
    Ervin Brunson, and Wife, v. James King, Administrator, and Others, Heirs of Andrew Hunter.
    A. H. Living provided for his lawful children, and having several illegitimate children, and about to marry their mother, in order to provide for his natural children, and his intended wife, and the issue of the marriage, executed a deed of all his real estate and twenty-one slaves, in trust for himself during life, and at his death one-fourth part thereof for his natural children in fee ; one-third of the remainder to the use of his intended wife for life, and then to the children of their marriage in fee ; and the other two-thirds of the remainder to the use of such persons as his intended wife should appoint, reserving to himself the right to revoke or alter such appointment, and in default of appointment, to his said wife, her heirs,’ executors and assigns. The marriage took place, and A. H. acquired , some property after the execution of this deed. By his will, afterwards executed, lie referred to and confirmed the settlement, and by a general residuary clause, gave all the rest of his estate to the children of his last marriage, and then declares “ it is his wish” that his wife and children remain on the plantation until another place be provided, and that his mills be rented and his negroes hired out, &c., and other dispositions inconsistent with the deed. The wife made no appointment. Meld: 1. That the deed did not authorize A. H. to change its uses, but merely to control his wife’s appointments ; 2. That the will was not intended, and could not operate, as a revocation of the uses of the deed, and as a declaration to other uses ; and 8. That on the death of A. H. his wife took an absolute estate in the remaining two-thirds described in the deed. [*484]
    Although the words “ it is my wish” in a will, generally operate as a direct bequest, yet they will be construed to mean rather an inclination of the mind, than an act of the will, where a different construction would produce inconsistency and repugnance. [*490]
    Where one conveyed in trust, reserving a life estate to himself, a portion of his estate to such persons as his wife should appoint, and in default of appointment to her heirs and assigns, on the death of the husband the wife takes an absolute estate. [*490]
    Before Chancellor De Saussure, at Darlington, February, 1836.
    Andrew Hunter had, by his first marriage, five sons, John, James, Andrew, Dorrell and Isaac ; and after the death of his wife, he had four illegitimate children by Mary Andrews — that is to say, Laney Andrews, Solon Andrews, Satyra Andrews, and Cambyses Andrews. In contemplation of marriage with the said Mary Andrews, and for the *4841 purpose of making a provision for her *and the said natural child-J ren, and for the lawful issue of the said Mary, by the testator, begotten or to be begotten, the testator, by deed bearing date the 10th February, 1819, conveyed to George Bruce, all the real estate whereof he was then seized, wherever situate or being, and twenty-one negro slaves, by name, Asia, Africa, America, young Jack, Alfred, Asgill, Salem, Howard, young Peter, young Flora, Becky, Catey, Amey, Esther, Bechard, Maria, Penny, Clarissa, Mowah, Eliza and Louisa, and their future issue and increase; in trust for the said Andrew, the grantor, during his natural life, and after his death, so much thereof to the use of the said Laney Andrews, Solon Andrews, Satyra Andrews and Cambyses Andrews, his said illegitimate children, their heirs and assignees forever, as shall be equal to one-fourth part of the said real estate and slaves, and of such other real and personal estate as he had already given them, or any of them, taking into the estimate of the said one-fourth part such real and personal estate as aforesaid by him given to them, or any of them —intending thereby to make as large a provision for them as by law he was permitted to make, to be equally divided between them, so that their shares at the death of the said Andrew Hunter, the grantor, should be equal; and upon the further trust, that on the death of the grantor, the said Andrew Hunter, the said George Bruce should stand seized of one-third part of the remainder of the said real and personal estate, to the separate use of the said Mary, his intended wife, for life; and after her death to the use of such child or children of the said Mary, by the said Andrew, the grantor, begotten, or might thereafter be born and be living at the time of her death. And upon the further trust, that the said George Bruce should stand seized and possessed of the other two-thirds of the remainder after the death of the said Andrew Hunter, the grantor, to the use of such person or persons as the said Mary might by deed, under hand and seal, or by her last will and testament limit and.appoint; and on failure of such limitation and appointment, to the said Mary, her heirs, executors, administrators and assigns forever, reserving to himself,. *4851 *bowever, the power of revoking any limitations and appointments the said Mary might make, and of declaring the uses of the said two-third parts of the said remainder, for the purpose however, alone, of making provision for any legitimate child or children of the said Andrew, the grantor, now born or hereafter to be born; and reserving also the power of settling, disposing of, changing or exchanging, all or any part of the said real or personal estate, the proceeds thereof being, however, subject to the same uses, limitations and conditions as the original estate.
    The marriage contemplated by this deed was had and solemnized, and the issue of the marriage was three children, Mandanna, Mary and Caroline.
    On the 16th May, 1822, the testator made and executed his last will and testament, wherein, after the usual introductory clauses, he says : “I do by these presents confirm a marriage deed or settlement, dated the 10th February, 1819, by me made on the day above'mentioned and at the time of my marriage with my present wife, Mary, in which deed or settlement George Bruce is trustee. ” He then recites that he had already sufficiently provided for all the children of his first marriage, and had put them in possession of their estates, and proceeds thus : “ I give, devise and bequeath all the residue and remainder of my real and personal estate to my three youngest daughters, Mandanna, Mary and Caroline,” with cross remainders in the event of any of them dying without issue, and in the event of all dying without issue, to be divided amongst all his children. He then recites that he had already provided for his illegitimate children by conveyances of record in the Clerk’s office, to the extent which the law allowed, and confirms the said conveyances, and proceeds : “ It is my wish that my wife, Mary, and my several children by her, remain on my plantation, under the direction of my executors, until my crops be housed and a place comfortably and suitably prepared for them on one of my upper places, at the expense of my estate; and that Silla and all the rest of the family, with old Jack, old Phebe and old Flora, remain on the place where my family shall live; and that the said old negroes be treated humanely by my executors during their lives, but more particularly in old age. The remainder of my slaves to be hired out annually by my executors, and my mills I wish rented for a term not less than ten years, but the rent money to be annually paid my executors. My executors are to allow my wife, during her natural life or widowhood, household *and kitchen furniture and farming utensils, horses, and a competency of stock, so as to afford her and my children with t 48t> her, a comfortable and reasonable support; and the several children, Laney, Satyra, Solon, Cambyses, Mandanna, Mary and Caroline, as they shall marry or arrive at full age, shall receive from my executors their several allotments as before stated; and should my wife, Mary, die or marry, the portion allotted to her for her support and maintenance, is to be sold by my executors on at least one year’s credit, and the money arising from the sale to be put to interest for the benefit of my children as above stated.” By a codicil which appears to be without date, he authorized the executor to lease the mills annually until a prospect should appear-to lease them for the term mentioned in the will.
    It is conceded that the testator was, at the time of the execution of the marriage settlement, seized of the mills and plantation mentioned in the clause of the will last above recited, and it is apparent that the slaves specifically named in the will are not included in the settlement; and although not judicially ascertained, it is understood that he died seized and possessed of property to a considerable amount, acquired subsequently to the execution of the settlement.
    The object of this bill is to obtain partition of the estate, according to the rights of the several parties under the settlement and the will. There is no claim interposed on the part of the children of the first marriage, nor do the illegitimate children, claim more than the fourth part of the real and personal estate whereof the testator was seized and possessed at the time of the execution of the settlement, including the advancements which he had made to them respectively, and about which there is no controversy; but between the widow, Mary, and the three younger children, Mandanna, Mary and Caroline, the questions arise—
    1. Whether by the terms of the marriage settlement, the testator reserved to himself the power of revoking the power of appointment granted to his intended wife, as to the remaining two-thirds of his estate, and to declare other uses:
    
