
    *Bass and Wife and Others v. Scott and Others.
    October, 1830.
    (Absent Brooke, P., and Coalter. J.)
    Wills — Construction—Use Created by Devise — Effect-Testator devises and bequeaths real and per-vsonal estate to trustees, in trust for the equal use and benefit of testator’s four sisters, (naming them) and their heirs forever, to be managed as the trustees should think most conducive to the interest of each of the parties; two of the sisters being femes covert:
    Same — Saarae—Same—Same.—Held, 1. that each of the sisters took a fee simple as to the real, and the absolute property as to the personal subject, in her share of the trust estate.
    Same-Same — Same—Same —And, 2. that the legal title remains in the trustees, in order that they may manage the part of the subject intended for the. use and benefit of each sister, in such manner as the trustees shall think most conducive to the interest of each respectively.
    'Virginia Statute of Uses — Application —Uses Created by Devise.- ft seems that the statute of uses of Virginia. does not apply to uses created by devise, and transfer such uses into possession of the ces-tui que use.
    Charles E'armer, by his last will and testament, after making provision for his debts, and bequeathing one specific legacy, devised and bequeathed the whole of the residue of his estate to his brother Kelson Farmer, upon condition, that he (Kelson) should convey the whole of his own estate, real and personal (except^ that which he .acquired by his wife) to trustees, to be disposed of as the testator should by that his will afterwards direct. And then he devised and bequeathed one fifth of the estate, so to be conve37ed by his brother to trustees (named in the will) to be disposed of according to his will, to Marshall Farmer, Judith Waddell and Bally Farmer (to be equally divided among them) and their heirs: and he devised and bequeathed the residue thereof, to trustees, ‘‘in trust for the equal use and benefit of his (the testator’s) sisters, Betsey E'armer, Kitty Farmer, Polly Bass and Patience Radcliffe, and their heirs forever, to be managed as the trustees should think most conducive to the interest of each of the parties.”
    Nelson Farmer accepted the devise and bequest of the testator’s estate to him, upon the condition on which it was *given; and, in performance of the condition, conveyed the whole of his own estate, except what he had acquired by his wife, to the trustees named by the will, to be held to the uses thereby declared. As to the one fifth of this subject, which was given by the will, to Marshall Farmer, Judith Waddell and Sally E'armer, the trustees had no difficulty; but they doubted how they were to act in regard to the other four fifths, which the will directed them to hold in trust and manage for the equal use and benefit of the testator’s four sisters above named, and, therefore, hesitated to execute their trust.
    Whereupon, Christopher Bass and Pollv his wife, John Radcliffe and Patience his wife, Betsey Farmer and Kitty Farmer exhibited their bill, in the superiour court of chancery of Richmond, against the trustees, and Marshall E'armer, Judith Waddell and Sally Farmer, insisting that the four fifths of the subject given to them, real and personal, ought, simply, to be divided among them in equal shares, and conveyed to them, respectively, in fee simple and absolute property ; and praying the court to direct the trustees so to divide and convey the subject to them. 'The defendants, in their answers, submitted it to the court to determine and direct, whether they should divide and convey the subject according to the prayer of the bill? or, whether the trustees should retain the title, and hold and manage the property, as they should think best, for the use and benefit of the testator’s four sisters to whom it was given? or, how they ought to dispose of the subject, so as to fulfil the intentions and purposes of the testator?
    The chancellor was of opinion, that it was the intent and effect of the will, that the trustees should retain in themselves the legal title of the four fifths of the subject given to the testator’s four sisters, and hold and manage their respective shares thereof, as they should think most conducive to their interests, and this too in exclusion of the husbands of such of them as were married; and, to the end that the ^property might more certainly be preserved for their heirs, that the sisters ought to have only life estates in the use of their respective shares, which at their deaths should be conveyed to their respective heirs. And he decreed, that the whole subject should be divided into five equal parts; that one fifth part should be allotted to Marshall Farmer, Judith Waddell and Sally F'armer, and divided among them in equal parts ; and that the remaining four fifths should be divided into four equal parts and those fourth parts allotted in severalty to the trustees; and that one fourth part should be held in severalty, and managed, by the trustees, for the use and benefit of each of the testator’s four sisters, during her life, and at her death conveyed to her heirs.
    From this decree, the plaintiffs appealed to this court.
    The attorney general, for the appellants, and S. Taylor, for the appellees,
    submitted the case without argument.
    
