
    
      Edward R. Laurens ads. Robert Jenney and others.
    
    1. J. Hi devised aiid bequeathed all his estate, real and personal, to certain persons therein named, who were also his executors, in trust, to “ have and hold the same, for the use and benefit, and to apply the rents, issues and profits to and for each of the children of my beloved brother, M. J., and of my deceased brother, W. J., to each of the said children, now living, and to the children of any deceased child, who may have died, leaving issue, lawfully begotten, and to the survivors or survivor of them, share and share alike.”
    2. M. J. had several children living at the death of the testator, all of whom were their aliens. R. X, one of the plaintiffs, is the sole survivor of the children of M. J., and was naturalized in 1831. The minors, H. Gr.' and Gr. F., the other plaintiffs, are children, respectively, of deceased daughters of M. X, born here, after the decease of the testator. M. X died an alien, and his family settled on the land in dispute, about 1819. Plaintiffs claimed as devisees under the will. The land was subsequently sold under an execution by the sheriff, in pursuance of a decree in equity against A. E., the surviving executor of J. H. Defendant claimed under the purchaser at this sale. Held by the court that the devise was executed by the Statute of Uses, and that the devisees of X H. were under no legal incapacity to taire the land.
    3. An alien can take by purchase, but not by descent; and he can hold against all the world, until his title is divested by escheat.
    4. But if he were out of possession, it would seem he can maintain no action to recover it. ■
    5. Bill filed in 1825, by the creditors of H. J., deceased, a son of testator, against A. H., surviving executor of testator, and legatees of X H.j.for the purpose of subjecting the estate to the payment of their demands. It was charged that the debts were incurred for supplies furnished for the devisees of J. H, and applied to the use of all of them. The devisees were not named,' individually, in the bill, nor was títere any return of process served on any person as legatee of J. H. Decree that the debts due to the complainants be paid out of the estate of the testator with costs of suit. Land in dispute sold by the sheriff. Held, that the title of A. H., alone, was sold, and that the rights of the plaintiffs were in no way affected by the decree.
    6. A trust will be executed, unless the object of creating it would be defeated, as in the cases of trusts for married women, and to preserve contingent remainders, or where the trustee has some discretion to be exercised in relation to the estate, or the manner of applying the proceeds.
    7. It is not sufficient to prevent the estate from being executed, that there may be something for the trustee to do.
    
