Rieman v. Von Kapff

Robinson, J., delivered the opinion of the Court. There cannot be, it seems to us, any difficulty as to the appellees’ title to the property in question. The late John M. Duncan, it appears, was the owner of three undivided sevenths in this property, and the remaining four-sevenths belonged to his three daughters, Helen, Margaret, and Emily. The father devised and bequeathed his undivided three-sevenths to his wife for life, and upon her death to such of his daughters as should be unmarried; and, on the death or marriage of .any of his daughters, the estate of the daughter so dying or marrying, was to go to the unmarried daughters or daughter; and on the death or marriage of the last daughter, the said three undivided sevenths were to be divided among all his daughters then living and the issue of any who might be dead. ‘ The widow died in 1855, leaving five daughters, Helen, Margaret, Emily, Jane, and Eliza Veazey, widow of George Veazey, who had at that time three children, George, I. Parker, and Duncan Veazey, all of whom were infants. ⁴¹⁹ In 1863 a bill was filed by the three daughters, Helen, Margaret and Emily, alleging that they had, with the consent and concurrence of their two sisters, Jane, and Eliza Veazey, contracted to sell the entire property to Herman Von Kapff for the sum of ten thousand five hundred dollars, but that, upon an examination of the title of said property, he had refused to comply with the contract of sale, unless he could be protected against the claims or interests of the issue of the daughters of John M. Duncan then in esse, and such as might thereafter be born; that the property was unproductive, yielding but little, if any, income, and that a sale thereof would be to the interest and advantage of all the parties.

They, therefore, prayed that a decree might be passed for the sale of the property, in compliance with the terms of the contract made with Von Kapff, and that so much of the purchase money as may be necessary to protect and secure the rights and claims of all persons who may now have, or hereafter have, any interest, contingent or otherwise, in said property, shall be invested, and for such other relief, &c. This bill was filed under the Act of 1862, chapter 156, which provides, that when any person or persons is or are entitled to an estate for life or for years, and any other person or persons is or are entitled to any interest, vested or contingent, or otherwise in any property, a Court of equity, upon the application of one or more of the parties in interest, may decree the sale thereof, if it shall appear that such sale is to the advantage and interest of said parties, and provided that all persons in interest and in being shall be made parties. The Act further provides that a sale made in pursuance thereof shall bind all parties in esse or thereafter to be born. To the bill thus filed, the two sisters, Jane, and Eliza Veazey, and the three infant children of the latter, George, I. Parker, and Duncan Veazey, were made de ⁴²⁰ fendants, and under a commission issued to Louis C. Fischer, commissioner, David Fowler was appointed guardian ad litem, for said infants.

The joint and separate answer of the three infant defendants, or a paper at least purporting to he their answer, was filed by the guardian ad litem, hut by some oversight the guardian omitted to sign said paper. It appears, however, that the guardian made oath before the commissioner that the matters and things stated in said answer were true to the best of his knowledge and belief; and the commissioner, in his return to the Court, certifies that he had ‘‘taken the joint and separate answers of the three infants, George, I. Parker, and Duncan Veazey, by their guardian, David Fowler, in writing.” And the paper thus filed was treated by the Court as the answer of said infants by their guardian ad litem. A few days after the answer had been filed an amended bill was filed by the complainants, in which, after referring to and adopting the hill heretofore filed, and all the allegations therein contained,