      2. If he did, whether the will can operate as a revocation of the power and a declaration of uses:
    3. If the power of revocation was not reserved or not executed, what estate did the intended wife take in the remaining two-thirds ?
    The Chancellor who presided in the Circuit Court was pleased to *¿811 ^adjudge and decree, that by the terms of the marriage settlement, J the power of appointment granted to the intended wife, was reserved to the testator, and that the will operated as a revocation and a declaration of uses; that the three younger children took the remaining two-thirds of the estate under the residuary clause of the will — and ordered partition accordingly; and the questions before stated have been revived here on an appeal from that decree.
    The widow, Mary Hunter, appeals from so much of this decree as determines that the will is an execution of a power under the deed, and moves the Court of Appeals to reverse the same, or so modify it as to decide that she is entitled to an absolute estate in the two-thirds referred to, in default of any appointment during coverture; or at least, that she still has a right to appoint the same to such uses as she may choose, upoii the grounds following
    1. The power reserved in the deed to the donor is only a power to control an appointment by the wife, and is dependent for its exercise upon the fact of her making an appointment.
    
    2. The will is not an execution of any power reserved in the deed. It does not, and is not intended to revoke any part of the appointment or limitations in the deed ; nor does it declare any new uses.
    
    3. The deed and will can stand together — the deed operating on the property mentioned in it, and the will on other property of the testator.
    
      Wilkins, for appellant.
    
