
    Isolina E. Howard vs. Adelaide Sophia Carusi, John McLean Carusi et al.
    Equity. No. 6078.
    Decided May 24, 1880.
    1. Where a testator, alter executing his will, changes the legal seizen by conveying away the fee simple, the will is thereby revoked, upon the implication of law that the testator has changed his intention.
    2. A deed of trust to one to manage the property for the use and benefit of the grantor, during his life, and upon his death, to convey to such person or persons as the grantor may, by his last will and testament or other paper writing duly executed, designate and direct, refers to a designation to be made in the future and cannot be made to refer to a paper, executed previously to the deed, in which the grantor had already designated certain persons as takers of the property. On the failure, therefore, to make such designation, after the execution of the trust, the title is left in the trustee for the benefit of the heirs general of the grantor.
    STATEMENT OE THE CASE.
    On the 18th of March, 1872, Lewis Carusi made his last will, containing the following provision :
    “ Second. And as to all my property, real, personal and mixed, after the payment of my just debts and funeral charges as aforesaid, and the payment of the legacies hereinafter mentioned, I give, devise and bequeath the same to my brother, Samuel Carusi, to be held, used and enjoyed by him, his heirs, executors, administrators and assigns forever, with the hope and trust, however, that he will not diminish the same to a greater extent than may be necessary for his comfortable support and maintenance ; and that at his death the same, or so much thereof as he, the said Samuel Carusi, shall not have disposed of by devise or sale, shall descend to my three beloved neices, Philippa Estelle Caulfield, nee Carusi, Genevieve E. Carusi, and Isolina E. Carusi, the daughters of my said brother, Samuel Carusi, as follows : To the said Philippa Estelle Caulfield, nee Carusi, the sum of five thousand dollars ($5,000), the remainder of my estate to be divided between Genevieve E. Carusi and Isolina E. Carusi, share and share alike, as tenants in common, and not as joint tenants.”
    On the 18th of July, of the same year, he executed a deed in trust to Samuel Carusi, containing the following declaration of trusts :
    .“In trust, nevertheless, to, for and upon the following uses and trusts—that is to say, in trust to sell and convey the whole or any part of the said pieces or parcels of ground and premises at the discretion of the said party of the second part, and to invest the moneys arising out of such sale or sales in other property or securities, for the use and benefit of the said party of the first part; and in event of the death of the said party of the first part, so much of said pieces or parcels of ground as may remain unsold, or such other property as may be purchased, or such securities as may be acquired in manner aforesaid, to convey to such person or persons as the said party of the first part may, by his last will and testament or other paper writing under his hand and seal, by two persons witnessed, designate and direct.”
    On the 17th of October, 1872, Lewis conveyed the same pi’operty to Samuel absolutely, ih fee simple, reserving to himself the rents and profits during his life.
    On the 28d of March, 1877, Samuel executed a will, devising all his real estate, which is admitted to include the property described in this suit, to his wife for life, with remainder to all his children, equally, in fee.
    The complainant, who is the Isolina E. Carusi named in the will of Lewis, insists that, by virtue of that-will and the deed of trust of July, 1872, she and her sister, Genevieve, are entitled, subject to the pecuniary legacies, to the whole estate of Lewis. She files this bill, claiming that the deed of trust shall be declared to be in full force and effect ; that the will of Lewis Carusi shall be declared operative to designate the persons to whom the estate of said Lewis was to go, under said deed of trust, after his death ; that the absolute deed from Lewds to Samuel of October, 1872, be treated as fraudulently obtained and void.
    The leading facts are, the will of Lewis Carusi, of March 18th, 1872, the deed in trust from him to Samuel, of July 18th, 1872, the absolute deed from him to Samuel, of October 17th, 1872, and Samuel Carusi’s will of March 23d, 1877.
    Wm. B. "Webb for complainant:
    The will of Lewis Carusi already made is the will referred to by him in the deed of trust, and, although as a will it was revoked by the execution of the deed, it is sufficient to designate those to whom Samuel Carusi, the trustee, was to make the conveyance. Mayor and City Council of Baltimore vs. Williams, 6 Md., 235.; Bath vs. Montagu, 3 Chancery Cases, 98; Greenleaf’s Cruise, vol. IV, title 32, sec. 5, citing Audley’s Case, Dyer (2) 166 (a); Jones vs. Morley, 1 Ld. Raymond, 290; and Mytton vs. Lutwich, Sir W. Jones, 7.
    The will of Lewis Carusi, taken with the deed in trust, is not to be governed by the ordinary rules of construction as applied to a devise of real estate. Defendants themselves admit that the will can only operate as a part of the deed. Now these two papers together constitute one, and, thus operating together, are together to be construed as creating an executory trust. The distinction between an executed and an executory trust has long been clearly established, and in England such family settlements are very common indeed. In this country they are not so common, but the English cases have always been relied on as law in the distinction thus made as well as in the different rules of construction to be applied to the two classes. Kent, vol. IV, m., p. 305: “ Trusts are of two kinds: executory and executed. A trust is executory when it is to be perfected, at a future period, by a conveyance or settlement, as in the case of a conveyance to B, in trust, to convey to C. It is executed either when the legal estate passes, as in a conveyance to B, in trust, or for the use of C, or where oply the equitable estate passes, as in the case of a conveyance to B, to the use of C, in trust for D.”
    In Potter vs. Doby, 2 Richardson (So. Ca.), 51, the court says : “ The test of an executory trust is, that the. trustee has some duty to perforin, for the performance of which it is necessary that the title be regarded as abiding in him.”
    That this definition is in accordance with the English apd American cases we will hereafter show by the cases cited. There can be no doubt that we here have to deal with an executory trust just as if the trustee, Samuel Carusi, had come into this court praying to be instructed as to whom and upon what terms he should make the conveyance, the court must necessarily order him to make, as required by the deed in trust. While executed trusts are to be construed as legal estates in executory trusts, much greater latitude is allowed, and the intention of the party creating the trusts is to be fully carried out, even at the expense of technical rules of legal construction. How liberally such executory trusts are construed will appear from cases cited:
