way. There is nothing to show there was anything nearer to the place where this occurred, maintained by the city as a public way, than this walkway 17 or 18 feet away."

The plaintiff appealed upon exceptions which will be reported.

Before proceeding to consider the questions at issue, it may be well to show the policy of the State in regard to playgrounds and parks. In Irvine v. Greenwood, 89 S. C. 511, 72 S. E. 228, 36 L. R. A. (N. S.) 363, the mismanagement of the municipality consisted in leaving an electric light pole in the street, from which a metallic chain connected with the wire hung so low that it was caught by the plaintiff, who was killed by the electric current.

The injury did not take place in a regular park, but in a street which was being used by the children engaged in the game, as a temporary playground, yet the Court used this language:

"There can be no doubt that the main purpose of streets and roads is for travel. They serve this purpose, not only as avenues of traffic and of social communication, but as a means for the people to obtain, at will, the pleasurable sensation of locomotion and change of scene and environment.

* Children and youths have always used streets for their sports, subject to the regulation of municipal ordinance, and subject to the use of the streets for the other purposes above set out. To vast numbers of boys and girls the street affords the only place of sport, and the only outlook from a pent-up home. The interest of the State is no less vital that these boys and girls should have a place for development of body and spirit by out-of-door sport than its interest that they should have the public school as a place for mental training. Indeed, it is not to be doubted that arrested and abnormal development of men and women, which results in the great burden of crime borne by society, is due largely to the lack of park and playgrounds, where the joy of activity in the fresh air may be found."

3 S. C. 115.

Section 3053 of the Code of Laws is as follows:

"Any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under control of the corporation within the limits of any town or city, may recover, in an action against the same, the amounts of actual damages sustained by him by reason thereof: ***Provided, The said corporation shall not be liable unless such defect was occasioned by its neglect or mismanagement: Provided, further, Such person has not in any way brought about any such injury or damage by his or her own negligent act or negligently contributed thereto."

The action was brought under this statute.

The cases of Irvine v. Greenwood, 89 S. C. 511, 72 S. E. 228, 36 L. R. A. (N. S.) 363, and Stone v. Florence, 94 S. C. 375, 78 S. E. 23, are conclusive of the proposition, that public playgrounds and parks come within the provisions of said section; and that it is the duty of a municipality to keep them reasonably safe, in order that they may serve their intended purpose. In the case of Irvine v. Greenwood, supra, this Court said:

"We are unable to give the duty of keeping streets in repair the narrow meaning contended for by respondents. To keep a street in repair means to keep it in such physical condition that it will be reasonably safe for street purposes."

The same principle applies to a park; it must be kept reasonably safe for park purposes.

The streets, sidewalks, grassplots, etc., in a park, are merely its compotent parts; and, in order to determine whether the municipality is guilty of negligence, its conduct must be considered with reference to the entire park, and not merely in connection with a particular street. The grassplot over which the plaintiff crossed, to get

1

April Term, 1920.

the caps, was as much a part of the park as the street he was then using.

As the ruling of his Honor, the presiding Judge, was contrary to this principle, it was erroneous. In determining the question, whether there was testimony tending to

show negligence on the part of the city of Columbia, 2 the tender age of the plaintiff must be taken into consideration. There was testimony to the effect that the plaintiff saw the caps on the window sill, about 18 feet from the sidewalk where he was walking; that h did not go beyond the limits of the park, in order to ge

the caps.

Whether there was negligence on the part of the city of Columbia in maintaining on its premises a dangerous instrumentality, calculated to attract the youthful instincts of the

plaintiff, and whether he was guilty of negligence 3 that contributed to his injury, were questions for

the jury. Franks v. So. Cotton Oil Co. 78 S. C. 10, 58 S. E. 960, 12 L. R. A. (N. S.) 468; Sexton v. Noll Construction Co., 108 S. C. 516, 95 S. E. 129; McLendon v. Hampton Cotton Mills, 109 S. C. 238, 95 S. E. 781. Reversed.

10507

CAGLE ET AL. v. SCHAEFER ET AL.

(104 S. E. 321).

