#### *Samuel Pearse et al. vs. Eli Killian.*

Afee simple conditional estate lias frequently been recognised in our own decisions.

Whore an estate of freehold is given, with a remainder or reversion, to the right heirs of the donor, he will take who answers that description at the termination of the parti, cular estate: and having the right, though he cannot convey, or devise it, he may never, theless release it to the tenant of fee conditional, so as to make his estate an absolute fee simple.

N. jP.— *Vide Preston on estates*440.

*Before*Dunkin, Chancellor, *at*Columbia, *June Term,*1841, *'who Decreed, as follows.*

This bill was filed for the specific performance of a contract for the sale of a house and lot in the town of Columbia. An objection having been made to the sufficiency of title, the Commissioner was directed to enquire and report on the title.

It is very clear that the defendant cannot have a title without the aid of this court. The minor not having been a party to the the former proceedings, and the order having been granted very much as a matter of consent, the court does not regard any thing then done as having any influence on the judgment now to be formed.

It is supposed by the commissioner that if the court will direct the trustee, or the officer of this court, to convey to the defendant, that this will cut off the contingent remainder men, and that Samuel Pearse and his heirs would be estopped by his deed.

In *Redfern vs.*Middleton, Dud. Eq. 115, the question was made, whether a deed of feoffment, by the tenant for life, who was also the heir at law, would bar the contin.gent remainders, and it was held in the affirmative. But the court there say, that it is on account of this liability of contingent remainders to be distroyed, by the act of the tenant for life, that the practice has obtained of creating trustees to support contingent remainders. 2 Bl. Com. 171: although the court regarded the title tendered as good in law, they refused to afford any aid to the complainants, and dismissed the bill. In the course of the decision, it is said, “when there are Trustees to support contingent remainders, and they join in conveying the estate so as *232to defend the remainders, the court will, in' general, punish them, by making them personally liable.”

It is said, in the report, that the trustee has given bond, with good security, to account for the purchase money to his daughter on her coming of age, or marrying. Assuming as correct all the legal positions maintained by the complainant, it does not appear to the court that it would be proper to interfere. Bill dismissed.

The complainant appealed, on the following grounds.

1st. That Sarah P. Pearse was tenant of the fee conditional (at common law) in the property mentioned in the bill, and as such, can bar her issue, even before issue had.

2d. That the only interest which Sarah P. Pearse could not bar, before the birth of issue, is the possibility of re-verter to John Pearse, (the father of Samuel Pearse, the complainant,) who was the original grantor. That Samuel Pearse, the complainant, is his only heir at law now living, and has estopped himself and his heirs by his deed, with warrants.

3d. That if Sarali P. Pearse, after coming of age, could bar her issue, this court. can do the same, she being a minor — it appearing to the court that it is for her benefit the contract should be confirmed.

4th. That Sarah P. Pearse is a party to the present bill, praying that the contract may be carried into effect.

5th. That the defendant having partly performed his contract, by taking possession of the premises, and by paying part of the pinchase money, the parties cannot be placed *statu*quo, except by a specific performance on the part of the defendant.

6th. That the remainder to Samuel Pearse, after theinde-finite failure of issue on the part of Sarah P. Pearse, is too remote, and therefore void.

7th. That the decree was contrary to law and equity.

Curia, *per*Harper, Chancellor.

— We think we must lay out of view the proceedings on the petition to authorize the sale of the house and lot, to which the infant complainant was not a party.* But independently of that, the defendant by his answer admits a contract, made with her *233behalf and submits to perform it, provided he can receive a good title ; and though it was stated in argument that he would prefer not to perform, yet he is bound by that submission.