    1. Where the court decrees a strict settlement it will limit the estate to trustees to preserve contingent remainders, though not so directed in the conveyance directing the settlement. Harrison vs. Naylor, 2 Cox Ch. Cas., 151 m., p. ; Stamford vs. Hobart, 1 Brown Ch. Cas., 288.
    2. Where a testator, by executory trust, directed that, after the death of his wife, his nephew, C. W. (whom he feared was unreliable), should “ be considered heir to all his property not otherwise disposed of,” and that his executors should “ secure the property for the benefit of his family,” and, in the nature of a trusteeship, for the parties who might be interested thereafter.” Lord Cottenham ordered the real estate to be settled on the nephew for life, with remainder to his sons successively in tail male, with remainder to his daughters, as tenants in common, in fee ; and that the personal estate should be settled upon the nephew for life, with remainder to all his children, as joint tenants, with proviso that in event of all the children dying under twenty-one, and in case of daughters unmarried, and in case of sons without lawful issue, the personalty should be held in trust for the nephew absolutely. White vs. Briggs, 2 Phillips’ Chancery, 583.
    3. A direction to trustees to settle property upon the wife of testator’s son “ should he marry,” was held to authorize the settlement of a jointure upon the wife of a second marriage. Mason vs. Mason, 5 I. R., Eq., 288.
    4. Where an executory trust would be void as a perpetuity, the court, in order to carry out testator’s intention, will order a settlement to be made as strictly as the law will permit. Humbleston vs. Humbleston, 1 P. Wms., 332.
    5. Where a father, by deed, conveyed property to trustees to be settled on his daughters and her issue, “ so that it might not be liable to the debts or control of any .husband she might happen to marry,” it was ordered by the court that the daughter should have a power of appointment by will in default of issue. Stanley vs. Jackman, 23 Beavans, 450.
    6. It is well known that the rule in Shelley’s case is as rigidly enforced in the case of an executed trust estate as in a legal estate ; but in the case of an executory trust, this rigid rule is relaxed, and the intention of the settler or testator carried into effect by the courts at the expense of the rules. The English cases, which are the foundation of the rule in this country, will be sufficiently quoted and commented on in the American cases we will cite. These cases fully recognize the distinction between executed and executory trusts, and declare that the latter are to receive the most liberal construction to carry out the intention of testator add settler. Chancellor Kent, in speaking of executory trusts (4 vol., m., p. 218): “But when the will or settlement is in the light of a set of instructions merely for the purpose of a conveyance to be made by the directions of chancery, a court of equity will follow the instructions and execute the trust in conformity to the intention." Read, also, m., p. 304. Wood vs. Burnam, 6 Paige, 518-520; Talman vs. Wood, 26 Wendell, 19-20; Edmondson vs. Dyson, 2 Kelly (Da.), 321-324; Potter vs. Dober, 2 Richardson Eq. So. Car., 51; Homer vs. Lytle, 4 Harris & Johns (Md.), 434; Sanders vs. Edwards, 2 Jones, Eq. (N. C.), 136-7.
    In the citation of these cases we have purposely refrained from quoting cases of marriage articles where the same liberal rule of construction is followed, because there exists in those cases a presumption in favor of a benefit to the issue of such marriage, and the cases .quoted are free from anything of this kind.
    Now, in this case the defendants do not deny that Lewis intended to give his estate, after Samuel’s death, to plaintiff and her sister, but only contend that the wording of the will by a strict construction gives an absolute fee to Samuel. Is this rule of construction any more binding than the rule in Shelley’s case, which, as we have seen, is made to yield to the intention, in every case, of an executory trust ? Must not these rigid rules of construction (admitting for the present they govern the case, as a devise standing by itself) be abrogated, and the true intent of the deed in trust and will, as an executory settlement, be decreed by the court ? It must be plain that the deed in trust and will are to be construed together, and if the so-called precatory words in the will do not create a trust, certainly the deed does. When the court directs a conveyance, as it is bound to do— to whom must the trustee appointed make that conveyance? Is it not bound to say the deed and will construed together indicate clearly that it was Lewis’ intention that Samuel should not diminish the property further than necessary for his own support, and whatever was not thus consumed should go to his daughters ? If Lewis Carusi had .intended that Samuel should have this property absolutely upon his (L) death, why would he commit the absurdity of requiring him to make a conveyance of it to himself before he could enjoy it ? Why make this trust-deed at all ? Does this not rather show that Lewis Carusi, having great confidence in his brother Samuel, signed the will' written by Thornton Carusi, Samuel’s agent, (a student of law at the time), (Test’y 21-33), believing that by the words hope and trust, &c., he had created his brother a trustee to manage this property for his nieces after Lewis’ death, with interest enough therein to support himself ? Are not the words of this will calculated thus to deceive a man of ordinary intelligence ? If Lewis Carusi intended this property absolutely for Samuel, why was he so particular in defining the limitations to his nieces —inserting a clause to protect them from husband’s debts, &c. ? Again why should he have provided that if one of these nieces should die before Samuel Carusi, her share should fall to the survivor ? Did he not intend by this and expect that the survivors would take immediately upon the death of Samuel ? Look at his declarations after the execution of this will to Miss Wright (pp. 17 and 40-41), to Mrs. Howard (p. 22), and do they not show conclusively, either that he did not understand the legal effect of the terms of his will, or that he did not know what those terms really were ? He said that by that will he had provided for his nieces. How ? By leaving the property to somebody else absolutely, as counsel contend ; for, as defendants contend, Samuel had an absolute estate and nothing could go to his nieces, even if he had not exercised his power of disposal. Then nothing stands in the way of a construction to carry out the real intention of Lewis Carusi, but the rigid rules of law claimed by counsel, and those rules, if the eases we have cited are to govern this case as an executory trust, will not be allowed to defeat that clear intention.