1. INFANTS GUARDIAN AD LITEM SHOULD DO MORE THAN FILE A FORMAL ANSWER.—A guardian ad litem is bound to look after the infant's interest and to act for him in all matters relating to the suit as the infant might act if of capacity; and the mere filing of a formal answer submitting the infant's rights to the protection of the Court, is not a sufficient compliance with the guardian's duty. 2. REMAINDERS - FOR PROTECTION OF ESTATE COURT OF EQUITY MAY ORDER SALE OF LAND.-Where Court of equity has before it all the parties in interest who are in esse, it may for protection of an estate order the sale of lands which are subject to remainders, etc., and a

possible trust, but the power cannot be exercised save in case of a reasonable necessity.

3. REMAINDERS - DISCRETION OF COURT IN SELLING ESTATE MUST BE EXERCISED ACCORDING TO ESTAblished Rule.-A Court of equity, in directing the sale of lands which are subject to future interests and remainders, cannot exercise its discretion in an arbitrary or capricious manner, but is governed by the established rules and principles of equity.

4. REMAINDERS-SALE OF LAND SUBJECT TO REMAINDERS NOT WARRANTED. Where a testator devised lands to his son for life, with remainders over to the issue of the son, providing that in default of issue the land should be subjected to a trust, a Court of equity should not order a sale of lands at the instance of the son, who had considerably improved them, where there was no showing that sale was necessary for benefit of the estate or any of the beneficiaries. 5. REMAINDERS-SALE OF LAND SUBJECT TO, IMPROPERLY AUTHORIZED.— Where a life tenant improved lands, and it further appeared that the lands themselves were constantly enhancing in value, a sale should not be ordered at the instance of the life tenant, who desired reimbursement for improvements, on the theory that the sale was necessary to protect the estate, because he was under no duty to insure the buildings; it in no wise appearing that the interests of the remaindermen were in jeopardy.

6. CONVERSION-THAT TESTATOR PUT VALUE ON LANDS DEVISED TO SON FOR LIFE DID NOT WORK EQUITABLE CONVERSION.-Where a testator placed a value on lands devised to his son for life, with remainders over, etc., the placing of such value, which was for the purpose of adjusting advancements, etc., did not amount to an equitable conversion which would warrant a Court in authorizing the son to sell the lands.

7. LIFE ESTATE-LIFE TENANT NOT ENTITLED TO REIMBURSEMENT FOR IMPROVEMENTS.-Ordinarily a life tenant cannot charge the estate of the remaindermen with the cost of his improvements, so where a testator, who had placed his son in possession of lands, devised them to him for life, remainders to his issue, with a trust provision in default, the son, who had made improvements during the life of the testator and additional improvements thereafter, cannot charge the estates in remainder with the cost of such improvements, although those interested in the trust consented and the son as yet had no children; the possibility of issue not being extinct, and it not appearing that he made the improvements in reliance upon any misapprehension as to the intention of the testator.

8. LIFE ESTATE-LIFE TENANT CAN ONLY RECOVER AMOUNT IMPROVEMENT ADDED TO PROPERTY.-A life tenant cannot recover the amount

of cost of improvements, even though he comes within an exception which allows him to recover for improvements, but is limited to recovering the amount which the improvements added to the actual and permanent value of the land.

Before SHIPP, J., Greenville, February, 1920. Reversed.

Action by Alex. Cagle and Lillie O. Cagle against G. H. Schaefer et al. for specific performance. From judgment for plaintiff against the defendant, Schaefer, said defendant appeals.

Mr. W. M. Walters for appellant. No citations.
Mr. J. J. McSwain, for plaintiffs-respondents.

October 11, 1920.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

This is an action for specific performance of a contract between plaintiff, Alex. Cagle, and defendant, Schaefer, for the sale of 18 2-5 acres of land, part of a larger tract of 263 acres, known as the Parkins place, which was devised to plaintiff by his father for life, remainder over. Defendant refused to comply, on the ground that plaintiff could not convey a good title in fee, according to the contract. The Court decreed specific performance, and defendant appealed.

J. W. Cagle had three sons, Alex., Wilkins, and Osborne, all of whom were married. Neither Alex. nor Wilkins had any children, though each had been married six or eight years before their father's death. Osborne had five children. The father died about 1912, leaving of force his will, wherein (paragraph 3) he directed his executors to divide the residue of his personal estate (after paying his debts and legacies) into three equal parts, and give one part