
    RUBEY et. al. vs. BARNETT.
    1. An absolute power of disposition over property conferred by will, not controlled by any provision or limitation, amounts to an absolute gift of the property.
    2. Testator gave all his estate, both real and personal, to his wife during life: also gave her power to dispose of all his estate at her death. Held that the wife acquired only a life estate in the property of her husband. That the power of disposition given to the wife is a mere power, and if not executed, the property, both real and personal, at the death of the wife, descends to the heirs of the testator-.
    3. An administrator is a trustee, and cannot set up the statute of limitations in bar to the next kin or persons entitled to the distribution of assets.
    4. A bill which seeks an account for rents and profits of real estate, and an account of personal estate is not multifarious.
    APPEAL FROM MONROE CIRCUIT COURT.
    Clark & Wells, for appellant.
    1st. There is no misjoinder of action in this case, because the will affects alike all the property, real and personal. Story, Eq. PI., 224 232.
    2d. There is no misjoinder of parties. The complainants claim a joint undivided interest in the whole subject matter of the suit, as well in the land as in the personalty, and they claim all under the same title. The interest of one cannot be settled and decreed without ascertaining the interest of the other. Story, Eq. PI. 74, 77, 107, 109.
    3d. The cause of action is not barred by the statute of limitation. The bill charges that he obtained possession of the property as administrator: being once a tiustee he is always a trustee, and may be held to account at any time, at least at any reasonable time. 3d McCord, 467, It cannot be taken advantage of on demurrer.
    4th. The will of William Horn gives his wife but a life estate with a power of disposition at her death. The fee is undisposed of by the will, and the wife making no disposition of the estate in her life, the whole passes at her death to the heirs, to be distributed under our statute of distribution. 4th Kent, Com. 535 ; 2nd Kent Com., 532 , 4th Kent, 332, 319 ; 16th John R.; 385. 6; 7; 2nd Wilson 8; 1st Dana, 229; Yance and Wife vs. Campbell’s heirs- 2nd Dana 426; Pate vs. Barnett and Wife ; 3d Littel, 415, Lillard vs. Robeson ; 11th B. Monroe, 450-, 3d Leigh 353, Boswell cxr. vs. Anderson admr.
    
      Glover & Campbell, for appellee.
    FIRST PROPOSITION.
    The will vested an absolute estate in Polly Horn to the property dsvised to her. This conclusion is enforced by many reasons arising out of the language of the instrument, and the circumstances of the parties.
    1st. The introductory clause in the will proposes to dispose of the whole of the testators interest, and when such is the case, these words indicate the testators intention, and the subsequent words must be construed, if possible, to accord with this intention. 6 Cruise Dig.. 229, Ko. 20; 6 Taunton, 410; IS Vesey, 193; 2 Atkins, 102.
    2d. The power which the will gives to the devisee over the estate devised, is unlimited and absolute ; she might have conveyed it or devised it at pleasure. In Tomlinson, vs. Dighton, 1 P. Will, p. 149, the devise was to the ilevisee for life, and then to be at her disposal: held to be a power to convey by deed.
    3d. The intention of the testator to pass an absolute estate, is enforced by that portion of the devise which exempts her from any security as his executor. If no one but herself was to be interested in the property, then there is propriety in relieving her of this burden. But if he wished to secure the estate to others at her decease, this clause in the will cannot be accounted for.
    4th. The want of any devise over to any person in the event of her death, is a powerful circumstance, showing an intention to pass an absolute estate. 12 Pick., 31. Now to the rational mind a devise over is stronger evidence of an intention to give an estate for life, than the employment of the words “for life,” or “during lifefor it is competent, after giving a life estate, to pass the balance of the interest by another clause, as has been often done, to the devisee for life. But a clause in the conclusion of a devise which gives the estate over to another, certainly would seem to preclude all construction ; nevertheless, such a clause has always given way to a general power; why not the words here used give way to this power ?
    5th. The condition of the testator as disclosed by the bill, goes to strengthen this view. He had no children, and might well be expected to give his wife all he possessed ; most men in like cases would do so. Had he intended any portion of his estate for his collateral kin, it is most reasonable to presume he would have given them some present interest. His wife did not need the $20,000 which he left, and if in any event he had designed any patt of it to go to the appellants, he would have divided it at once with them and her. It seems plain to us from the whole will and “surrounding circumstances,” (12 Mod , 596,) 4 Kent, that the words “ as long as she may live,’’ are to be regarded merely as a declaration that in the nature of things she could enjoy no property beyond this period, and not as a limitation upon the degree of interest given to her; and that the broad and unqualified introductory words “all my estate, both real and personal,” the absolute power of disposition in any way she might ‘think most advisable,” the exemption from “surety,” the want of any devise over after her, and the circumstances named certainly ought to enlarge the estate given here to an absolute one if any words could do so.
    