    L. Gi. Hine for defendant:
    1. The existing wall was revoked by the deed of trust, and, therefore, did not constitute an appointment under it.
    The rule stated by Kent (vol. 4, p. 528) was adopted by the Supreme Court of the United States in Bosely vs. Bosely’s Ex’rs, 14 How., 390. It was there laid down “ that the same interest which the testator had when he made his will should continue to be the same interest, and remain' unaltered to his death, and that the least alteration in that interest is a revocation.” It is to be observed that Bosely’s case was from Maryland, and was a construction of the very statute before us. The ground of this rule has been differently explained. In some eases it is said to be that the alteration of the estate is evidence of a change of purpose on the part of the testator ; in others it is said that a revolution results because the testator is deprived of the estate, so that nothing is left for the will to operate on. 4 Kent, 528.
    The will could no longer operate by way of devise ; the beneficiary must take under the deed, or, rather, by conveyance from the trustee. See remarks of Mr. Justice Swayne in Ould vs. Washington Hospital, 95 U. S., 312; Hussey’s Case, Moore’s Cases, 789; recognized in Mayor of Baltimore vs. Williams, 6 Md., 235. In Hussey’s Case it was held that the antecedent will is revoked as a will, even when specifically referred to in the deed of trust as containing a declaration of the trust. It can only operate as if part of the deed.
    The cases in which it has been held, on the other hand, that a deed did not revoke an existing will, went on the ground that the deed had not altered the estate. For example, a mortgage, or a deed in trust to pay debts, has the effect to charge the estate with a lien, but not to alter it; and for that reason has been held not to revoke a will.
    And in Hughes vs. Hughes, 2 Munf., 309, it was held that a conveyance in trust during the life of the grantor, leaving the fee in him by reversion, did not revoke a previous devise. While this was a departure from the strict rule, the principle of that rule was distinctly recognized. It was admitted that an alteration of the estate devised would revoke the devise ; but it was held that a conveyance for the life of the grantor did not alter his estate at the time of his death. It is immaterial whether this latter proposition be true or not.
    It has been held, too, that a surrender of copyhold does not revoke an existing will. Spring vs. Byles, 1 T. Rep., 435. But this also was on the ground that the' estate was not altered by a mere surrender, and the case only confirms the general rule of law. Coke (Copyholds, sec. 39) says: “A surrender (where by a subsequent admittance the grant is to receive its perfecture and confirmation) is rather a manifesting of the grantor’s intention than passing away any interest in the posession; for till admittance, the lord taketh notice of the grantor as his tenant, and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord.” And in Doe, ex dem. Shewen, vs. Roat, 5 East, 132, the court said : “ Till admittance the legal estate continues in the surrenderor and descends to the heir.” In a word, a surrender had no more effect on the legal estate than a letter announcing the tenant’s intention to transfer his holding would have had.
    There are, then, no cases in which an alteration of the estate has not been held to be a revocation.
    2. If the will remained in force after the execution of the deed of trust, and this court had jurisdiction to set it up, it would give nothing to the plaintiff.
    The designation on which the plaintiff’ relies is contained in the following clause : “ As to all my property, real, personal and mixed, * * * I give, devise and bequeath the same to my brother, Samuel Carusi, to be held, used and enjoyed by him, his heirs, executors, administrators and assigns forever, with the hope and trust, however, that he will not diminish thé same to a greater extent than may answer for his comfortable support, aud at his death .the same, or so much thereof as the said Samuel shall not have disposed of by devise or sale, shall descend to my neices,” &c.
    It is unnecessary to argue the question, whether the devising words of this claqse, taken alone, give a fee simple. There has never been any contest as to the meaning of such words. See Redf. on Wills, vol. 2, p. 326.
    But it may be claimed that the “hope an.d trust ” contained in the same clause are precatory words which affect the estate so devised. ' We have, therefore, to consider how such words may operate, and whether the rule concerning them applies at all to the devise before us.
    It is the office of precatory words to prescribe an affirmative, active duty, which the devisee is to perform in disposing of the estate devised to him. In other words, they operate by converting him into a trustee; and they define his trust and point out the beneficiaries. See Story’s Eq., sec. 1068. But in the case at bar the words of hope and trust do not point out, of in any way relate to, any particular use or disposition of the estate devised to Samuel Carusi. They' do not pretend to furnish any suggestion as to how he should dispose of the property ; they merely express a hope that he should not unnecessarily consume it. No doubt they were intended to operate as a restraint, but there is no clue by which they can be construed to establish a trust.
    It may be claimed that these words are to be connected with the subsequent direction that, at Samuel Carusi’s death, so much of the property as he should not have disposed of should descend to the two neices ; and that, when so connected, they establish a trust for them. But it is to be observed that the testator did not leave that disposition to be made by Samuel Carusi; he made it directly himself. Instead of being charged with any duty in the matter, Samuel Carusi was entirely left out of all connection with it. The provision for the neices of the testator was a direct limitation over, not to be executed by the first taker. With that limitation we shall deal in its proper place. It is euough for the present to show that the devisee was not charged with any trust by the hope that he would not unnecessarily consume the property.
    .But if these so-called precatory words had actually amounted to a request that Samuel . Carusi should devise the property to his two daughters, they would still fail to charge him with a trust; for precatory words never create a trust where the devisee is clothed with absolute power to dispose of the property as he pleases. We have first to point out that Samuel Carusi was thus invested with absolute power of disposal.
    
