McGowan v. Watertown, 130 Wis. 555. all of the elements asked to be submitted by these three questions. The jury were told to consider what barriers had been erected, what lamps had been supplied, and whether those lamps or either of them had become extinguished, and whether, as they found all of such facts to be, the result was a condition of reasonable safety for persons traveling the street in the exercise of due care; also whether such insufficiency as they found to exist had occurred so recently as to excuse defendant from curing it. The form of the special verdict is very much in the discretion of the court, and, in all ordinary cases of injury from alleged defects in highways, the question submitted by the court is sufficient to cover all the elements suggested by these requested questions. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Byington v. Merrill, 112 Wis. 211, 88 N. W. 26; Baxter v. Krainik, 126 Wis. 421, 105 N. W. 803. True, there may be facts put in issue by the pleadings of such a character that, in the absence of request for their special submission, they might be deemed covered adequately by the general question, but which should be submitted by separate question if so requested. Schrunk v. St. Joseph, 120 Wis. 223, 229, 97 N. W. 946; Jenewein v. Irving, 122 Wis. 228, 235, 99 N. W. 346, 903; Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777. But those now under consideration are not at all of that character. In the first place, the existence or nonexistence of a light or lights is not in issue by the pleadings, the only allegation therein being the existence of a trench not properly inclosed or guarded by other proper precautions, which is met merely by the general denial. Besides, the jury were so carefully instructed that they must have passed upon these questions in answering the general question which was submitted to them by the court. 3. We can discover no ground for reversal in the error assigned upon ultimately refusing to join as parties defendant the persons who, under license from the city, dug this trench, and who, by virtue of an ordinance and bond, were required In re Kingston's Estate, 130 Wis. 560. by the city to take certain specified precautions and to reimburse the city for any damages which might fall upon it by reason of their default therein. The liability of such third parties was at best secondary, and was a liability on contract to the city. Their presence or absence in the present action could have no effect upon the rights of the plaintiff or the liability of the city to him. Hence the defendant is in no wise prejudiced by the refusal of the court to join them as additional defendants, even if such joinder were permissible, which we do not decide. We find no prejudicial error, and, therefore, IN RE KINGSTON'S ESTATE. January 11-January 29, 1907. Remainders: Sale under order of court: Procedure: Statutes: Construction. 1. Under ch. 300, Laws of 1899, authorizing a sale of future contingent interests in land in all cases wherein the court may find a sale to be substantially promotive of the interests of the parties, it was not intended to confer upon courts powers additional to those theretofore exercised for the sale of interests in lands, but to prescribe a procedure to effect such sales; and hence interests in remainder belonging to the children of a devisee for life, or, should he die without issue, to testator's children or their issue, cannot be ordered sold in such a way as will result in a complete separation of such remainder from the life estate. 2. In such case, if some disposition of an interest in the estate must be made for the purpose of obtaining funds to discharge liens and claims created against it by the testator, and for its preservation, it is proper to raise the necessary sums by mortgage or by a sale of part or all of the estate, and to appropriate so much of the proceeds as may be required to free it from such liens or claims to that purpose, the remainder to be kept in lieu of the real estate and held for the use and benefit of the parties as intended by the testator in his devise of the real estate. In re Kingston's Estate, 130 Wis. 560. APPEAL from an order of the circuit court for Waukesha county: JAMES J. DICK, Circuit Judge. Reversed. William Kingston died testate January 14, 1902. He left real estate consisting of two farms. In his will various bequests were made, and they, as well as the debts and a mortgage upon the lands, were made a charge against the real estate, which was disposed of as follows: One farm was devised to the testator's son Goodhand in fee. To another son, Thomas, a life estate in another farm was devised, with remainder to his son's issue living at the time of his death, and, in the event of his leaving no living issue, then remainder over to the children of the testator and to the child or children of any deceased child by right of representation. The will was duly admitted to probate and the sons Goodhand and Thomas were appointed executors. On November 28, 1903, the county court made an order, on petition of one of the legatees, requiring the executors to apply within sixty days to said court for a judicial construction of the will and for license to