1. Where, upon a bill filed for that purpose in the proper court
by the guardian of infants, a decree for the sale of the real
property whereof their father died seized was obtained with the
consent of his widow, no inquiry, so far as her rights are involved
can be had touching the validity of the sale if made pursuant to
the decree, and approved by the court.
2. Where the interest of the children then in being, or the
enjoyment of the dower right of the widow, requires the conversion
of such property into a personal fund, a child
en ventre sa
mere does not, until born, possess any estate therein which
can affect the power of the court to pass a decree directing such
conversion. Whatever estate devolves upon such child at his birth
is an estate in the property in its then condition.
3. Under the laws of Virginia, parties in being possessing an
estate of inheritance in property are regarded as so far
representing all persons who, being afterwards born, may have
interests therein that a decree for the sale thereof binding them
will also bind the latter persons.
4. The requirement of the statute of Virginia which, as an
additional security against improvident proceedings for the sale of
an infant's estate, provides that all those who, were he then dead,
would be his heirs or distributees shall be parties was met in the
present case by making the mother and her other children
parties.
6. The title of a purchaser at a judicial sale is not affected
by an order of the court touching the investment of the purchase
money.
MR. JUSTICE FIELD delivered the opinion of the Court.
This suit was brought to set aside a sale and conveyance of
certain real estate situated in Richmond, Va., of which one Edwin
Knotts died seized, made in 1865 under a decree of the circuit
court of that city, and to compel a delivery of the property to the
possession of the plaintiffs. The decree for the sale was obtained
upon a bill filed for that purpose by the guardian of the infant
children of the deceased, to which his widow was made a party. The
property sold consisted of a house and lot which, with a few
articles of household furniture, constituted the entire estate of
the deceased. The house was at the time much out of repair -- so
much so that in its then condition it could not be rented, and
neither the widow nor the
Page 91 U. S. 639
children had any means to repair it. Nor had they any other
estate to which they could look as a source of support. The widow
was entitled to dower in the property, and it was incapable of
partition according to the respective rights of the parties. It was
therefore manifestly for the interest of all of them that the
property should be sold and the proceeds converted into a fund
which would give to them some income. The Circuit Court of Richmond
was invested with jurisdiction under such circumstances, upon a
proper showing of the facts, to decree a sale of the estate of the
children. A law of the state expressly conferred the jurisdiction,
and authorized its exercise upon a bill filed by the guardian for
that purpose if it was clearly shown, independently of admissions
in the answer, that the interest of the infants would be promoted
by the sale and the court was satisfied that the rights of others
would not be violated by the proceeding. Code of Virginia of 1860,
c. 128. The widow consented to the decree so far as her interests
were concerned, and it is only with reference to the estate of the
children that any inquiry into the validity of the sale can now be
had.
The greater part of the papers and entries in the suit in the
Circuit Court of Richmond was destroyed by the fire which occurred
on the 3d of April, 1865 -- the day on which the city was occupied
by the Army of the United States, but their absence was in a great
degree supplied by the testimony of the counsel of the guardian,
under whose advice the suit was brought and conducted. That
testimony, and copies of the decrees preserved, show that the
proceedings were regularly taken in accordance with the provisions
of the statute and the practice of the court. The bill was filed by
the general guardian, and the widow and children were made parties
defendants; they all appeared to the suit, the children by a
special guardian
ad litem appointed by the court. A
reference was had to a commissioner to ascertain the facts required
by the statute to authorize a sale. His report showed the condition
of the property, and that the interest of all parties would be
promoted by its sale, and that no rights of any other person would
be violated thereby. The report was accepted and approved, and a
decree for the sale was accordingly made, which was entered on
Page 91 U. S. 640
the 13th of March, 1863. The sale under it was had on the 5th of
April following, when the testator of the defendant Stearns became
the purchaser for the sum of $13,800 cash. The sale was approved,
and a deed of the property ordered and executed to the
purchaser.
The widow gave birth to a posthumous child in May following the
death of her husband, and the validity of the decree is assailed
because this unborn child was not made a party nor its interests
specifically considered in the previous proceedings in the
suit.
The decree, after ordering a sale of the property, also provided
for the investment of the proceeds in bonds or stock of the
Confederate States, or of any state belonging to the Confederacy,
or of the City of Richmond. The proceeds were invested in bonds of
the Confederacy, and the investment was approved by the court. It
is now contended that the decree of sale was invalid because of the
direction for the investment of the proceeds, and the subsequent
approval of the investment made; the counsel of the appellants
insisting that aid was thus directly given to the rebellion.