      Any form of words from which the testator’s intention that the devisee may sell or devise may lje implied is sufficient to give the power. In Jackson vs. Bull, 10 Johns., 20, where the limitation over was of such property as the first taker should “ die possessed of,” it was held that the latter woi’ds gave power to alienate. In Ramsdell vs. Ramsdell, 21 Maine, 296, it was said “ that it was the intention to authorize her (the devisee) to dispose of the property * * * is clearly implied in the words c if any remains.’ ” So in Melson vs. Cooper, 4 Leigh, 408, where the devise was to W. and his heirs, and if he should die without a son, “and not sell the land,” then to G., it was held that power to sell was given; and in Riddle vs. Cahover, 4 Rand., 547, the same effect was given to the words, “ what shall be left.” See also Pope vs. Pope, 10 Simons, 1, where the words were, “ what property there may be.”
    In view of these authorities, there can be no doubt that Samuel Carusi took a fee, with absolute power to disposé of the estate in any way he chose.
    It is abundantly established by the authorities that, in such a case, words of request have no binding power, and, therefore do not create a trust. In Meredith vs. Heneage, 1 Simons, 542, where the gift was “ unfettered and unlimited,” but was coupled with strong words of recommendation, it was held by the House of Lords that no trust was created. These words were precisely equivalent to words giving absolute power of disposal. In Knight vs. Knight, 3 Beavan, 172, the Master of the Rolls (Lord Langdale) laid down the rule for determining whether precatory words created a trust, and said : “ If the giver accompanies his expression of a wish by other words, from which it is to be collected that he did not intend the wish to be imperative, or if it appears from the context that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or request, * * it has been held that no trust has been created.” In Johnston vs. Rowlands, 2 De Gex & Smale’s Rep., 336, there was a gift to a wife, “ to be disposed of by her will in such way as she should think proper,” but it was coupled with the strongest words of recommendation as to such disposal. Vice-Chancellor Shadwell said: “That the word 'recommend’ may amount, to a command in a particular instance, and may create a binding trust is certain. It is equally certain that the word is susceptible of a different interpretation—of an interpretation consistent with the legal and equitable power of the person recommended, to defeat the recommendation.” Accordingly the donee was held to have the gift free from any trust. So, also a devise to a wife at her sole and entire disposal, but with a recommendation, was held to give an absolute estate free from trust. But the most important authority is that of Negroes Chase vs. Plummer, 17 Md., 176, where the principle was stated to be, that words of request “ are deemed to be flexible in character, and must yield if the imputed interpretations be * * * so inconsistent with the other provisions in the will that both cannot stand together.” Precatory words do not control but are controlled by other provisions.
    It may be added that the whole doctrine of recommendatory trusts has fallen into disrepute. Story says : “ In more modern times a strong disposition has been indicated not to extend the doctrine of recommendatory trusts; but, as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.” He then sums up the restrictions of the later cases, as follows : “ Where-ever, therefore, the objects of the supposed recommendatory trust are not certain or definite ; whenever the property to which it is to attach is not certain or definite ; whenever a clear discretion and choice to act, or not to act, is given ; whenever the prior dispositions of the property import absolute and uncontrollable ownership ; in all such cases courts of equity will not create a trust from words of this character. Com. on Eq., secs. 1069, 1070.
    She has attempted, however, to establish by the proofs a specific understanding between the grantor and grantee,that she and her sister were to be the actual beneficiaries of the grant. "
    
