#### *Lydia Jane Baker, by her guardian, vs. William H. Baker and others.*

The Court of Equity has the *poiuer*to sell the absolute fee in lands, on the application of the person having a defeasible fee, against the will of the contingent devisee. Per Johnson, Ch.

An application for such a sale opposed *by*the contingent devisee and refused by the court.

*Before*JohNsokt, Ch. *at Lancaster, June,*1843.

The decree of his Honor the Chancellor is as follows.

The following clause is contained in the last will of the defendant’s testator, the late William Baker, viz: — “I give and bequeath to my beloved wife Rhoda Baker, the lands whereon I now live, during her widowhood, for her support and maintenance— also the following *negroes,*viz: Jack, Sail, Mary and George, with their future increase, during her widowhood ; and at the marriage of my said wife, I will and bequeath the said land and negroes, with their future increase, to my natural daughter, Lydia Jane Baker; and in case of the death of my daughter, Lydia Jane Baker, before the above contingency happening, or if my daughter should die leaving no children at the time of her *393death, in that case all the aforementioned property, lands, ne-groes and increase, I give to my son William H. Baker of Alabama, to him and ‘his heirs and assigns forever.” “But if my little infant daughter,” (the complainant,) “should be alive at the intermarriage of my wife with any person, in that case all the lands and negroes, with their future increase, at the end of the widowhood of my wife, I give to my infant daughter, and at her death to her children; and in case of her dying and leaving no children at the time of her death, then, and in that case only, I give that property to my son William H. Baker.”

The testator died in 1837, and his widow intermarried with Henry Gardner, the guardian of the complainant, in 1839, when of course the interests of the complainant became vested, and it is stated in the bill that Gardner, the guardian, has rented out the plantation since that time, from year to year, for her benefit, but that almost the whole tract has been cut down and cultivated, leaving but scanty materials for repairs of buildings and fencing. That the plantation is much worn and exhausted, and the buildings and fences are greatly out of repair, and that under this system, the plantation, in the course of the long minority of complainant which is to ensue, will be entirely worn out and exhausted — and the prayer is, that the lands may be sold under the order of the court, and the proceeds vested in other property, subject to the uses of the wiH, or paid to the guardian of the complainant.

The defendant William H. Baker still resides in Alabama, and has not put in his answer, nor has he qualified as executor. He was, I suppose, made a party by publication, and for any thing that appears, is in fact ignorant of these proceedings. The defendant Blackman admits in his answer the facts stated in the bill in regard to the condition of the plantation, and concurs in the opinion that it would, under the circumstances, be to the interest of all concerned, that the land should be sold and the proceeds vested in other property, or put to interest, subject to the uses expressed in the will. The commissioner to whom the subject was referred, on the evidence of disinterested witnesses, found the facts stated in the bill and admitted in the answer to be true, and recommends a sale, and I shall accordingly order a sale.

It was argued at the hearing, that the limitation over to William H. Baker was void, and that the complainant took an absolute property in the estate devised, but on examination of the authori*394ties, I am satisfied that the limitation over is good, dependent on. the event of Lydia Jane Baker dying without leaving issue at the time of her death; but if I had thought otherwise, I should have made no order on the subject, as William H. Baker is not in reality before the court, and I propose still to leave it open, until it shall be necessary to make a final disposition of the funds arising from the sales.

It is ordered and decreed, that the plantation mentioned in the pleadings be sold by the commissioner, at such time as he, with the consent of the complainant, shall appoint, on the terms recommended by him, that is to say, on a credit of one, two and three years, in equal instalments, the interest to be paid annually on the whole sum, at the end of every year. The purchaser to give bond and personal security, and a mortgage of the premises, to secure the payment of the purchase money. *The*accruing interests when received, to be paid to complainant for the use of his ward, and the principal sum to remain subject to the further order of the court.

The defendant, W. H. Baker, appealed.

*Clinton,*for the appellant.

*Wright,*contra.

Curia, *per*Johnson, Ch.

The decree of the Circuit Court proceeds on the principle, that the court have the power to order the sale of the entire fee simple of the lands *in*question, against the will of the defendant Baker, and in reviewing the matter, I am satisfied that it can be sustained. There are numerous cases in which the court do exercise the power of disposing of the interest of the parties in real estate without their consent, as in the common case of the partition of intestates’ estates provided for by the Act of 1791, and according to *Pell vs. Ball,*(a) decided at the last sitting of the court in Charleston, where real estates were devised to several and partition was sought for by one; and so in all cases where several have a common interest which cannot be severed in specie so as to make the several parts useful to all, as in the case of a house with a *single room of*which half a dozen persons are tenants in common, where the only practicable mode of making severance is by reducing it to money. In this and like cases the exercise of the power is forced on the court by necessity, as that is the only means by which equal *395justice can be done between the parties. But here no such necessity exists; the interests of the parties are several and distinct. The will gives the fee to the complainant, defeasible on the contingency of her dying without leaving issue at the time of her death, and in that event the absolute fee is limited over to the defendant Baker in remainder, and their estates, if the remainder over vests in Baker, are as distinct and independent of each other, both as to the title and the enjoyment, as if there had been several estates devised to each of them. The contingent estate of Baker opposes no obstacle to the complainant’s perfect enjoyment of all interest which the testator intended to confer on her, or to her power of disposition over it, and the sale of Baker’s contingent interest is in no way necessary to its full fruition. It may be that the estate would sell for a better price if it had not thus been incumbered with this limitation, but it will be worth just as much in the hands of the purchaser as it is in the hands of the complainant, and as well might one, who desired to sell his own estate, insist that his neighbor, who owns an adjoining estate, should be compelled to sell that also, because they would bring a better price if both were sold together, or a remainder-man that the interest of the tenant for life should be sold because he would prefer to have the remainder in the form of money.

It is therefore ordered and decreed, that the decree of the Circuit Court be reversed, and that the case be refered back to the Circuit Court, to give the complainant an opportunity of taking such further order as she may think fit, consistently with this opinion.

The whole court concurred.

(a)

 Ante, p. 361.