#### *J. J. Bulow, Jun., et al.*vs. *C. Buckner et al.*

Testator authorized his executors to sell his house and lot, but not for an amount less than a sum fixed by him *:*— Held, that this direction, did not bind devisees and the Court; that the devisees themselves, if *sui juris,*might sell, and, if infants, the Court, for them, might order a sale, for less than the sum fixed by the testator.

The jurisdiction of Chancery to soil and convoy an infant’s estate, is now too firmly established to be shaken: it ought, however, to be exercised with caution, and the Court, before ordering the sale, must be satisfied of its necessity or expediency to tho infant’s intorest.

In references to the Mastor or Commissioner on this subject, as well as on all others in which infants are concerned, and which are, in fact, *ex parte,*the officer should report to the Court the testimony on which his opinion is founded, that the Chancellor may form an opinion for himself.

This case came before the Court, JohNstoN, Ch., presiding, on the report of Commissioner Gray, as follows:

*“*This case has been referred to me under the following order, made on the 12th inst.: *‘*ordered, that this case be referred to the Commissioner to report on the expediency of the sale proposed by the parties interested.’

“ It is an application to the Court for its aid and sanction to enable the executors of the will of C. *W.*Bulow, formerly of this city, deceased, to sell a house and lot belonging to the estate, situate in Meeting-street, in Charleston, for a less sum than that to which they are limited by said will. The clause of the will is as follows : ‘ I authorize and direct my executors, etc., to sell and dispose of (as soon after my death as the same can be conveniently done) all the rest and residue of my estate, both real and personal, whatsoever and wheresoever in the State of South Carolina, on the following terms: the land for one-third cash, the balance payable in one, two and three years, with bond and mortgage of the same to secure the purchase money, etc.; but *402it is my will, and I do hereby declare, that my said executors and the survivor of- them, or such of them as shall qualify on this my will, shall not sell, nor have the power of selling, my house and lot in Meeting-street, in the city of Charleston, where I now reside, for a less sum than $25,000 ; but they are hereby empowered to sell the same for that sum or more, on the same terms as the rest of my landed estate^ is herein directed to be sold.’ The testator afterwards proceeds to devise and bequeath his estate, real and personal, including this house and lot, to his son John J. for life, then to the children of his said son, and in default of them to his wife, Mrs. Abigail F. Bulow, and the children of testator’s daughter, Mrs. E. Buckner, the wife of Wm. G. Buckner, residing in N. York. I find that William G. Buckner was, by an order of the Court of Chancery in N. York, made 5th October, 1830, duly appointed guardian of the persons and estates of his five minor children, viz: C. W. Buckner, Elizabeth Buckner, W. F. Buckner, G. Buckner, and E. Buckner, who are the children of said Mrs. E, Buckner referred to in said will. I find that Mrs. Bulow, J. J. Bulow, Jr., and W. G. Buckner, as guardian of his said children, executed a power of attorney on 6th of last October, in New-York, to Wm. Lance, of Charleston, authorizing and empowering him to make the present application to'this Court. I further find that all the parties interested in this property, who are of age, and the guardian of those under age, concur in the expediency of the sale, and are desirous that the Court would sanction a sale by the executors for a less sum than the will directs.

“ I further report, that I have consulted several of the most respectable and experienced persons in Charleston — gentlemen who have had and still have the best opportunities of knowing the value of said property — all of whom concur, that it will be impossible to effect a sale of this house and lot for the sum demanded by the will. No one of them supposes that as much as $15,000 could be procured for it, and several put its value considerably below that amount. It is presumed that the high estimate placed on this property by the testator, grew out of the *403comparatively greater value of property when the will was made, and the large expense incurred in building the house, which was erected when materials brought the highest prices. I, therefore, respectfully recommend, that the executors be authorized and empowered by the Court, to sell, at a less price than that limited by the will — a price to be regulated by their sound discretion; that the terms of sale be such as the will directs, and that the proceeds of sale be applied and held by them subject to the uses and limitations of said will. The title to be made by the proper officer of the Court.”

The presiding Chancellor rejected the report, and ordered the bill dismissed.

An appeal was taken on the grounds—

1. That all the parties interested in the sale of the property being before the Court, and applying on behalf of themselves, the Court has power to order a sale, and that their officer should execute a title; the prohibition in the testator’s will, being to the executors only.

2. That all the parties interested in the estate being residents out of this State, and it being for the benefit of all that the sale-should be made, the Court would do what the testator himself would probably have directed, had he foreseen the change of circumstances.

*Lance,*for appellants.

The opinion of the Court was delivered (April, 1831) by

Harper, J.

We concur in the view taken by the complainants’ counsel, that the restraint which the testator thought proper to impose on his executors, with respect to the sale of the house and lot in question, could have no effect in restraining the devisees, if they were of full age and *sui juris.*If all of the devisees, in possession and remainder, were of age, and should join in a conveyance, the title would, of course, be good. It is' only the minority of some of them which prevents this from being done, which all seem to desire. The jurisdiction of Chan-*404eery to sell and convey an infant’s estate, however questionable it may have been when first exercised, is now too firmly established to be shaken. It has been familiarly exercised ever since a Court of Chancery has existed in this State, and very many titles now depend upon it. It is, in many instances, an exceedingly beneficial jurisdiction : especially in this country, where land is frequently the least valuable and productive sort of property. Still, however, it *ought to*be exercised with the utmost caution, and the Court ought to be most fully satisfied of its necessity or expediency to an infant’s interests, before it will order a sale of his land. If not carefully guarded, the jurisdiction is liable to the most obvious abuses. The Court will not speculate for an infant. It must be satisfied that a certain advantage will be gained, or a serious injury suffered, before its interference can be warranted. I may observe, that in references to the Master or Commissioner on this subject, as well as on all others in which infants are concerned, and which are in fact *ex parte,*the officer should report to the Court the testimony on which his opinion is founded, in order to enable the Chancellor to form an opinion for himself. In the present case, there was no inquiry as to the necessity or expediency of the sale for the infants’ interests, but it is desired that the cause may be remanded for the purpose of making such inquiry. I suppose it is competent for this Court to make such an order. If the interests of the infants do require such sale, the Court would be unwilling to put the parties to the expense and delay of another suit. The cause is, therefore, remanded accordingly.

Johnson and O’Neall, JJ., concurred.

*Decree reversed.*