      Now, it is to be observed that, as this understanding is wholly different from an understanding that the disposition of the deed of trust and will should be carried out, because it designates beneficiaries not designated in those instruments, it constitutes a case not alleged in the bill, and proof of it cannot be heard or received.
    The rule concerning the establishment of resulting and constructive trust is very strict. It is laid down that “ the trust must be clearly alleged in the bill, not only in terms, but all the facts must be set forth from which the trust is claimed to result. “Perry on Trusts, see. 137. See, also, Andrew vs. Farnham, 2 Stockton’s Ch., 91; 1 Lead. Cases in Eq., 282. It is plain, therefore, that the plaintiff cannot, on finding that she was not a beneficiary.under the deed of trust and the will, mend her hold by claiming to be a cestui que trust by reason of a specific and different understanding attached to the absolute deed. This latter ground, not having been alleged, cannot be proved.
    N If it were admissible, however, to prove a trust, arising from a specific understanding that the plaintiff and Genevieve Carusi were to be beneficiaries under the absolute deed, no such understanding has been found. The supposed proof is made up of declarations of the grantor and grantee, and these declarations are not made to bear upon the transaction in question. The rule is, that where it is attempted to convert a prima facie absolute gift into a trust by means of verbal declarations, the expressions must be used contemporaneously with, or in contemplation of, the act of disposition. Hill on Trustees, (60) 94; Kilpin vs. Kilpin, 1 M. & K., 537; Sonnerbye vs. Ardin, 1 Johns. Ch., 240; Tritt vs. Crotzer, 13 Pa. St., 451.
    It must be shown, too, that the grantee, Samuel Carusi, was a party to the understanding, before the deed was made. 1 Hilliard on Real Prop., 441; Hoge vs. Hoge, 1 Watts, 163.
   Mr, Justice Cox,

