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comes within the scope of juridical action, but the power of the courts of law, or their modes of procedure, are inadequate to furnish a complete remedy. It may be that an instance cannot be cited where a court of equity has been called upon to take jurisdiction and render relief in a case in all its aspects precisely the same as the case at bar, but that does not furnish a sufficient reason for declaring the jurisdiction does not exist. The expressions of this court in the case of Dodge v. Cole, 97 Ill. 338, are here in point. It was there said (p. 364): “The jurisdiction of a court of equity does not depend upon the mere accident whether the court has, in some previous case or at some distant period of time, granted relief under similar circumstances, but rather upon the necessities of mankind and the great principles of natural justice, which are recognized by the courts as a part of the law of the land, and which are applicable alike to all conditions of society, all ages and all people.
Where it is clear the circumstances of the case in hand require an application of those principles, the fact that no precedent can be found in which relief has been granted under a similar state of facts is no reason for refusing it.”
We think it may be laid down as an unfailing rule that equity will take jurisdiction in all cases where a right recognized by municipal law exists and courts of law do not provide an adequate remedy for the enforcement,
ntenance and protection of that right, hence we think the court had jurisdiction to entertain the bill. Was it lacking in power to award relief?
It is suggested that in the case at bar it was the intention of the testator, to be gathered from the will, that the real estate here involved should not be alienated, but that the estate should be preserved intact and should so de. scend and vest in the remainder-man, and that in such case a court of equity is without power to break in upon the will and sell the land. There is no express denial of the right of alienation in the will, but it is manifest it was
the expectation of the testator, even if he had not formed a deliberate intention to that effect, that the property should be preserved intact and so descend to and vest in the remainder-man. But we think it well settled that a court of equity, if it has jurisdiction in a given cause, can not be deemed lacking in power to order the sale of real estate which is the subject of a trust, on the ground, alone, that the limitations of the instrument creating the trust expressly deny the power of alienation. It is true, the exercise of that power can only be justified by some exigency which makes the action of the court, in a sense, indispensable to the preservation of the interests of the parties in the subject matter of the trust, or, possibly, in case of some other necessity of the most urgent character. The jurisdiction and power of a court of chancery in this respect were the subject of discussion in this court in Curtiss v. Brown, 29 Ill. 201, Voris v. Sloan, 68 id. 588, and Hale v. Hale, 146 id. 227, and the conclusion reached in each of such cases is in harmony with the view herein before expressed, that courts in equity have full power to entertain bills and grant relief in such cases as that at bar. In the first of these cases it was said (p. 230): “Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had he anticipated the emergency. necessity a power must exist somewhere in the community to grant relief in such cases of absolute necessity, and under our system of jurisprudence that power is vested in the court of chancery."
It is urged that in each of the cases cited the court took jurisdiction for the reason a trust was involved, and, having thus obtained jurisdiction, exercised power to sell
From very the trust property on the ground that, having jurisdiction, power to grant full relief followed. Even if the only source of jurisdiction in the cases arose out of the fact that a trust was involved, still that fact did not operate to invest the court with power, in dealing with the property, other than it would have had had the jurisdiction arisen under any of the other heads of equitable jurisdiction. If we are right in the view that the court had jurisdiction, in the case at bar, to entertain the cause, no reason is perceived why it should be deemed lacking in power to grant the same character of relief as was rightly exercised in the cases cited.
We think the evidence in the case at bar disclosed it was essential to the preservation of the rights and interests of all who are, or who, upon the contingency named in the will, may become, interested in the land, that the power so possessed should be exercised by the court.
The question remaining to be determined is, whether the decree is binding upon any child or children that may be born to the defendant in error.
It is a general rule that all parties having an interest in the subject matter of a proceeding must be made parties to the proceeding and be brought before the court, either as complainants or defendants. In this case all parties in being who have such interest are before the court and bound by the decree. But it is suggested that in the event a child or children be born to the said Susanna Curtin, such child or children will be seized of a remainder in fee, and that the decree will be ineffectual to protect those purchasing under it against the right of such child or children. Such possible child or children of the said Susanna Curtin not being in esse, cannot, of course, be made parties to the proceeding, and unless the decree may be made to operate against them if they ever come into existence, the condition presented is that the rights and interests of persons in being are to be sacrificed and lost upon the sole ground it is possible that
others may come into being and become interested in the subject matter of the litigation. The evidence in the case discloses that the estate for life vested in Mrs. Curtin, and the remainder, which is to vest either in her children, if any are born to her, or to her three brothers if she have no children, is to be lost to all who are or may be interested unless the intervention of judicial power shall avail to preserve and protect it. The proceeding is for the purpose of saving and preserving the property rights of all those interested or to become interested therein under the will. In that purpose all the parties before the court are alike interested. The parties in esse have the same incentive and interest to accomplish the same purpose as would move and possess the parties not in esse if they were in being. The possible persons not in esse are therefore represented by the parties before the court, and if they ever come into being will be bound and concluded by the decree.
This court had occasion to consider the doctrine of representation of parties not in esse in Hale v. Hale, supra, where we said (p. 259): "Especially is this doctrine applicable where the persons not before the court are only possible parties not in esse, and where the interests of all parties in being require a decree which will completely and finally dispose of the subject matter of the litigation. Such possible parties cannot, as a matter of course, be brought before the court in person, and it would be highly inconvenient and unjust that the rights of all parties in being should be required to await the possible birth of new claimants until the possibility of such birth has become extinct. If persons in being are before the court who have the same interest and are equally certain to bring forward the entire merits of the question, and thus give such interests effective protection, the dictates both of convenience and justice require that there should be a complete decree." And also cited with approval the following observations of the court in Bofil v. Fisher, 3
Rich. Eq. 1, viz.: “But the question is, whether the court has the power, by its decrees, to alienate the contingent titles of unborn remainder-men, who, from the nature of things, cannot be made parties or be represented in the proceedings before the court, or to alienate the contingent titles of persons who, though in esse, are resident in other States or in foreign lands-whose residences and even whose names are unknown. To say that the court could not, under circumstances like these, convey away the fee, would be to assert a doctrine that would render conditional limitations and contingent remainders an intolerable evil to a growing and prosperous community. Thus to shackle estates, without the power of relief unless every person having a contingent and possible interest could be brought before the court, would be to sacrifice the rights and interest of the present generation to those of posterity, and of citizens to aliens. If the whole property of the country were thus situated, it is obvious that all improvement and advance would be completely checked.” See, also, 17 Am. & Eng. Ency. of Law, p. 728, and many authorities cited in note.
The bill in this case sets forth correctly the rights of any child or children which may be born to the said defendant in error, and the prayer is so framed as to call upon the court to protect such right, and the decree declares and establishes their rights and makes full provision for the protection of the interests of such possible after-born children. The following quotation from the opinion of the court in Hale v. Hale, supra, (p. 260,) is here significantly appropriate: “The rights of those in esse and those not in esse are protected by the decree in precisely the same way and to the same extent. In case of neither are those rights defeated or denied, but they are expressly affirmed, the effect of the decree being to authorize the conversion of the lands in this State into personal property, and when such conversion is made it merely transfers the equitable rights of all these residu