Walton v. Torrey

Whether the children of Jesse Hicks, deceased, the complainants in this case, take as heirs or devisees, they take an estate in presentí, and whatever interest they have, it is competent for them to convey. The provision in the will, that it should remain undivided, is not- such a limitation as would inhibit any one from conveying whatever interest he possessed. ' Provisions in restraint of alienation, are not to be favored. Whether any purchaser could enforce a partition before the youngest child became of age, so long as either of the heirs, or devisees retained his interest, is a question that does not arise in this case. The interests being then alienable, it was within the jurisdiction of the judge of probate to decree a sale of the right, title and interest of the two minors, Adaline and Theodore E. Hicks, upon a case being made, upon the happening of which, the statute authorized the sale of the lands of minors, for their support and maintenance.

The proceedings appear to have been regular.

The decree of the judge of probate stands of force, and not appealed from.

It is too late, therefore, 'to interfere with the decree. As to the sale and purchase in fact, by Lamed and Torrey, Torrey having been the judge of probate who granted the order, I have had some doubt. But the case of Devaux vs. Fanning, 2 Johns. Ch. R., 268, goes the full length of declaring such a sale void.

It is placed upon the ground of disability to purchase, arising from the office which the purchaser held. And the case quoted by Chancellor Kent on that occasion, extends the disability to guardians, judicial officers, and all other persons who in any respect, as agents, had a concern in the disposition and sale of the property of others, whether the sale was public or private, judicial or otherwise.

What is the case here! The defendant, Torrey, acting as judge of probate, having previously acquired certain portions of this property, makes the order for the sale of the shares, of these minor heirs. He becomes a joint purchaser through Sawyer.

If there is any wisdom or justice in the rule, it seems to me *264that this' presents a very proper ease for its application. Without attributing any intention to commit a fraud, and there is nothing from which to infer it in this case, it seems that' there can be no office or trust which would present stronger temptations for abuse, than that of the one occupied by Tor'rey, if the real estates of minors could be directed to' be sold and purchased by the same individual. As to this portion of the case then, I am disposed to follow the course pursued in the case of Devaux vs. Fanning. As to the claim of Mrs. Blanchard and Mrs, Downer, the daughters of the deceased, they are alleged to have been minors at the time of the execution of the deed. As the result, in this respect, must depend upon the establishment of the fact of minority, an issue must be directed to try that fact. The shares of the two minor children, Adaline and Theodore E. Hicks, must be put up for sale, under the direction of the master, at the same price at which they were sold to Lamed and Torrey,.as a minimum, if no more is offered, the former sale to stand confirmed; if more is offered, the master to proceed to sell the same; and upon being paid the consideration, to execute a deed thereof to the purchaser, and to bring the money arising from such sale, into court to abide the further order of the court in the premises. As to the sales made by the other complainants, there is no ground for the interference of this court in the premises.

The injunction heretofore granted in this cause, to be dissolved..