
    John Smith T. vs. Robert Bell and wife.
    Devise in these words, “I give to my wife E. all the personal estate, whatsoever and wheresoever, and what nature, quality or kind soever, after paying my debts, legacies and funeral expenses; which personal estate I give and bequeath unto my said wife E., to and for her own use and benefit and disposal absolutely. The remainder of said estate, after her decease, to be for the use of my son Jesse.” Held,.that the absolute interest in the property, and the power of unlimited disposal, was given,by the first bequest to the wife, and the remainder over to the son, was repugnant to the estate first given, and consequently void.
    Upon an appeal from the decision of the chancellor, if two of the judges in the appellate court concur with him in opinion, his decree must be affirmed.
    The bill charged, that Brittain Goodwin, departed this life in 1811, having, on the 17th of October, 1810, made his last will and testament; in which is the following bequest, “I give and bequeath unto my son Jesse Goodwin, my young sorrel gelding and one feather bed, to he delivered to him by my executrix, after my decease. Also I give to my wife Elizabeth Goodwin, all my personal estate, whatsoever and wheresoever, and of what nature, kind or quality soever, afterpayment of my debts, legacies and funeral expenses; which personal estate I give and bequeath unto my said wife Elizaheth, to and for her own use, and benefit and disposal absolutely. The remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin;” and he appointed said Elizabeth his executrix. It also charged, that in the year 1814, Elizabeth Goodwin married the defendant Robert Bell, who took into his possession all the personal estate of said Brittain, consisting principally of negroes, cattle, &c. That Jesse Goodwin was the son of the testator, by a former wife, and at the death of his father resided in the state of Illinois. That he, upon the first of March, 1815, assigned, for a valuable consideration, to complainant Smith, all the right, title, claim and interest which he had to the personal estate of his father, after the death of defendant Elizabeth Bell. That said Bell and wife, claim the absolute interest in the property, by virtue of the bequest to said Elizabeth, and are endeavoring to sell the negroes, and actually have sold one or two. The bill prays, that said Bell and his wife be compelled to state an account, or make out an inventory of what moneys, bonds, &c. came into their hands, as a part of the personal estate of said Brittain Goodwin, deceased; and that they be compelled to give sufficient security for the delivery of the negroes and other property, to the complainant, after the death of said Elizabeth.
    The answer of Bell and wife, admitted the execution of the will, and the bequest of the sorrel gelding and feather-bed to Jesse'Goodwin; and also the bequest to said Elizabeth, of all the personal estate of said testator, in the words stated in the bill; but insisted that said bequest vested in said Elizabeth the whole and absolute interest in said personal property; that said Jesse had no interest, vested or contingent, whatever in the same. That the intention of the testator was, that said Jesse should take whatever of the property she left undisposed of at her decease; and that if she disposed of all, he was entitled to nothing. The answer also, admitted the marriage of said Elizabeth with said Robert Bell, in 1813, and the sale of one of the negro women and her child; and stated that the balance of the negroes are yet on hand, and have increased, &,c. Defendants also admitted they had in their possession, and received as part of the personal estate of said Brittain, 17 or 18 head of cattle, and some horses. They admitted also, that said Jesse was the son of said Brittain, by a former wife, and that Elizabeth had no children by said Brittain.
    The chancellor below, (judge Whyte) dismissed the bill; from which decree an appeal was prosecuted to this court; and since the pendency of the suit here, Elizabeth Bell has departed this life.
    
      Hugh L. White, for the appellant,
    argued at considerable length; and cited and relied upon the opinion of judge Haywood, pronounced in this case, upon a former hearing. (Peck’s Rep. 102, and 1 P. Wms. 651.)
    
      Jarnegan and G. S. Yerger, for the appellees,
    contended, that by the bequest to Elizabeth Goodwin, the entireinte* rest in the personal property was vested in her, with an ab* solute power to dispose of the same; and for this they cited Cruise’s Digest, title Devise, ch. 11, sec. 11,12,16; 4 Bacon’s Ab. 253, (Gwillim and Wilson’s edition;) 7 East’s Rep. 259; 3 Cranch’s Rep. 97; Cowper’s Rep. 355, 659; 2 P. Wms. 524; 1 John. Digest 508.
    2d. That if the absolute interest were given to Elizabeth, and the intention was that she might dispose of the property in her lifetime, and the balance or remainder un-disposed ofby her, during her life, should vest in Jesse, after her death — in either case, the remainder is absolutely repugnant to the absolute estate first given, and consequently void. (2 Fearn Con. Rem. 226. 4 Bacon’s Ab. 292; 10 John. Rep. 19; 2 John. Ch.Rep. 345; 13 John.Rep. 337; 15 John. Rep. 169; 16 John. Rep. 537, 587; 5 Mass. Rep. 500; Ross vs. Ross, 1 Jac and Walker.)
   Catron, J.

delivered the opinion of himself and judge Peck. (Whyte, judge, having decided the cause, as chancellor below, did not sit.)

The only question presented for the consideration of the court in this cause is — what is the construction of the following bequests, in the will of Brittain Goodwin, deceased.

“I give and bequeath unto my son Jesse Goodwin, my young sorrel gelding, and one feather bed, to be delivered to him by my executrix, after my decease. Also I give to my wife Elizabeth Goodwin, all my personal estate, whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of all my just debts, legacies and funeral expenses; which personal estate, I give and bequeath unto my wife Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely. The remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin.”

j Did the testator intend, by his will, to vest in his wife Elizabeth, an estate for life' only, and after her death, that Jesse should take the remainder of the estate in the property? Or, did he intend that his wife Elizabeth, should have the power to sell and dispose of the same during her lifetime; and if any of the property was undisposed of by said Elizabeth at her death, and went to her executors, that Jesse should have what was so left undisposed of? S . —

In coining at the true intention of the testator, the court can be much aided by legal principles applicable to trust and absolute estates.

