Bibb v. Bibb , 204 Ala. 541 ( 1920 )

We are satisfied from a reading of the will of W. J. Bibb, in the light of the admitted facts, that the testator intended to vest his property in B. S. Bibb, Sr., as trustee, to be held during the trustee's lifetime for the use of his children as a class, whether the class should be enlarged by the birth of other children, or diminished by the death of any who were then living, and that, upon the death of the trustee, the estate should vest in fee simple in his children or grandchildren, born of his second wife, who by survival then became his legal heirs.

We discover nothing in the pertinent paragraphs of the will, or in the circumstances of the testator, or in the condition and prospects of his beneficiaries, which would rebut this natural meaning and effect of the language used. Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; De Bardeleben v. Dickson,166 Ala. 59, 51 So. 986; Castleberry v. Stringer, 176 Ala. 250,57 So. 849. To hold that by the "heirs" of B. S. Bibb, Sr., the testator meant only those children then living, or those who might be living at the termination of the previously devised life estate, to the exclusion of any who might be born thereafter, would, we think, defeat the clear purpose of the testator as he has deliberately expressed it in the will.

The devise in question created a remainder in trust for the children living at the death of the testator, subject to qualification or divestiture by the death of any child, or the birth of another child, during the trustee's lifetime. Duncan v. De Yampert, 182 Ala. 528, 62 So. 673. The object of the trust being the preservation of the title and estate for the benefit of a class whose personnel was subject to future change, the estate was technically a springing or shifting use, and, until the members of the beneficiary class are finally determined upon the death of the trustee, the statute of uses (Code, § 3408) will not execute the trust. 26 R. C. L. 1176, § 11; Simonds v. Simonds, 199 Mass. 552, 85 N.E. 860, 19 L.R.A. (N.S.) 686; Gindrat v. W. Ry. of Ala., 96 Ala. 162, 165, 167,11 So. 372, 19 L.R.A. 839. This trust, therefore, still endures.

As to the prayer for relief by a sale of the property for reinvestment:

"A court of chancery has, to some extent, a general supervision over trust estates, and may direct such a disposition as in its discretion seems beneficial to all parties interested, even going so far as to order a sale of the trust estate and a reinvestment of the proceeds without authority being given by the trust instrument, if the conditions are such that it is manifestly in the interest of the trust estate." 26 R. C. L. 1288, § 139, citing Richards v. E. T., etc., R. Co., 106 Ga. 614, 33 S.E. 193, 45 L.R.A. 712; Denegre v. Walker, 214 Ill. 113, 73 N.E. 409, 105 Am. St. Rep. 98, 2 Ann. Cas. 787; Garesche v. Levering Inv. Co.,146 Mo. 436, 48 S.W. 653, 46 L.R.A. 232.

Such a sale by judicial decree, living beneficiaries being represented and bound, is binding also upon all beneficiaries who may be added to the class by birth or per stirpes, though not now in esse. Denegre v. Walker, supra. See, also, Rutledge v. Fishburne, 66 S.C. 155, 44 S.E. 564, 97 Am. St. Rep. 757, and note, 762.

We are satisfied, from the record before us, that this trust estate can be best preserved, and the interests of all the parties best protected, by a sale of the property in order that the tax liens upon it may be discharged and the remaining proceeds reinvested in some safe and profitable way under the supervision and orders of the chancery court.

The decree of the trial court will be reversed, and the cause will be remanded for further proceedings in accordance with the foregoing opinion.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.