      Before Earle, J., at Charleston, May 'Term, 1841.
    Trespass to try title to a small farm near Charleston.— The title was admitted to have been in James Huston, in his life time, and at the time of his death, in 1819. Both parties, derive title under him; the plaintiffs as devisees under his will, dated in 1819, immediately before his death; and the defendant, under a purchase at a sheriff’s sale, made in pursuance of a decree, and other proceedings in equity, against Alexander England, surviving executor of James Huston.
    The testator, James Huston, devised and bequeathed all his estate, real and personal, to James O’Reilly, James White, and Alexander England, in trust, as expressed in the will, to “have and hold the same for the use and benefit, and to apply the rents, issues and profits thereof, to and for each of the children of Ms (the testator’s) beloved brother, Marmaduke Jenney, and of Ms deceased brother, Washington Jenney, to each of the children, noio living, and to the children of any deceased child, who may have died, leaving issue, lawfully begotten, and to the survivors or survivor of them, share and share alike.”
    Marmaduke Jenney had several children living at the death of the testator, of whom the plaintiff, Robert Jenney, is, at this time, the sole survivor. The minors, Harriet Gitsinger and George Francis, are children, respectively, of deceased daughters of Marmaduke Jenney. His eldest son, Henry Jenney, died in 1824, without issue. Marmaduke Jenney and his children were all born in Ireland. — He came to Charleston before the death of James Huston, but did not live long. His family came soon after him, and all of them settled on the farm, now in dispute, about the year 1819, and they continued to occupy and claim it afterwards, until in fact, the late Judge Colcock purchased, and succeeded in obtaining possession of it. The defendant entered under his title as a subsequent purchaser.
    James Huston was a naturalized citizen at the time of his death. Marmaduke Jenney died an alien. Henry Jenney gave notice of his intention to become a citizen in 1822 ; and the plaintiff, Robert Jenney, was naturalized in 1831. The mothers of the minors, Harriet Gitsinger and George Francis, do not appear to have been naturalized, but the minors, themselves, were born here, after the death of the testator, James Huston. The plaintiffs, therefore, either were all aliens, or claim under those who were aliens at the death of the testator.
    The defendant’s counsel moved for a non-suit, on the several grounds on which the motion is renewed in the Court of Appeals. His Honor thought the action should have been brought in the name of the surviving trustee, (now living,) yet as a serious question of title was involved, he preferred that the case should be decided on that, rather than on the form of the remedy.
    The defendant then exhibited his title, which was derived under certain proceedings in equity, and a decree thereon, of which, an abstract is subjoined. A bill was filed by Edmund O’JVeale, and sundry other persons, creditors of Henry Jenney, deceased, against Alexander England, surviving executor of James Huston, (and also the surviving trustee under the devise,) for the purpose of subjecting the estate to the payment of their demands. Henry Jenney was the elder brother of Roberi, the plaintiff, and was then the head of the family, for whose support it was alleged that the debts had been incurred. The bill was filed 20th October, 1825 ; and it was, thereupon, ordered and decreed^ that the debts due the complainants be paid out of the estate of the testator, with costs. There was a reference to the master, and, finally, a rule to show cause why the land should not be sold. The land was sold, and purchased, as already stated, by the late Judge Colcock; and the report of the sale was confirmed by the Court of Equity, about 1833 or 1834.
    To the validity of this title, sundry objections were urged to the court and jury; and the cause was submitted by the court to the jury, with instructions, that, in the opinion of the court, the defendant had made out a sufficient title, and that their verdict should be in his favor.— They thought otherwise, and found for the plaintiffs.
    The defendant appealed, and now moved to set aside the verdict, and renewed his motion for a non-suit, on the following grounds:
    1. That the devise in the will of James Huston, under which the plaintiff s claim, created an executory trust, and not a use executed by the statute; and the legal estate never having vested in the cestuys que use, the action should have been brought in the name of the trustee.
    2. That a use cannot be raised to an alien, and, therefore, if the terms of the devise had been such as to create a use executed, it could not have availed to vest a legal title in the cestuys que use, all of whom were proved, by the plaintiffs’s evidence, to have been aliens at the death of the testator.
    3. That if the will were, out of the way, yet the plaintiffs have no title, Robert Jenney, and those under whom both he and the infant plaintiffs claim, being aliens at the death of the testator, and incapable of taking by descent.
    The defendant also moved for a new trial on the same grounds, and also on the following additional grounds :
    1. That the land in dispute was clearly proved to have been regularly sold as the property of the testator, James Huston, under a decree in equity, against his executor, who was also trustee under the devise by which plaintiffs claim, authorizing such sale, and that it was duly conveyed to the purchaser, under whom the defendant claims, by virtue of the said decree; which decree and conveyance are binding on the heirs and devisees of the said James Huston, and all who claim under him, and would bar the title of the plaintiffs, even if the legal estate had been vested in them.
    . 2. That the case involved no question of disputed fact, but mere questions of law, which the jury have undertaken to decide, in direct opposition to the instruction of the court, and the verdict is plainly'contrary to law and evidence.
    [Copy op James Huston’s Will.]]
    In the name op God, Amen : I, James Huston, of the city of Charleston, in the State of South Carolina, being of sound mind and memory, but weak in body, and calling to mind the uncertainty of this life, do make, publish and declare, this, my last will and testament, hereby revoking all former wills by me made.
    And, first, I commend my immortal soul to Almighty God, through the infinite merits and intercession of our divine and ever blessed Redeemer', and as for the worldly estate, wherewith it has pleased God, in much abundance to bless me, I give, devise and bequeath, all my real and personal estate, of whatever nature, and wherever it may be, unto my respected friends, James O’Reilly, James White, and Alexander England, of the city .aforesaid, trustees, to them, jmd to the survivor of them, in full and absolute fee simple, forever. In trust, nevertheless, and to and for the following especial trust and confidence, viz:— That my said trustees, or the survivor of them, his heirs, executor's, or administrators, shall have and hold the same, for the use and benefit, and to apply the rents, issues and profits thereof, to and for each of the children of my beloved brother, Marmaduke Jenney, and of my deceased brother Washington Jenney, to each of the said children now living, and to the children of any deceased child who may have died leaving issue, lawfully begotten, and to the survivors or survivor of them, share and share alike. And I do hereby, nominate and appoint my friends, before named, viz: James O’Reilly, James White, and Alexander England, executors of this, my last will and testament, with ample power to them to do all things needful to carry into effect the foregoing provisions, charging them with the payment; out of my said estate, of all my just debts, if any there should be.
    In witness whereof, I have hereunto set my hand and seal, this twenty-sixth day of October, in the year of our Lord, one thousand eight hundred and nineteen, and forty-fourth of the Independence of the United States of America.
    JAMES HUSTON. [Seal.]
    Sigped, sealed, published and declared by the said testator, as and for his last will and testament, in presence of us, who., at his request, in his presence, and in the presence of each other, have hereunto subscribed our names, as witnesses, the words, “ James White,” between the 17th and 18th lines of first page, being first interlined; also, the words, “ or to the survivor's or survivor of them,” between third and fourth lines of 2d page, beizzg first interlined.. Robert Ogden, Joseph Cole, James McNamee, Dan’l. Maguien.
    Proved before Jaznes D. Mitchell, O. C. T. D., 10th November, 1819.
    November 13th, 1819, qualified James O’Reilly, and. James White, executors. November 21st, 1820, qualified Alexander England, executor.
    