      Sims, contra.
   Chancellor Johnson,

[after making the foregoing statement of facts, and of the questions arising out of them.]

Whether trusts are created by deed or will, the rules of interpretation are, in general, the same in the Courts both of law and equity. Equity indeed follows the rules prescribed by the Courts of law in regard to the creation and limitation of legal estates.. — 2 Mad. Ch. 452, and the cases cited in the notes. If created by deed, the construction is determined by the rules of law prescribed for the interpretation of deeds, all of which are resolved into the universal rule, that whether by deed or will, the intention, to be ascertained according to the rules of law, must govern.

In the solution of the first proposition, we are, therefore, led to inquire, what was the intention of the testator in reserving to himself, in the deed, *¿881 Power °f “ revoking any limitation or ^appointment the said 4o°J ]\£ary may make, and of declaring the uses of the said two-thirds parts of the said remainder,” &c. And upon recurring to the deed and examining its contents, it will be found thatfthe whole estate, real and personal, is conveyed to the trustee, George Bruce, in trust for the testator during his life, and after his death, one-fourth part to the use of his illegitimate children in fee ; one-third part of the remainder to his intended wife for life, remainder to the children of the marriage in fee; and the remaining two-thirds of the said remainder to the use of'such person or persons as his said intended wife might appoint, and in default of such appointment, to the use of the said intended wife in fee. Here then is a final disposition of the testator’s, whole interest in the estate, and you look in vain through the deed for any reservation of power which authorizes him to revoke, change or alter any grant, condition or limitation which he himself has made in that deed. The power reserved is in terms, that of “ revoking any limitation or appointment that the said Mary Hunter may make,” and of declaring other uses, and could not therefore be exercised until the case provided for (an appointment by the intended wife) had been made.

The question may be simplified and better understood, by supposing that instead of a deed like this, there had been mutual covenants between the parties — on the part of the testator, to grant the estate to the intended wife, and to such person or persons as she may appoint, and in default of such appointment, to the intended wife in fee; and on the part of the intended wife to permit the testator to revoke any appointment she might make, and which he disapproved, and to declare other uses. Can it be maintained, that the power of relocation existed independent of the previous exercise of the power of appointment? or that under the covenant to permit the testator to revoke the appointment, he might revoke his own deed ? There is certainly no principle or rule of law to authorize such a perversion of the obvious intent: and yet the cases are identical

Conceding, however, that the power of revoking the deed was reserved to the testator, independent of the exercise of the power of appointment by the wife, still I think it very clear that the will was not intended, and cannot operate as a revocation and declaration to other uses.

In the rules prescribed for the construction of wills, there are *none more familiar, than that the intention of the testator to be r^. „ collected from the whole will must govern, and that if possible it L 4°y must be so construed that the whole must stand together, and effect given to every provision in it. Now, that the testator did not intend, by his will, to revoke the marriage settlement, is conclusively shown by his recital and positive re-affirmation of it in the will. “I do by these presents confirm a marriage deed or settlement, dated,” &c., is the language of the will; and the rule is, that a paper writing recited or referred to in a will, is incorporated with, and constitutes a part of the will, as much so as if the testator had declared his will in the terms of the writing._ Habergham v. Vincent, 2 Ves. 228. But it is said that the subsequent provisions of the will are inconsistent with the deed, and therefore operates as a revocation of theMeed and an appointment to uses, although there is no express declaration of an intention to revoke. Now, it is true, that the intention to revoke need not be expressed in the will, but the intention must be so clear that no other reasonable intent can be imputed to the will; nor will it be permitted to operate as a revocation where the will can have its operation without it. — Bradish v. Gribbs, 3 John. Ch. Rep. 551: nor unless it is demonstrable that the testator had the power in his contemplation, and intended by his will to execute it.__ Doe v. Roake, 2 Bing. 497; 9 Eng. Com. Law Rep. 496. And it re mains to be seen, whether the inconsistencies between the deed and the will, are so irreconcilable that the will cannot operate consistently with the deed.