after making the foregoing statement of the case, delivered the opinion of court.

We will first examine the effect and operation .of Lewis Carusi’s will, as if it were the only paper executed by Lewis' Carusi. It contains two important provisions. First. It gives and devises all his estate to his brother Samuel Carusi, to. be held, used and enjoyed by him, his heirs, executors, administrators and assigns, forever. Secondly. At his death, it gives said'estate, or so much thereof as Samuel shall not have disposed1 of by devise or sale, to his nieces, including the complainant.

The first provision standing alone gives a clear fee simple éstate including unqualified powers of sale and devise. The second, which might otherwise be held to qualify the first, distinctly recognizes the power to- sell and devise in Samuel. Now Samuel, by his will of March, 1877, devised all this property to his wife for life, with remainder to all his children. There was, therefore, nothing left for this complainant to take under the strict terms of Lewis’ will, which only .gave to her and her sisters what should not have been ■devised or sold by Samuel in his lifetime. But it is maintained by the complainant that the fact of' the gift over to her and her sisters, after the death of Samuel, of itself, ■qualifies the estate first given to Samuel, and takes away from him the power of devising; that the gift over, in terms; of what has not been devised is fatal to the power of •deVise.' If this construction can be maintained, it must' be by reforming the will and striking out' from it the power to Samuel to 'devise; which is explicitly recognized. Can a ■court do this?

