
    Henry N. Jasper, adm'r of Sarah M. Jasper v. James Maxwell, ex'r of Stephen Outerbridge,
    From Franklin.
    ímjkííj always compel:; the trustee to surrender the legal estate to flu, ceek'd que trust, unless the receipt of the prefits by the trustee fe accessary to effectuate the intention of the creator of the trust.
    Yfhert-, a testator bequeathed bant stock to hia executrix, iutrusi to pay the dividend? to his daughter for life, and upon the espira •sien of the charter of the bank, gave the. came shares absolutely tr, Vis d-wghtev without any limitation fool; Hie, stuck absolutely, and that her ; cali for a transfer of iE.
    «Vhere & ixsfmui rorcmisl with her wife possession during the coverture, and i conveyance of her land to a third pereool husband, and the conveyance ar.d ird to vest the fee in the husband— M.ds hand as administrator t»f his wife, to recover^BSW^s^^Fivhich she -•vas the costó que trust that the children of the wife by a former marriage had no equity to prevent hw obtaining the legal title te hose chattel?.
    The, Plaintiff alleged, that the Befeaters téstalo*; ;;ad in his \vt-5 ttoiursitíicd as folien '
    
      "Whereas I have fifty shares in the State B ink of North-Carolina,, “ &c. (setting' forth sitares in other batiks, amounting in all to seventy, “ six) it is my will, that my daughter Sarah M Fenner shall have. “ die prufus arising therefrom during her natural life, or until the te charters of said banks may expire. I do therefore, by these pre “ sents, leave the said seventy six shares, in trust, with my ’execit “ tors, and I do liereoy authorize them to take charge of the said bank “ stock, and draw the dividends as they shall become due and paya-se ble 5 and the said dividends, when drawn by my executors, shall be “ paid over to my daughter, the said S. M. F. for her use and com„ “ fort. Whenever the charters of the said banks shall expire (if they is shall not again be renewed) I do then give and bequeath the said *( seventy-six shares to my said daughter S. M. F. to her and her heirs '■* forever.”
    Tite Plaintiff then averred, that the Defendant proved the will- — that he, the Plaintiff, and the said S. M. F, had intermarried ; that the Defendant, before the mar riage, had regularly paid the dividends upon the, stock to S. M. F. and since that event to himself — that S. M.F. was dead, and that letters of administration upon her estate had issued to him. The prayer of the bill was* that the stock might be transferred to the Plaintiff.
    The Defendant in his answer admitted every fact charged in the bill $ but, as mal ter of defence, stated, that S. Al. F. was a widow at the death of his testator, and had children who were infants — (hat under the will of her father, she had received, in addition to the stock above mentioned, a very large, personal estate, all of which the Plaintiff had received — that her father had also devised to her iri tee-simple a valuable real estate — that there was no issue of the marriage between her and the Plaintiff and that soon after the marriage, the Plaintiff had prevailed upon her to join him in a conveyance of her land to a third person, who, according to a previous concert, had re-conveyed it in fee-simple to the Plaintiff — that the conveyance of the Plaintiff and his wife, and the re-con-vejanre to the Plaintiff, were without consideration, the only objec t being to assure the land to the Plaintiff in fee-simple absolute, to the injury of the children of his wife fey her first marriage, to whom the Defendant sisted, that its equity and justice, they ought to descend.
    The cause was heard upon bill and answer,
    
      badger, for the Plaintiff,
    
      fieawdU for tito Defendant,
   Ruffin, Judge.

— The question made upon the will has ao difficulty. The bank stock is bequeathed to the exe enters, in trust to receive the dividends as declared, and pay them over to the testator’s daughter during her life, or until the charters expire, and upon that event, unless the charters he renewed, the stock itself is given to the, daughter. Eu her then are united the present, right to the whole profits, and the absolute ultimate dominion — which gives as perfect a property as is known to the law. The eestui que trust can call for the legal estate at her wilL It is not like the case of a bequest in trust for the main= iem-me of another. There the trustee must retain the property, in order to provide out of the profits for the support of the object of the testator’s bounty. He must keep the fund in his own hands, lest it he wasted. Bui here the fund is to go (eventually) directly to the daughter, and in the mean while, the whole profits, not as a maintenance to be provided by the executor, but as a general pecuniary legacy. The only purpose of the testator seems to have been, to save his daughter the trouble of receiving the dividends personally at the bank, and «> give his advice to her to keep that fund in stock, as Jang as she could, in preference to venting it otherwise» Ful whether that was his intention or not, such is necessarily the construction ; for the law will not permit a -(estator to pass the absolute property, and then fetter if, without a limitation over, with restrictions inconsistent with the general ownership created by him. It is one of she first, rules of a trust, that the cestui qne trust can cal! su> the írneí"*' «i fhta Cfonrt for the legal estate.

It would give the Court much satisfaction, if an equity could be raised on the other point made in the answer ? an(j jj. ¡8 wejj W01‘thy the consideration of the Legislature. The truth is, that by an undue influence, which every husband, either by blandishment or harshness, can exercise over a wife, she may be induced, and most of them are induced, indirectly, to convey their estates to their husbands, in the method practised here. But. what can the Court do ? It is a legal conveyance of a legal estate, supported by the statute. If not, let it be con* tested at law, and each party there make the most of his 'case. But if it be, where is the equity we can go on here ? Both the husband and the children are volunteers 3 and the first in time is best off. Certainly if the deed were defective, Equity would not raise a finger to help it. But if it be valid in law, we are kept equally sfill 3 for there is no consideration to set us in motion. If the estate were d mere equity, we would gladly interpose 3 for our power would be exercised in the protection, and aot in the restriction of the wife.

Per Curiam.

— Let a decree be entered according to the prayer of the bill.  