      Ordinary’s Office, Charleston District, } June 3d, 1841. )
    
    I certify the foregoing to be a true copy of the will of James Huston, deceased, proved and recorded in this office.
    THOMAS LEHRE, Ordinary.
    
    
      Abstract of documentary evidence introduced by the defendant.
    
    Edmund O’Neale, et ad., creditors of Henry Jenney, versus Alexander England, surviving executor, and the legatees of James Huston. Bill in Equity, Charleston District, filed 20th October, 1825. Recites the will of James Huston ; states that Henry Jenney was indebted to the several complainants, respectively, and charges that the debts were incurred for supplies furnished for the devisees of James Huston, and applied to the use of all of them. Prays that the debts may be paid out of the estate; and that if Henry Jenney’s share be alone liable, partition may be made, and his share so applied. Bill prays process against Alexander England, surviving executor and trustee, and “ the legatees of James Huston,” without naming them. There is no return of any process to answer, served on any person, as “legatee of James Huston.”
    Alexander England’s answer to the foregoing bill, filed 12th May, 1826. Denies the liability of the estate for Henry Jenney’s debts, and insists that he had only an estate for life, which terminated on his death.
    Decree in the above cause by Chancellor DeSaussure, filed 8th October, 1828. After a full examination of the evidence and points of law, orders and decrees, “ that the debts due to the complainants be paid out of the estate of the testator, with costs of suit.”
    Order by Chancellor DeSaussure, 23d January, 1832, that the executor, Alexander England, shew cause why he has not performed the decree by paying the claims established, and why the real estate should not be sold for satisfaction thereof.
    Order by Chancellor J. Johnston, 19th May, 1834, that it be referred to the Master to inquire what funds are ap- ' plicable to the complainant’s claims, and the parties respectively entitled to receive the same.
    Report of Thomas O. Elliott, Master, filed 24th May, 1834, states the proceedings to the decree, and reports that a fi. fa. was sued out thereon, 2d May, 1832, under which the land now in dispute was levied on by the sheriff, and sold by him at his sales, in November, 1832, when it was bid off for $850, by Col. B. F. Hunt, who subsequently transferred his bid to Judge Colcock, and the title was, in consequence, made to the latter. The report states an account of the funds, and the parties entitled to them.
    Order by Chancellor J. Johnston, 24th May, 1834.— Confirms the report of Master Elliott, and orders the proceeds of the sheriff’s sale to be paid to the complainants.
    John B. Irving, Sheriff Charleston District, to the Hon. Charles J. Colcock. Conveyance in fee of the land in dispute, reciting levy and sale under a fi. fa. from the Court of Equity, in the foregoing suit. Consideration $850 ; dated 6th June, 1833 — recorded in Register M. C. office, 7th August, 1833, book F. 6, page 281.
    Baxley & Brewster, for the motion,
    cited the following authorities, 2 McCord, 254, 4 lb., 452 ; 1 Salkeld, 228 ; 7 T. R., 648 ; 2 Swanston, 391; Bacon’s Abr, Title Use E., 2; Gilbert on Uses, 43 ; Saunders on Uses, 60 ; Lewin on Trusts, 106; 4 McCox’d, 128 ; 1 Bailey’s Equity, 324 ; lb., 468.
    Northrop, contra.
    By the terms of the devise, the use was executed by the statute, of uses, and the legal estate was vested in the cestuys que use, and was in the suxn on the plaintiff. The result of the cases on the operation of the statute of uses in cases of wills, is not that the intention of the testator, that the legal estate shall vest in the first taker, shall prevent the operation of the statute, but that limitations in wills are executed by the Statute of Uses, unless in cases where the first taker is invested with some trust, the performance of which makes it necessary that he should retain the estate; 1 Powell on Devises, p. 217, note; Broughton vs. Langley, Salk., 679; Doedem Terry vs. Collier, 11 East., 380; case of Hester Smith, 4 McCord, 452; 3 Bos. <8; Pul. 178.
    
      The purpose and intention of the statute is to govern in decisions upon the terms used in a deed or devise; the mere use of the words, “ to apply,” cannot obviate the statute, no more than the words, “ rents, issues and profits,” no more than the terms, “ to permit and suffer,” when the principle of the rules of construction are contra, as in the case of a devise by trustees, for the separate use of a feme covert.
    
    In this case, the true construction must depend upon the main question, whether to effect the intention of the testator, (so far as consistent with the rules of law,) which was to benefit the children of his deceased and living brothers, it was necessary that the legal estate should be in the executors and trustees ; in other words, whether or not, if the statute did execute the use, the cestuys que trust, who were aliens, could take the real estate; and this, also, involves the question, whether, if they did take the legal estate, they could sustain an action of trespass to try title. The will devises and bequeaths real and personal property, and it is clear, that as aliens, they could take and hold in absolute possession, the personal property. It is, therefore, not necessary as to the personal property, that there should be any intervention of trustees. Then, as to the real property, if it be conceded that if they were not aliens the use would be executed, how does their alienage alter the rules of construction 1
    