There are two classes of cases referred to in this connection. In the first, while the common law doctrine is recognized, that an estate may be given to one in fee simple, and yet, on a contingency, may be given oyer to another, by way of executory deviáe, which gift over is held to qualify and restrain the first taker’s control over the estate, yet it is further'held, that, where the first taker is, in terms, vested with “the power of absolute disposition, the devise over is inconsistent with this, just as any restraint upon alienation is inconsistent with a conveyance, *by deed, of a fee simple, and is void. See 4 Kent, 271; Jackson vs. Bull, 10th Johnson, 19; Jackson vs. Livingston, 15 Johnson, 169; Ide vs. Ide, 5. Mass., 504; Burbank vs. Whitney, 24 Pick., 154; Ramsdale vs. Ramsdale, 21 Maine, 293; McRee’s Ad. vs. Means, 34 Alabama, 372; Cook vs. Walker, 15 Georgia, 462; Fearne, sec. 667. According to these authorities, the devise over, under which the complainant claims would have to be considered void as inconsistent with the devise to Samuel.

Another class of cases consists of those which hold that the devise over cuts down and restricts a general gift to the first taker to a life estate, and which endeavors to reconcile such devise over with the power of disposition given to the first taker, by limiting the latter to his life interest. This is a matter of construction. These authorities do not undertake to strike out the power of disposition from the will, but construe it as confined to the life estate of the first taker, in order to harmonize his rights with those of the remainder man. See Smith vs. Bell, 6 Peters, 68; Lardner vs. Bridges, 17 Pick., 339; Terry vs. Wiggins, 47 N. Y., 516; Dean vs. Dumally, 36 Miss., and other cases. It is obvious, however, that if the first taker has the power to devise the fee simple after his death, the rights of the remainder man after his death would be wholly inconsistent with such power of devise. The two cannot be reconciled by any effort of construction. And this was recognized by the Court of Appeals of New York, in the case of Terry vs. Wiggins, 47 N. Y., 516. In such case, therefore, the title of the second devisee could not be maintained without rejecting from the will the power of devise conferred by it upon the first taker, which *no court can do. In this case, the devise over by Samuel Carusi, being only of such property as Lewis may not have -disposed of, by clear implication gives to Lewis the power to dispose of the property absolutely, i. e., in fee simple. It seems to us,-therefore, that, in this case, the devise over to the complainant and' her sisters is inconsistent with the estate conferred in the first instance on Samuel Carusi, and would, therefore, be void.

But admitting the interpretation and effect claimed for the will by thé complainant, let us see what effect is produced' by the deed in trust made subsequently.'