      
      Virginia Statute of Uses — Application—Uses Created by Devise. — There seems to be a material difference between the English statute of uses and the Virginia statute. Bass v. Scott, 2 Leigh 356. The Virginia statute has not yet been judicially construed, except that, in the case just cited, it was considered as not extending toa devise. Jones v. Tatum, 19 Gratt. 733; Ocheltree v. McClung, 7 W. Va. 244; Bell v. Humphrey, 8 W. Va. 25. To the point that the ’Virginia statute of uses does not execute uses created by will, there being no general statute of uses, the principal case was also cited in Carney v. Kain, 40 W. Va. 807, 23 S. E. Rep. 655.
      See the principal case also cited in Dunlop v. Harrison, 14 Gratt. 258.
      Chancery Practice — Trust Estate — Directing Trustee to Convey Legal Title to Beneficiary. — In Carney v. Kain, 40 W. Va. 810, 23 S. E. Rep. 657, it is said: “A court of equity may direct the trustee to convey the legal title to the cestui que trust whenever by the language of the instrument, or in contemplation of the settler, such management and control ■ought to come to an end But this power of the chancellor is to be exercised according to a sound discretion; and the court ought to refuse to exercise it when, as in the present case, it was manifestly the intention of the testator that the control and management of the property should remain with the trustees. Bass v. Scott (1830) 2 Leigh 356. See also, the principal case cited on this point in note to Thom v. Thom, 3 Va. Law Reg. 732, 733; Carney v. Kain, 40 W. Va. 821, 23 S. E. Rep. 661; Armistead v. Hartt, 97 Va. 321, 33 S. E. Rep. 616.
    
   CABELL, J.,

delivered the opinion of the court. There is nothing in the will of Charles Farmer, to restrain the legal effect of the word “heirs,” so as to make his sisters take an estate for life only, and their children or next of kin to take by purchase. The sisters took a fee simple in the real estate, and the absolute property in the personal estate, devised and bequeathed to their use. The decree is, therefore, erroneous, so far as it restricts the interests of the sisters to their lives only, and gives it to their children afterwards.”

But, although it was the intention of the testator to give his sisters an interest equivalent to a fee simple, he did not intend to vest in them the Legal estate, nor to give them the actual management of the property: he chose to vest the legal title in the hands of trustees, and to give them the management of the property, according to their discretion, for the uáe and benefit of his sisters. This is a disposition which the testator had a right to make: and it ought not to be wantonly broken in upon. Our statute does not execute *uses created by will; we having no general statute of uses. It is true that a court of equity may, on its own original principles, direct a trustee to convey the legal title to the cestui que trust, whenever it may be proper that that shall be done; as in the case of a naked use. But this power is to be exercised according to a sound discretion; and the court ought to refuse to exercise it, when, as in the present case, it was manifestly the intention of the testator, that the management of the property should be at the discretion of the trustees, and not of the cestuis que trust. The decree *should, therefore, have directed a division of the prop-ertjr, and an assignment of one fourth part of the four fifths of the subject, intended by the testator for his four sistets, in severalty, to the trustees, to be held b3r them for the use and benefit of each of the four sisters, respectively, and their heirs forever, and managed by them as they shall think most conducive to the interest of the cestui que trust; reserving a right to the parties to apply to the court, from time to time, for farther directions, which future events may render necessary or proper; for it would be premature to give anjr opinion, at present, as to the powers, which the testator’s sisters, or their husbands, may have over their equitable interests.

So fhuch of the decree as conflicts with this opinion is to be reversed, and the cause remanded -to the court of chancery to be farther proceeded in according to the principles here declared. 
      
      This general proposition advanced by the learned judge arguendo, though founded on the words of our statute of uses, yet seems somewhat questionable; and as it may, in its application to other cases very different in their circumstances from this, be found inconvenient, it may not be improper, with all defence, to state the doubt. The words of the statute are; “By deed of bargain andsale, or by deed of lease and release, or by covenant to stand seized to use, or deed operating by way of covenant to stand seized to use, the possession of the bargainor, releasor, or covenantor, shall be deemed heretofore to have been, and hereafter to be. transferred to the bargainee, releasee, or person entitled to the use, for the estate and interest which such person hath or shall have in the use, as perfectly as if the bargainee, releasee, or person entitled to the use, had been enfeoffed with livery of seisin of the land intended to be conveyed by such deed or covenant.” 1 Rev. Code, ch. 99, § 29, p. 370. A devise of lands is a conveyance, but not one of the conveyances specified by the statute; nor do its words embrace a conveyance by feoffment, any more than a conveyance by devise, to use. Then, suppose the case of a feoffment, or a devise, to one to the use of another, simply and generally, without any discretion or control entrusted to the feoffee or devisee to use, the question would be, whether the statute would not execute the use. and give the legal estate to the cestui que use directly, without any formal conveyance to him by the feoffee or devisee to use? or would the estate of the cestui que use be only an equitable estate, so that he could not assert his right in an action at law. in his own name, upon the strength of the feoffment or devise alone? If such a case be not within the letter, is it not within the equity, of this remedial statute? If it be not, it will be for the legislature to consider, whether it will be wise to make the statute more comprehensive. As to personal estate, the statute certainly has no application to that; but, in the case of a gift or bequest of a chattel to one for the use of another: if nothing is required to be done with the subject by the trustee; if his intervention be nowise necessary to accomplish the declared purposes of the gift; the cestui que trust, I apprehend, is entitled to the possession, and the gift of the entire absolute use of a chattel, in whatever form, is equivalent to a gift of the thing itself. — Note in Original Edition.
     