sell so much of or such parts or interest in the estate as would be proper for the purpose of satisfying the charges against the lands. The bequests made by the will, the debts of the testator, and a mortgage upon the lands were made a charge by the will upon the real estate of the testator; one half the farm devised to Goodhand and one half upon the farm in which Thomas was given a life estate. Before the executors had complied with the order of the county court Thomas Kingston applied to the circuit court under ch. 300, Laws of 1899, for an order for the sale of the interests of the remaindermen in the estate, alleging that he had been unable to raise money on his life estate to pay the charges against the land, and also alleging that the remaindermen would be benefited by a sale of their interests. The court entertained the application and appointed a referee for the purpose of effecting a sale, and also appointed a referee to inquire into and report to the court upon the matters alleged in the appli upon VOL. 130-36 In re Kingston's Estate, 130 Wis. 560. cation. The referee found that the amount chargeable against the real estate in which Thomas Kingston was given a life estate amounted to $2,648.39; that the personal property in the hands of the executors was wholly inadequate to pay the charges against the estate; that owing to the peculiar provisions of the will it was impossible to raise funds upon this land by mortgage or otherwise to pay the charges; that the remaindermen's interests were liable to be jeopardized by the inability of the life tenant to protect them from waste and the demands of legatees and creditors; that the estates in remainder were unproductive, and that the interests of the owners would be benefited by a sale thereof. The court approved the findings of the referee and ordered a sale of the interests of the remaindermen. This is an appeal from the order directing such a sale. For the appellants the cause was submitted on the brief of Connell & Weidner, attorneys, and a separate brief by T. E. Ryan, guardian ad litem, and for the respondent on that of Tullar & Lockney. SIEBECKER, J. The petitioner asks the court to authorize a sale of all the estates in remainder in the real estate described in the application, in which he is given a life estate by the will of his deceased father. The petition alleges that petitioner is unable to pay the charges against this property under the provisions of his father's will; that because the title is held by various parties he is unable, by loan upon his interest, to obtain an amount to pay such charges; and that a sale of the estates in remainder would promote the interests of such owners by protecting them from threatened loss and possible destruction of their interests. Manifestly petitioner proceeds upon the theory that ch. 300, Laws of 1899, authorizes a sale of such interests in all cases wherein the court may find a sale to be substantially promotive of the interests of such parties. An attempt to grant such power to the courts, to in In re Kingston's Estate, 130 Wis. 560. voluntarily alienate the title to real estate, would seemingly be an improper interference with private vested rights and be of doubtful validity. If the legislature intended to confer such a power, the grant should appear in clear and explicit terms in the act. An examination of the context of the statute does not disclose such an intent of the legislature in clear and unmistakable terms. The purpose expressed in its provisions is in harmony with the idea of providing a method by which the title to property of persons under legal disability can be alienated in cases theretofore well recognized in the law, for the promotion of the interests of such owners, by preserving the subject and title of such estates when subjected to peril of loss and destruction, which can only be avoided by a sale and an application of the proceeds to the relief of the estate from such danger. The provisions of the act are mainly regulative of such proceedings, and are appropriate to effect an involuntary alienation of the title to real property in these well-recognized cases. The object to which the provisions are addressed is to furnish a method of turning land into money, and, as an incident thereto, to free the land from its burdens and preserve the proceeds in solido, keep them invested for the benefit of those who are or might become interested in the land, and to hold the proceeds and treat them with respect to the rights and interests of the parties as standing in lieu of the land. A consideration of these provisions and the general object of the statute, as gathered from the context, convinces us that it was not intended to confer on the courts additional powers to those now exercised for the sale of interests in lands, but that the statute should be restricted to prescribing a procedure to effect such sales. In this view of the statute, the primary inquiry arises as to whether petitioner has shown good ground upon which the court may direct a sale of the interests in remainder created by the will. Under the will petitioner owns a life estate in the property; upon his death, remainder over in fee to his living issue, and, in case he leaves |