This trust is to manage the property for the use and benefit of Lewis, the grantor, during his life, and upon his death to convey to such person or persons .as Lewis may, by his last will and testament, or other paper writing under his hand and seal, by two persons witnessed, designate and direct. It is not “to such persons as he has designated,” referring to a certain designation in the past, nor to such persons “as he may have designated,” referring to a possible designation in the past, but to such as he “ may designate,” which is a clear and unmistakable reference to the future. In point of fact, he never thereafter executed any will designating and directing to what beneficiaries the property should go, and no such designation took place by any new act, unless by the absolute deed of October, 1872, which, if valid, would be fatal to the claims of the complainant. If the will of March, 1872, be admitted to be in due form so as to answer the purposes of a direction and designation under this trust, and it had never been revoked, it could be appealed to as establishing the rights of the complainant.. A will only operates at the time of the testator’s death. It is, therefore, whenever executed, in its effect, future, as to any act done by him in his life. As Lord Mansfield expresses it, in the case of Spring vs. Biles, 1st Term Reports, 435, note, such a reference means any will that shall be in force at the death of the testator.” A will, therefore, which- is to go into effect- after the date of an instrument like this, although executed before, fully gratifies the language referring- to persons whom the speaker may by his last will and' testament ■designate.

- But this will was revoked by operation of law. It is a well-settled rule of law that when a testator, after executing his will, chánges the legal seisin and conveys away the fee simple, the will is thereby revoked, upon the implication of law that the testator has changed his intention. See 4 Kent, 528; Bosely vs. Bosely’s Executors, 14 Howard, 390. And if this were not the rule, and iff the instrument I am uow considering were another will, instead of a .deed, still the first will would be considered revoked, because the second^ .disposition is entirely inconsistent with it. -.The first purports to give absolutely to Samuel, and after his death to> his daughters. The second gives neither him nor them, anything, but gives the estate to him in trust for such persons as the testator may designate in future.

It, therefore, follows that there was never any valid instrument in existence, after the execution of the deed in trust, which could be called a designation and direction in regard to the beneficiaries under that trust, unless it be the absolute deed, which will not avail' the complainant. To avoid this conclusion, it is sought to establish a connection between the will and the deed in trust. If the deed had given the estate “ upon such .trusts as I have by my last will declared,” the deed would, by reference to the will, have made those trusts a part of the conveyance, and would have established them irrevocably. The grantor could no more change them afterwards than he could recall the title. But it is obvious, that he did not mean to convey absolutelyupon the trusts of that will, because he clearly reserves to himself a power to designate the objects of his bounty in future by either will or other paper. The only construction left for the complainant to rely upon is to treat the deed in trust as if it conveyed for the benefit of such persons as the grantor. had already designated by his will, or might thereafter designate by will or other paper. To do this is to add language to the deed. It is not impossible that Lewis, the grantor, may have supposed that his will was unaffected by his deed iu trust and would take effect, unless subsequently revoked, and that he may have had this in mind when executing this deed in trust. But, in the first place, this is mere conjecture. There is no evidence of that fact, even if such evidence were admissible, to control the interpretation of this deed. In the next place, such evidence would not justify the court ini altering the terms of the deed.. ....... ■ •

• We are now concerned with the interpretation of a regular conveyance, under seal, and not a will; and certainly no parol evidence could be admitted of vague expressions uttered from time to time, in order to interpolate new terms into such a conveyance. In the next place, the will cannot be relied upon as a designation or appointment such as this trust contemplates, because it is inconsistent with the trust. The trust is that Samuel shall convey to somebody to be designated by Lewis, and that too upon the death of Lewis. The will does not direct Samuel to convey upon his brother’s death to any one, but simply gives the estate to him.

On these grounds, it does not seem to us possible to construe this deed in trust as if it read that the beneficiaries should be those who are named in the past will, or those who might be designated thereafter, but the deed in trust has reference to a future act of the grantor, and no such act ever took place, unless it was consummated by the absolute deed of October, 1872. The will, then, is entirely out of the case. The deed in trust left the title in Lewis for the benefit of heirs general in case of Samuel’s failure to appoint any special objects of his bounty. In that view the complainant would not be entitled to the relief she seeks, if there were no subsequent conveyance. It becomes, therefore, unnecessary to inquire into the validity of the subsequent conveyance of October, 1872, because, whether that be valid or not, the complainant fails to establish any title to relief.

The decree below is affirmed.

The Chief Justice dissented.  