Clark v. Platt

Butler, J.

We are all of opinion that after a proper allowance to the petitioner, for the services of his intestate and his own expenses, the money should be paid to Mrs. Platt.

The trust deed of 1846 is not open to the objection that it *285 limited a fee simple after a fee simple ; nor that it substituted a fee simple for a fee simple upon a contingency. The provision for a conveyance ou request to a third person, was a mere provision for a change of trustee. After the trusts for life were determined, the fee simple was to be conveyed to the children of the grantor, who should then be living, whenever they preferred to take it rather than have it controlled by the trustee for their benefit.

Nor is the decree obnoxious to the objections urged against it. It was predicated upon a petition signed by all the parties in interest, and conformed to the prayer of that petition. The 'subject matter was within the jurisdiction of the court, as well under the statute authorizing sales, of lands held in common, as upon general principles giving courts of equity power to direct the sale of trust estates. All the parties were properly before the court. The objection that Alzora was hot bound by it, because a minor and no guardian ad litem was appointed, is not sustainable. Guardians ad litem are only appointed in behalf of infant respondents. It appears also that she was there by her natural guardian, and does not appear that she had any other. It is true the father had an individual interest, and signed apparently as an individual; but it is averred in the body of the petition that it was brought “ on her behalf,” “ by her father and natural guardian,” and that, with his and her signature, is unquestionably sufficient, and the decree was binding upon her. Perhaps it might be claimed, that if it appeared that injustice had been done to Alzora, by reason of her non-age and the misconduct of her guardian, the decree was voidable by her when she became of age, upon proper application to the court. She died however before she became of age, and the decree as to^all the parties has stood unreversed and uncomplained of for ten years. It was clearly beneficial to her and in conformity with the trust deed, as to the principal fund; was passed in accordance with the wishes of all the parties having any interest at the time in the rents and profits ; and is supported by all the presumptions which uphold decrees of the superior court. It is not now open in this collateral way, or in any way, to objection. *286 Minerva Cary released her right to the interest of the fund in question, and she and her releasees solicited and obtained a decree abolishing that right, and it is gone. Woodruff by virtue of the marital relation acquired no interest in that, for it was gone before he intermarried with Alzora, and none in the fund, which was not subject to the contingency of Alzora’s death. Both therefore are without equity in the fund, and the superior court must be advised that it should be paid over, after deducting proper charges and expenses, to Mrs. Platt.

In this opinion the other judges concurred.