation, it is proper to raise the necessary sums by mortgage or by a sale of part or all of the estate, and to appropriate so much of the proceeds as may be required to free it from such liens or claims to that purpose, the remainder to. be kept in lieu of the real estate and held for the use and benefit of the parties as intended by the testator in his devise of the real estate.

*561Appeal from an order of tbe circuit court for Waukesha county: James J. Dice, Circuit Judge.

*Reversed.*

William Kingston died testate January 14, 1902. He left real estate consisting of two farms. In bis will various bequests were made, and tbey, as well as tbe debts and a mortgage upon tbe lánds, were made a charge against tbe real estate, wliicb was disposed of as follows: One farm was devised to tbe testator’s son Goodband in fee. ■ To another son, Thomas, a life estate in another farm was devised, with remainder to bis son’s issue living at tbe time of bis death, and, in tbe event of bis leaving no living issue, then remainder over to tbe children of tbe testator and to tbe child or children of any deceased child by right of representation. Tbe will was duly admitted to probate and tbe sons Goodband and *Thomas*were appointed executors. On November 28, 1903, tbe county court made an order, on petition of one of tbe legatees, requiring tbe executors to apply within sixty days to said court for a judicial construction of tbe will and for license to sell so much of or such parts or interest in tbe estate as would be proper for tbe purpose of satisfying the charges: against tbe lands. Tbe bequests made by tbe will, tbe debts of tbe testator, and a mortgage upon tbe lands were made a charge by tbe will upon tbe real estate of tbe testator; one half upon tbe farm devised to Goodhand and one half upon tbe farm in which *Thomas*was given a life estate. Before tbe executors bad complied with tbe order of tbe county court *Thomas Kingston*applied to tbe circuit court under cb. 300, Laws of 1899, for an order for tbe sale of tbe interests of tbe remaindermen in tbe estate, alleging that be bad been unable to raise money on bis life estate to pay tbe charges against tbe land, and also alleging that tbe remaindermen would be benefited by a sale of their interests. Tbe court entertained tbe application and appointed a referee for tbe purpose of effecting a sale, and also appointed a referee to inquire into and report to tbe court upon tbe matters alleged in tbe appli*562cation. The referee found that the amount chargeable against the real estate in which *Thomas Kingston*was given a life *estate*amounted to $2,648.39; that the personal property in the hands of the executors was wholly inadequate to pay the charges against the estate; that owing to the peculiar provisions of the will it was impossible to raise funds upon this land by mortgage or otherwise to pay the charges; that the remain-dermen’s interests were liable to be jeopardized by the inability of the life tenant to protect them from waste and the demands of legatees and creditors; that the estates in remainder vfere unproductive, and that the interests of the owners would be benefited by a sale thereof. The court approved the findings of the referee and ordered a sale of the interests of the remaindermen. This is an appeal from the order directing-such a sale.

For the appellants the cause was submitted on the brief of *Connell & Weidner,*attorneys, and a separate brief by *T. E. Ryan,*guardian, *ad litem,*and for the respondent on that of *Tullar & Lockney.*

Siebecker, J.