These two grounds constitute the principal objections to the
decree. Neither of them, in our judgment, affects the validity of
the sale.
The posthumous child did not possess, until born, any estate in
the real property of which his father died seized which could
affect the power of the court to convey the property into a
personal fund, if the interest of the children then in being, or
the enjoyment of the dower right of the widow, required such
conversion. Whatever estate devolved upon him at his birth was an
estate in the property in its then condition. That property had
then ceased to be realty; it had become, by the sale, converted
into personalty. All that was then required for the protection of
his interest in it was the appointment of a guardian to take
possession of his proportion, and such a proceeding was had. A
guardian was appointed, and upon a supplemental bill, the original
decree was so far modified as to provide for the child having an
equal interest in the fund obtained with the other children.
But there is another answer to the objection. Assuming that
Page 91 U. S. 641
the child, before its birth, whilst still
en ventre sa
mere, possessed such a contingent interest in the property as
required his representation in the suit for its sale, he was thus
represented, according to the law which obtains in Virginia, by the
children in being at the time who were then entitled to the
possession of the estate. Parties in being possessing an estate of
inheritance are there regarded as so far representing all persons
who, being afterwards born, may have interests in the same that a
decree binding them will also bind the after-born parties. In the
case of
Franklin v. Davis, which is reported in the 18th
of Grattan, this subject is elaborately and learnedly considered.
In that case a trust estate created for the benefit of a man and
his wife during their joint lives and the life of the survivor of
them, and of their children living at the death of the survivor,
and of the descendants of such of the children as might be then
dead, had been sold by a decree of the Circuit Court of Richmond,
rendered in a suit for that purpose brought by the surviving widow,
in which the children were made parties, but in which no one
appeared to protect the interests of any of their descendants, and
the court held that the sale was valid and that the descendants of
any child dying in the lifetime of the surviving widow were bound
by the decree on the ground that the children were to be considered
as representing before the court any of their descendants who might
upon their death become entitled under the trusts of the deed.
The statute of Virginia, as additional security against
improvident proceedings for the sale of an infant's estate,
requires that all those who would be heirs or distributees of the
infant, if dead, shall be made parties. This requirement was met in
the case under consideration, for upon the death of either child,
the mother and other child would have been its heirs and the
distributees of its estate.
With the investment of the proceeds of the sale the purchaser
under the decree had no concern. A purchaser at a judicial sale is
not bound in any case to see to the application of the purchase
money. That is under the control of the court, and the title of the
purchaser is not affected, however unwise or illegal the
disposition of the money.
Page 91 U. S. 642
The case of
Horn v.
Lockhart, 17 Wall. 570, which is invoked by the
appellants, lends no support to their pretensions. That was the
case of an executor in Alabama seeking to escape an accounting and
payment to legatees of proceeds of property of the estate in his
hands sold previous to the war and retained by him for years after
he had been called to a final account by the probate court of the
state by alleging a voluntary investment of the proceeds in bonds
of the Confederate government. Those bonds were issued for the
express purpose of raising funds to carry on the war then waged
against the United States. The investment was therefore held to be
illegal because it constituted a direct contribution to the
resources of the Confederate government, thus giving aid and
comfort to the enemies of the United States, and the character of
the transaction in this respect was not deemed to have been changed
by the fact that the investment was authorized by the existing
legislation of the state, and was approved by the subsequent decree
of its probate court. A voluntary proceeding in aid of a
treasonable organization could not be thus freed from its original
unlawfulness.
There is no analogy between that case and the one at bar. Here,
no action is sought to be upheld which was taken in aid of the
insurrectionary government. The sale in question was not made with
any reference to that government, but solely to raise a fund which
would yield an income for the support of the widow and children,
and was therefore a lawful proceeding.
The widow and the guardian were not compelled to take the bonds
of the Confederate government; they were allowed the option of
investing in such bonds, or bonds of any of the states of the
Confederacy, or bonds of the City of Richmond. Having deliberately
selected the securities of the insurrectionary government in which
to place their money, it would be a strange thing if complaints
could now be heard from them against the title of the purchaser of
the property, who had nothing to do with the disposition of the
money, on the ground that the court did not preserve them from the
folly of that investment.
Decree affirmed.