1st. It is a settled principle, that a valid executory devise is such an one as cannot be defeated at the will and pleasure of the first taker, (say Elizabeth) by sale or any other mode of alienation. Attorney General vs. Hall, (Fitzgibbon 314, cited 10 John. Rep. 20;) Jackson vs. Bull, (10 John. Rep. 19;) Jackson vs. Robbins, (15 John. Rep. 169; 16 John. Rep. 571, 584, 1 P. Wms. 584;) Moffat vs. Strong, (10 John. Rep. 17;) Ross vs. Ross, (1 Swanston’s Rep.;) Ide vs. Ide, (5 Mass. Rep. 500.)

The devisee, the first taker, has a use only of the property devised during life, if the executory devise is good. But if the first taker is given an absolute estate in the property devised, then the limitation over is void, being inconsistent with the interest given to the -first taker, which was the entire estate; and consequently nothing remains for the second taker.

2d. If the first taker, Elizabeth Goodwin, could exercise absolute control over the property, by selling the same, and vesting in the purchaser an indefeasible title, it would then be useless for the law to recognize, and guard with anxiety, an executory devise that it could not preserve for the remainder man. j

3d. It is a rule, upon which this bill is grounded, that where there is a remainder over, by way of executory devise, the property is unalienable in the hands of the first taker, as above laid down; and should he attempt to sell, or in any other mode waste or misuse the property, so as to threaten its destruction, the court will impound it; that is, take it into the hands of the eourt, by its officer, and give the first taker the profits. Our practice has been, to require security for the lawful use of the property, during the life estate — and if this is not given, then pursue the mode of seizing upon the property. (See 3 Vesey’s Rep. 7; 2 Vesey 333, 529; 18 Vesey 41. Security has been given for the pieservation of the property in the present instance.

If the first laker has power,during his life, to dispose of the property absolutely, it is not within the power of the court to interfere for the preservation of it during the life estate. In all such cases, the rule is, that the devise over is void, and that the first taker has the estate in fee. In this construction, no distinction has been made between goods and lands. Jackson vs. Bull, (10 John. 21;) where the rule is well laid down by the supreme court of New York.

Here a rule of law interposes, which controls the intention of the testator; for although the devise, in plain terms is, that he gives to A, to be disposed of by him, during his life, at his will and pleasure; but that such part of the property, as may be undisposed of at his death, shall go in remainder to B. Yet B shall take nothing, although the whole property and estate devised, remain in A at his death ; for the reason that it is out of the powers of a court of chancery to govern the discretion in A, the first taker; and hence such an executory devise has uniformly been pronounced void. (16 John. Rep. 571.) /

“When a principle is settled,” says Lord Mansfield, (Cowper’s Rep. 355,) “no conjecture, or private imagination, can shake a rule of law — which must govern.”

/To apply the rules above laid down to the case before the court — it is admitted, that the clause in Brittain Goodwin’s will, would have vested in the wife, Elizabeth, an absolute estate; and that it gives her the power, as devisee, to dispose of the whole estate in the property devised, when not taken in connexion with what follows: “The remainder of said estate, after her.decease, to be for the use of the said Jesse Goodwin.” It is argued, that this clause cuts down the estate of the wife, to the mere use of the property during life, without any power in her to alien the same; that the court can seize thereon, should she attempt to sell, aijid preserve it for Jesse, by impounding it.

1 To test this principle, let us put a case. Suppose Elizabeth Goodwin had, in her lifetime, (for she is now dead,) sold one or .more of the ^laves to a third person, bom fide-, Jesse Goodwin, after her death, had brought detinue against the purchaser for the slave, relying upon the executory devise in the will of Brittain Goodwin — could he recover? The court thinks not; and for this reason, because Brittain Goodwin intended by his will, to give his wife liis personal property absolutely, tobe disposed of by her, according to her will and pleasure, by sale or otherwise; but that if any part of the property “remained” that is, was undisposed by her at her death, Jesse Goodwin was to be entitled to the same/hence, by law, the executory devise, in Jesse’s favor, is void, and the bill must be dismissed.

Whether the assignment of his interest to Smith, the complainant, by Jesse Goodwin, authorized the former to prosecute this suit as assignee, has not been examined by the court; the defendant’s counsel waving this point, and requesting that the cause should be decided on its merits.

The court has given mature consideration to the opinion of judge Haywood, (reported in Peck’s Rep. 102,) delivered in this cause at a former term; and duly appreciates the talents and learning of that distinguished judge; but feels itself constrained, by authority, and what is believed to have been the interest of the testator, to dissent therefrom.

In this appeal from the judgment of the chancery court, only three of the judges now in fact constituting this court, could sit upon its hearing above; one of the present judges was disinclined to affirm the opinion of the chancellor; the other two sitting members were of opinion it ought to be affirmed; when the question arose upon the construction of the statute of 1824, which provides, “that there shall be the concurrence of three judges to make a decision, except in cases of appeal from the courts of chancery, in which appeals the judge who decided the cause below shall not sit, and if the court, (meaning the four other judges,) are equally divided, the judgment of the chancellor shall be affirmed.” The whole court adjudge, that where there are three judges sitting upon the hearing of an appeal from the chancery court, and two are favorable to affirming the decree, ai d one is of opinion that it should be reversed, the decree shall be affirmed; for the reason, that if the fifth judge were in his place, and favorable toa reversal, yet the two judges concurring with the chancellor could affirm. Therefore, the judgment must be affirmed.

Decree affirmed.  