    Aliens can take lands by purchase, i. e., by deed or devise, though not by operation of law, as by descent, and the authorities are redundant. Comyn’s Digest, 1 vol. p. 425, Estate, Letter I; Hargraves, Coke, Littleton, 2 b. n. 3 (fe 4; 6 Cruise, 7; 2 Wooddeson, 347; Fairfax's case, 7 Cranch, 608; Butler vs. Broum, 2 Johnson’s Cases in Error, 411 ; Sheafe vs. O'Neil, 1 Mass. Rep. 256; Craig vs. Radford, 3 Wheaton, 594; Craig vs. Lester, 3 Ibid, 563; Kent’s Commentaries, 2 vol. pp. 53, 61, 62; Groves vs. Gordon, 3 Brevard, 245 ; Vaux vs. Nesbii, 1 McC. Ch., 352; Heirs of Governeur vs. Robertson, 11 Wheaton, 382.
    In some of these cases, Fairfax, (fee., it is settled that an alien may take by devise and maintain action real, until office found — that until office found, the title of an alien is good against the world — that a conveyance by an alien be-» fore office found, is a good link in a chain of title — that uses can be raised to aliens, and that a case will not be taken out of the operation of the statute, to defeat the right of the sovereign to his escheat. In Saunders on Uses, p. 110, it is said that an alien could not be a trustee of real estate, “ because no person could stand seized to a use, but one who could execute a perfect estate in the law to the cestuys que use” but even this has been qualified by the decisions above cited, and the disability of an alien does not extend even so far now, Comyn’s Digest, 1, 427, “ if an alien purchase, the King is entitled, yet the estate is in him till office .found, that is, the King must divest the alien.” — ■ It is unreasonable to expect that courts of law shall alter their rules of construction as to wills, for no other purpose than to defeat an escheat. If so, it would lead to an absurdity in its general application, for whenever an alien took directly by express devise, the intention of the testator would be evident that the land devised was for the benefit of the alien, and the same reason existing, the court would have to make the executors trustees, and give them the legal estate by implication, to save the escheat. Now, what difference is there, whether the alien takes a legal estate by express terms or by their strict legal import according to well settled rules of construction!
    It is not pretended that the plaintiffs claim by descent, but under the terms of the will, and the third ground of appeal is irrelevant.
    As to the effect of the decree in equity, under which Colcock purchased, it is enough to say, that the devisees of Huston were not parties to the proceeding. It will not be gravely contended that a decree against executors of an estate, after they had delivered the property to the devisees, for debts of their own contracting, to which they were in no way parties, could bind them or the estate. Henry Jenney was not the appointed guardian of the family, and at most, he only had a life estate with a contingent interest in remainder.
    The decree was not against the executor for payment of debts due by the estate of Huston. Marlin vs. Latta, 4 McCord, 128; Spencer vs. The Bank of the State of South Carolina, 1 Bailey’s Equity Reports, 468, do not, therefore^ apply,
    
      Under the evidence, it appears that the plaintiff went into possession in 1819, and occupied the land till 1833 or 1834 : and aliens can get a good title as against all persons except the State, under the statute of limitations.
   Curia, per

Evans, J.

All the authorities agree, that an alien can take by purchase, but not by descent. By the deed or will, the estate is transferred from the former owner and his heirs to the alien, and he can hold against all the world until his title is divested by escheat. (Grove vs. Gordan, 3 Brev. 245; Ennas vs. Franklin, 2 Brev. 398; Vaux vs. Nesbit, 1 McCord’s C. R. 352; Fairfax vs. Hunter, 7 Cra. 603; 1 Mass. R. 256, and 12 Johns. 146.) But, if he were out of possession, it would seem, he can maintain no action to recover it. This results from his incapacity to maintain any real or mixed .action, and not from any incapacity to hold the land until the State shall see fit to determine his title by the process of escheat. There seems to me, therefore, to have been no legal disability in the devisees of James Huston to take this land, directly as an executed use, under the Statute of Uses, if, by the construction of the will, the devise was executed by the statute. The general rule, as stated in the elementary books, and to be collected from decided cases, is, that the statute executes the use in all cases where there is no act to be done, or discretion to be exercised by the trustee, which he cannot do or exercise, if the estate be another’s. As in the case of Sylvester vs. Wilson, 2 Term R. 444, where the devise, was to trustees, that they should yearly and every year take, and receive the rents, and that such rents and yearly profits should be applied to the sustenance and maintainance of the cestui que trust for life. Here, the object of the trust was to provide for the annual sustenance and maintainanceof the cestui que trust, and to enable the trustee to do this, it was necessary the estate should remain in him, that he. might annually and every year receive the rents and pro-, fits. So also, in trusts for the use of a married woman, or to preserve contingent remainders, the very end and design of the trust would be defeated if the statute executed it.