It is before noticed that the will contains an express re-affirmation of the deed, and following that, is the general residuary clause by which the testator disposes of the residue and remainder of his estate to his three younger children with cross remainde2’s ove2\ In this there is certainly nothing inconsistent with the deed. It operates on subsequently-acquired property, if there is any, but if there is nothing on which it can operate, it does not revoke the provisions of the deed. Then follows the clause last above recited, by which the testator declares, that “ it is my wish that my wife, Mary, and my several children by her, remain on 2ny plantation under the direction of my executors, until my crops be housed and a suitable and comfortable place be prepared for them on one of my upper plantations,” &c. ; and in the same clause goes on to direct that his negroes should be hired out, and his mills rented, (property of which he was confessedly seized and *possessed at the time of the execution of the deed,) and to make other dispositions, inconsistent with the distribution provided for in the deed, at the time of his death. It will be observed, however, that this clause begins with, “it is my wish,” and although these terms are frequently held to import a direct devise or bequest, or to create a trust, (6 Cruise Dig. 144-204,) and would generally so operate where the will contained nothing inconsistent with it; yet the rule is not so imperative as to compel us to do violence to the general intent in giving them that effect. In their general acceptation they Í2nport an inclination or disposition of the mind, not an act of the will; and it is, I think, very apparent that the testator intended them so to be understood'here, at least so far as they appear to be inconsistent with the limitations of the deed. The preceding clauses, it will be recollected, contained a final disposition of all his estate, real and personal — the deed of the property described in it, and the residuary clause, of every thing else that he possessed; and if this last clause is interpreted a direct bequest, it leads to that inconsistency and repugnancy which the rules of construction repudiate. If taken in their ordinary acceptation, they are merely advisory, and render the will thus far consistent — and this I take to be their true interpretation. This last clause, however, contains directions to the executors to allow the wife, daring her natural life or widowhood, household and kitchen furniture, horses and other stock, so as to afford her and her children a reasonable and comfortable support, and is thus far consistent with the deed, and may well stand with it and supersede the preceding residuary clause.

On the third and last proposition, there is, if possible, still less doubt. On the death of the testator, two-thirds of the remainder of the estate is limited by the terms of the deed, to such person or persons as the wife, Ma2-y, should by deed or will limit and appoint, and in default of such appointment, to the wife, her heirs, executors, administrators and assigns forever. No appointment has been made, and the question is, what estate does she take ?

The general rule is, that when a greater and a less estate concentre in the same person, the lesser merges in the greater; or, according to the Master of the Nolls, in Philips v. Bridges, 2 P. W. 126, where a legal and equitable estate unite in the same person, there is nothing on which the equitable can act; or in better phrase, it no longer exists. So in the case of Wagstaff v. Wagstaff, *2 P. W. 259, where the Lord Chancellor supposes the case of a trust for the use of J. S., his L heirs and assigns, or to such person or persons as he shall appoint; on which he observes, that the last words (such person or persons as he shall appoint) are no more than is implied before, et expressio eorum quce tacite insunt nihil operatur: and if the terms of this limitation in the deed are transposed, which may be done without in the least impairing the intent, we have the precise ease. Upon the death of the testator, Mai’y, the wife, therefore took an absolute estate in the remaining two-thirds of the estate described in the deed — Sugden on Powers, 58.

By the terms of the deed one-fourth part of the real and personal estate is limited to the testator’s illegitimate children, taking into due estimate such real and personal estate by him given to them or any of them. The power of selling, disposing of, changing or exchanging, of all or any part of the estate, is also reserved to the testator, provided, however, that the proceeds thereof should be subject to the same uses, limitations and conditions as in the original deed. It is probable, too, that the testator acquired property subsequently to the execution of the deed, or had other property at the time on which the residuary clause of the will would operate; and before the partition prayed for can be awarded, it will be necessary to ascertain in what amount the illegitimate children were respectively advanced by the testator; what property contained in the deed, if any, had been sold, disposed of, exchanged or re-exchanged, and whether the proceeds had been reinvested, and. in what; and whether the testator was, at the time of his death, seized and possessed of any, and what other real and personal estate.

It is therefore ordered and decreed, that the decree of the Circuit Court be and the same is hereby set aside and reversed, and that the case be referred back to the Commissioner to ascertain — 1. In what the testator’s illegitimate children, Laney Andrews, Solon Andrews, Satyra Andrews and Cambyses Andrews, had been advanced by him in his lifetime, and its value: 2. Whether the testator, in his lifetime, sold or otherwise disposed of the whole or any part of the property described in the said deed, and whether the proceeds have been reinvested, and in what; or whether anything, and what, has been substituted in its place : 3. Whether the testator was, at the time of his death, *seised and p*, possessed of any other real or personal estate than that described L ^ in the deed and not specifically disposed of by the will, and in what it consisted. On the coming in of this report, a writ of partition will be ordered for the partition of the real and personal estate, as well as that described in the deed, as any other of which the testator may have died seized and possessed, not specifically disposed of by the will, according to the principles of this decree.

Chancellor Johnston, and Justices O’Neall, Gantt, Earle and Butler, concurred.  