The petitioner asks the court to authorize a sale of all the estates in remainder in the real estate described in the application, in which he is given a life estate by the will of his deceased father. The petition alleges that petitioner is unable to pay the charges against this property under the provisions of his father’s will; that because the title is held by various parties he is unable, by loan upon his interest, to obtain an amount to pay such charges; and that a sale of the estates in remainder would promote the interests of such owners by protecting them from threatened loss and possible destruction of their interests. Manifestly petitioner proceeds upon the theory that ch. 300, Laws of 1899, authorizes a sale of such interests in all cases wherein the court may find a sale to be substantially promotive of the interests of such parties. An attempt to grant such power to the courts, to in*563voluntarily alienate tbe title to real estate, would seemingly be an improper interference witb private vested rights and be of doubtful validity. If tbe legislature intended to confer sucb a power, tbe grant should appear in clear and explicit terms in tbe act. An examination of tbe context of tbe statute does not disclose sucb an intent of tbe legislature in clear and unmistakable terms. Tbe purpose expressed in its provisions is in harmony witb tbe idea of providing a method by which tbe title to property of persons under legal disability can be alienated in cases theretofore well recognized in tbe law, for tbe promotion of tbe interests of sucb owners, by preserving tbe subject and title of sucb estates when subjected to peril of loss and destruction, which can only be avoided by a sale and an application of tbe proceeds to tbe relief of tbe estate from sucb danger. Tbe provisions of tbe act are mainly regulative of sucb proceedings, and are appropriate to effect an involuntary alienation of tbe title to real property in these well-recognized cases. Tbe object to which tbe provisions are addressed is to furnish a method of turning land into money, and, as an incident thereto, to free tbe land from its burdens and preserve tbe proceeds *in*solido, keep them invested for tbe benefit of those who are or might become interested in tbe land, and to bold tbe proceeds and treat them witb respect to tbe rights and interests of tbe parties as standing in lieu of tbe land. A consideration of these provisions and tbe general object of tbe statute, as gathered from tbe context, convinces us that it was not intended to confer on tbe courts additional powers to those now exercised for tbe sale of interests in lands, 'but that tbe statute should be restricted to prescribing a procedure to effect sucb sales. In this view of tbe statute, tbe primary inquiry arises as to whether petitioner has shown good ground upon which tbe court may direct a sale of tbe interests in remainder created by tbe will. IJnder tbe will petitioner owns a life estate in tbe property; upon bis death, Temainder over in fee to bis living issue, and, in case be leaves *564no living issue at his death, remainder over in fee to testator’s other children in equal shares. The object of the application, as we have seen, is to dispose of the interests in remainder for the purpose of separating them from those of petitioner’s life estate. Such disposition is asked upon the alleged ground that he, as life tenant, is unable to discharge the liens and charges against the property, and that such sale would promote the interests of such owners in remainder by protecting their estates from threatened loss and destruction by reason of his inability to free' the property from such liens and charges. The question thus presented has been considered and determined by this court in the case of *Ruggles v. Tyson,*104 Wis. 500, 79 N. W. 766, 81 N. W. 367, where the rights of parties and the power of the court to transfer the title to property under like circumstances was presented and exhaustively considered. It is there declared:

> “It is not doubted but that the powers of a court of equity are ample to prevent the destruction of the estate in remainder” under such circumstances. “Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstance not foreseen by him and provided for, the court may intervene, but only for the purpose of preserving, and so far as necessary to preserve, the property. If it cannot be preserved in the form intended it may he preserved in its equivalent.” Cases cited in *Ruggles v. Tyson,*104 Wis. 507, 79 N. W. 768.

To accomplish this result the interests in remainder are to be preserved, as nearly as the circumstances will permit, as the creator of them has provided. It is also established that there can be no separation of the interests of the life tenant from those in remainder and that the estate must be maintained *in solido*as intended and provided by the grantor to the time of distribution, unless the court encounters some insurmountable obstacle which prevents effectuating such a purpose. Applying these principles to the facts here presented, it is manifest that petitioner’s proceeding is erroneous in seek*565ing to effect a sale of the interests- in remainder, for the obvious reason that this would result in a complete separation of these interests from the life estate and thus frustrate the very object of the testator.

It is also manifest that the facts and circumstances wholly fail to show any necessity for such a separation. It is apparent that if some disposition of an interest in the estate must be made for the purpose of obtaining funds to discharge the liens and claims against it for its preservation, it will in all probability be entirely feasible and practicable to obtain relief either by mortgaging the land to raise the required sum, or that a sale of a portion of the premises may be made and the proceeds applied to the payment of such liens and claims, and, in the event that the land cannot be sold in parcels, the whole may be sold and so much of the proceeds as may be required to free it from claims be appropriated to that purpose, and the remainder be kept in lieu of the real estate and held for the use and benefit of the parties as intended by the testator in his devise of the real estate. Under these circumstances the application to dispose of the estates in remainder and thus separate them from the life interest should have been denied and the proceeding have been dismissed.

This renders discussion of the other questions presented, as to the propriety of this proceeding in the circuit court during the administration of the estate by the county court, and as to the advisability of ordering a sale in case the proceedings were proper, immaterial and unnecessary, and we therefore refrain from considering them.

*By the Gourt.*— The order appealed from is reversed, and the proceeding is remanded to the circuit court with directions to , dismiss the application.