The words in the will of James Huston are “ to hold, to the use and benefit, and to apply the rents, issues and profits to and for each,” &c. The words “ to hold for the use and benefit,” would be clearly an executed trust, and all the difficulty arises from the use of the word “ apply.” In the case of Carwardine vs. Carwardine, 1 Eden R. 33, the devise was, that the trustees should receive the rents and profits to the use of A. This estate was held to be executed, although the word, “ receive” would seem, necessarily, to import that some act was to be done by the trustee. In Leicester vs. Leicester, 2 Taun. 109, the trust was, to pay or to permit and suffer. These latter words were held to convey an executed trust, although it seemed to have been admitted, that the word “ pay” should receive a contrary construction. And yet, to suffer or permit, implies some act or volition, (it may be of a mere passive character) to be performed by the trustees, as well as the words, “ pay the rents,” and in this case, the chief Justice expressed his surprise that a different construction should be given to. them. I have quoted these cases to shew, that it is not sufficient to prevent the estate from being executed, that there may be something for the trustee to do. I would rather think the rule may be laid down, that the trust will be executed, unless the object of creating it would be defeated, as in the cases of trusts for married women, and to preserve contingent remainders, or where the trustee has some discretion to be exercised in relation to the estate or the manner of applying the proceeds. Or, as was said by Chancellor Harper, in Posey vs. Cook, 1 Hill, 414, there must be some object to be effected by the estate’s remaining in the trustees. In this case, no discretion is to be exercised by the trustees; no control over the expenditure is given to them ; all they have to do is to apply the rents, by giving to each one his equal share ; when received, each of the legatees has an absolute control over his part, and I do not perceive any reason why, in this case, the estate should remain in the trustees, which would not equally apply if the words had been to “ receive the rents and profits for the use,” or to “ permit and suffer the cestui que use to receive the rents” ; and yet, in both these cases, the estate was decided to be executed. We are, therefore, of opinion, that the estate devised by the will of James Huston, was executed in the devisees.

It remains only that I should enquire whether the estate of ‘the plaintiff has been divested by the decree in equity, and the sale made under the Ji. fa. The devisees were not served with process ; they are not even named individually in the bill, and were, therefore, no parties to that proceeding. The general rule is, that none but parties and privies to a suit are bound by it. Alexander England was the executor of Huston, but he was not the executor of Henry Jenney, for whose debt the estate was sold. Since the Statute 5 George 2, the executor, as to the payment of debts, represents both the real and personal estate, and a sale of real estate, made under a fi. fa. against him, would be good. It was on this principle the case of Latta vs. Martin, 4 McCord, 128, and the other case cited by the defendant’s counsel, were decided. If the decree had been against England, as executor, for a debt due by Huston, his testator, the plaintiffs would have been bound, because in that matter the executor represented them. The object of the bill was to charge the other legatees of Huston for the debt of Henry Jenney, on the ground, they were bound in equity for the payment, and the Chancellor, no doubt, supposed the proper parties were before the court. But it seems from the evidence, that England was the only party, and the rights of the plaintiffs are in no way affected by the decree. They remain as they were before the sale.— The title of England alone was sold. The plaintiff, Robert Jenney, is now a naturalized citizen, and is under no impediment to sue. The other plaintiffs are natural-born citizens. No question has been made requiring us to decide, whether Robert Jenney is entitled to the whole land, as survivor, or jointly with the other plaintiffs.

The motions are dismissed.

Richardson, O’Neall, Butler and Wardlaw, JJ., concurred.  