    6th. As to the personal estate named in the will, the devisee took an absolute estate, because there is no reversion of a chattel after a life estate granted therein ; there may be an executory devise or a remainder, but this is neither; and it has never been held that a reversion arises by operation of law in such property. 2 Kent, 352. Cases of reversion in slaves are numerous in those States where slaves, as to the law of “wills and descents,’’ have been put on the same footing with real estate, but such is not our statute law.
    
      SECOND PROPOSITION.
    jBut if we shall be in error as to the foregoing points, and the court shall be of opinion that the will vested only an estate for life in the devisee, and that the appellants have taken a reversion in the real estate of William Horn, deceased, the question arises, what sort of a title has reverted to them ; a legal or an equitable title ? We must think if any right has passed, it is a legal right. The idea of an equitable title is always contrasted with a legal one. If A has an equitable right to land, it is because B withholds a legal right. If these appellants have an equitable right in whom is vested the legal title—not i» William Horn, for he is dead—nor in Hutchins Barnet, for the bill avers that it was in Horn just before his death, and does not show how Barnet could have got it. If it is in any body else, the wrong party has been sued ¿ and if it be in the appellants, their remedy was not here,but at law. They have consequently no equity to have this land decreed to them. As to the slaves, the remedy was also at law. The will of Horn was executed by the executor when he placed the slaves in the hands of the devisee for life. By virtue of this act the estates in remainder or reversion, if any, became vested, and when the life estate fell, the legal right and cause of action was perfect in the next laker. 4 Kent, 201.
    THIRD PROPOSITION.
    The demands of the appellants, except such as purport on the face of the bill to belong to the infants, or to be derived from married women, are barred by (he statute of limitation, and for so much of the matter of the bill therefore as concerns the interest derived from the adults, the demurrer was properly sustained at all events. (Rev. C., 1845, p. 840 §11.) Kane, vs. Bloodgood ; John Chy., R. p. 90, lb., 127. The statute of Lim is a bar when the bill itself, as in this case, shows the necessary continued adverse possession. Story’s £q, PI., p. 496, No. 503, and the note.
    FOURTH PROPOSITION,.
    The bill is multifarious in joining the administrator of Horn, against whom the distribution is demanded, with Hutchins Barnet as tenant of the real estate, for the administrator and the tenant are the same persons, yet they cannot be joined ; the subject matter, wrongs and rights involved, being separate and distinct. Edwards parties, p. 10. In 2 Simons, 329, the bill was for an account of the real and personal estate of decedent, and against the administrator, and was held multifarious. Here the bill prays for an account of the -real and personal estate, and in addition asks a decree for the land itself. Lit. Sel., Cases 320 5 4 Blacf., 331. This objection, if good, is fatal to the whole bill. 2d Am. Chy. Dig., 324 §5, citing 2, Gill & John, 14 ; 5 Paige, 65.
    FIFTH PROPOSITION.
    The bill was attempted to be sustained in the court below on the ground of partition. But no partition is granted by a court of equity when there is a perfect legal title in the plff. J, Stoiy Eq., p. 605 §651.
   Scott, Judge,

delivered the opinion of the Court.

William Horn being seized and possessed of a large real and personal estate, consisting of lands-, slaves, money, evidences of debt and other property, having no children, made the following will: “First, my will is, that my beloved wife, Polly Horn, have all my estate, both real and personal, so long as she may live : secondly, my will is, that my wife dispose of all said estate as she may think most advisable at her death. I do hereby appoint my beloved wile, Polly Horn, sole executor of this my last will, and it is my will for her not to give security as my executor.” During the year 1833, in which the will was made,, and afterwards Horra died, and his will was admitted to probate. Afterwards, in September 1836, Hutchins Barnett took out letters of administration with the will annexed, on the estate of William Horn, and intermarried with the wife, Polly Horn. They were not long married before Barnett’s1 wife died without children, and without having made any disposition of the estate she acquired by her former husband’s will. It is alleged that Barnett as administrator has not made full settlement of his accounts, that he has not accounted for the rents and profits of the real estate, and made no distribution of the personalty, but claims the whole as his own in right of his wife under the will of Will-iam Horn.