The questions are, whether the complainants could make a good title by their own act, if the infant complainant were of age, and whether the court will, in this case, aid the disability of infancy. As to the first, I think that a good title could be made, if the infant were of age. There is no doubt but that, by the deed of John Pearse, Sarah P. Pearse took a fee simple conditional. This estate has been repeatedly recognized in our decisions. The limitation over to Samuel Pearse, as was agreed in argument, and has been several times decided, was void for remoteness. But there was in the donor, after the death of S. P. Pearse, a right or possibility of reverter, which he transmitted to his heirs. The complainant, Pearse, is his heir. It was argued that the donor left also a widow, who took, in the quality of heir, along with him, and being dead, that her heirs stand in her place. But there is no doubt about the rule, that where an estate of freehold is given, with a remainder or reversion to the right heirs of the donor, he will take, as heir, who answers that description at the termination of the particular estate. Samuel Pearse now answers the description of heir of his father, and would have the right to the estate, if the fee simple conditional were now to determine. And having that right, though he could neither convey nor devise it, I think he may release it to the tenant of fee conditional, so as to make her estate an absolute fee simple. The subject is considered in the case of *Adams vs.*Chaplin, 1 Hill Ch. 272, and I think the authorities there referred to sustain the position. I refer to that case for the general reasoning. In the quotation from Preston, on estates, 440,441, he seems to regard it as familiar law. “On these instances, and indeed, on all limitations which can be ranked under this class, it is observable that the reversion, or remainder expectant, on these estates, or the posibility of reverter, must remain in some person, and that a release from that person will give to this estate the quality of a simple and absolute fee.” So it is said by Lord Hardwicke, in *Wright vs.*Wright„ 411, *234that every posibility may he released. It is not doubted,, but that the infant defendant, if of age, might convey her estate so as to bar her issue, if she should afterwards have any, Co. Lit. 190. Then, if the infant, on attaining age, should convey her estate, and her father release his posibility of reverter, the estate of the grantee would be absolute and perfect. Then the question is made, whether the court will aid this disability of infancy. It is argued that the heirs of the body of Sarah P. Pearse, have a certain qualified or contingent interest in the estate; and though the-infant might, by her own act, bar them, on coming of age, the court will not aid her to do so ; as in the case of contingent remainders, decided in *Middleton vs. Redfern,*or of the issue in tail under the statute *de*donis, in England, with respect to whom authorities were quoted. The court will give them the chance of the tenant’s failing to bar their interest, contingent though they be. But I am satisfied that, in contemplation of law, the issue in fee simple' conditional' are not regarded as having any interest whatever. In the case of *Izard vs. Izard,*1 Bail. Eq. 228, it-was held that the lands of the tenant in fee simple conditional were bound by the lien of judgments, and subject to the claims of creditors in bar of all right of the issue. And this was on the ground that the heirs of the body, in a grant of fee conditional; are named, not for any benefit intended to them, but to qualify the *estate of their*ancestor and fix the course of descent, if he makes no disposition. As against him, they have no rights, and it is only by the effect of the statute *de*donis, that they are enabled,, in England, in any case, to avoid his alienation. I refer to-that case for the authorities quoted, which seem to be ample and express. I think then, there is nothing to forbid the court to aid the infant in conveying, provided it her clearly satisfied that it is for her advantage.

On this point, it may be proper- to offer some remarks- and directions. The report of the commissioner, on the1 petition for sale, we do not consider, and the matter must be again referred to him. It is always with great reluctance that the court directs the sale of an infant’s land or other permanent estate and its conversion into a money fund, which is-so insecure a provision. It should never *235be done, unless there is, otherwise, the prospect of some ■serious loss ,or there will he plain and manifest advantage, unattended by any risk of the loss of the fund ; and the •officer of the court should always report the evidence on which he founds his opinion.' The court will not make such a conversion without the most ample and indubitable security for the safety and forthcoming of the fund, upon the infant's arriving at age; and we are not satisfied that the bond of the complainant, Pearse, with the person.al security proposed, will be a sufficient security. This matter also will be referred to thé commissioner, and upon the coming in of his report the proper orders will be made. It is therefore ordered that it be referred to the commissioner to report, whether it will be for the advantage of the infant complainant, Sarah P. Pearse, to make the sale in question, and that he report in what manner the fund, to arise from the sale, should be secured to the said infant upon her coming of age. Costs to be paid by the complainant, Samuel Pearse. Wm. Harper.

*

There seems no reason to doubt that the use was executed in the cestui que trust, and that the petitioner did not even sustain the character of trustee.

We concur.

David Johnson, X Johnston, B. F. Bun-*■kin.*

Black, for the motion, cited 1 P. W. 166; 2Bro. 570; 12 East: 4 Kent. Com. 276 — 7,227; 2 Mc. Ch. 324 — 68 ; 3 Ves. 234.

Desaussure, contra ; 1. The infant is not bound by the proceedings on petition.

• 2. The court will not, under the circumstances, cut off ■Sarah's heirs, if it can. 3 Even she, if of age and with ■issue, might not be able to bar the issue. 4 The limitation to Samuel Pearse is two remote; and if Sarah should die, without having had issue, the lands would revert to John’s heirs.

1. To convert an estate the *cesíui que trust*must be made a party: 3 J. C. R. 367 ; Mitf. 164 ; 2 Atk. 515; 1 Ves. Jr. 29; 12 Id. 58; Rule; 4 Mad. R. 186; Farrow v. Osborne, 1 Russ. & M. 742; 5. Price, 821; 6 Mad. R. 241; 1 Ball & B. 182; 3 Ves. 76; 1 Lit *&*L. 386 — 396.

2 The court will not make such an election for the infant, nor change her tenure into a different fund, upon different conditions. In Redfern *&*Deloh, refused to assist In barring remainder. Why cut off heirs; one by limitation *236the other by inheritance *1*But what difference in principle ; 5 L. Lib. 91, 182, 96, 192 ; contra *Meugy vs.*Meugy, 3 Dess. Stapleton.

4. Too remote, but at all events the issue of Sarah take as purchasers 2 M. C. Ch. 88; 1 Bail Eq. 299; Riley Eq. 247, 260.

3. If a case might arise in which she is not, the court will not. If she were married and had issue, her husband would not join her.

4: Again — Sedgwick, v. 2 Ves. 57, Sheffield, 3 Id. 529. 16. Id, 274. 17 Id. 8.