A bill was fded by the heirs at law of William Horn, and the assignees of some of them praying an- account, and that the property might be decreed to them.

A demurrer to the bill was sustained, and the bill dismissed.

The important question in the case is what estate Polly Horn took under the will of her first husband; whether an absolute one, or only an estate for life.

It has always been held that an absolute power of disposition over property conferred by will, not controlled by any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it. Hence whenever property is conveyed by words conferring a power of disposition as one pleases, or as1 he may think best, it is in law an absolute gift of the property to'him on whom the power of disposition is conferred. A devise to B to dispose at his will and pleasure, gives a fee, and devises to dispose of for payment of debts, or to give, sell, or do therewith at pleasure, are held to give an absolute estate in lands. But a devise to a wife for life, and after her decease she to give the same to whom she will, passes but an estate for life with a power; yet if an express estate for life had not been devised to the wife, an estate, in fee would have passed by the other words. Barnwell’s exr., vs. Anderson’s admr., 3 Leigh, 356.

This is the distinction which prevails throughout the cases. When an express estate for life is given, and afterwards a power of disposition is conferred, then the devisee takes but a life estate with a power of disposition, and if no disposition is made, the reversion will go to the heirs of the devisor. But if there is no previous devise of a life estate, but a simple power of disposition is bestowed, then the devisee takes an absolute estate. In the case of Jackson vs. Robins, 16 John Rep., 587, which appears to have been well considered, it was held to be an incontrovertible rule, that when an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life, only by certain and express words, and annexes to it a power of disposal. “In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the books so in Corny. Dig., 408, it is said a man may give a power or authority by will which is a naked authority not annexed to an estate, as if he devises it to A for life, and afterwards that it shall be at his disposal to any of his children then living, he has but an estate for life, with a naked power to dispose in tire manner directed by the will.

An express estate for life negatives the intention to give the absolute property, and converts the words giving aright of disposition into words of mere power, which standing alone would have been construed to convey an interest.

The case of Pearson vs. Otway, 2 Wil. 7, was relied on to show that a devise for life with a power of disposition at pleasure, gave an estate in fee. But in that case, the limitation was of an estate in tail, for it was to be enjoyed by the devisee without molestation, and after her death to her lawful issue. It is moreover to be remarked that the court in the case of Jackson vs. Robins, above cited, refer to this very case in support of the doctrine therein contained.

The case of Tomlinson vs. Dighton, 1, P. W. 149, so far from sustaining the ground assumed by the appellee, is a clear and full recognition of the law as above stated, both by the court and the counsel.

It is useless to look into the will to ascertain the intent of the testator. He has clearly given his wife a life estate by express words, with apower of disposition, which the law holds to be a mere power, and if not executed, the property at the death of the wife must descend to the heirs of the testator. None of the cases cited and relied on by the appellee, overthrow or even contradict this principle. It seems to be a fixed and settled rule of law, and cannot be disregarded by the court.

The rule above stated is applicable both to real and personal estate.

There are cases in which a party may avail himself of the statute of limitation by demurrer. Story, Sec. 503. But this is not a case in which the statute of limitation is applicable. No lapse of time is a bar to a direct trust, as between trustee and cestui que trust. An administrator being a trustee, cannot set up the statute of limitations in bar to the next kin or persons entitled to the distribution of assets. DeCouche, vs. Savitier, 3 J. C. R., 190; Kane, vs. Bloodgood, J. C. R., 126.

Under our system of law, which gives an administrator control over the real estate for some purposes, there is no multifariousness in a bill which seeks an account for rents and profits of real estate, and an account of personal estate.

In England, an heir and the personal representatives could not be joined in a bill for an account for obvious reasons, but that principle is not applicable in this State. Barnett received the estate as administrator ; there is then no form of action at law in which the personality could be recovered by the heirs and distributees of the estate.

The other judges concurring the decree will he reversed, and the cause remanded.  