
    
      Christopher Williman et al. vs Henry M. Holmes et al.
    
    There are three circumstances necessary to the execution of a use by the statute of uses: (1) A person seized to the use of some other person ; (2) A cestui que use, in esse; and (3) A use in esse in possession, remainder, or reversion. And where the use is transformed from an equitable to a legal estate, the same qualities, conditions, and limitations that -were applicable to it as a use follow it in its new condition as a legal estate.
    The statute does not execute a trust, where there is some act or duty to be performed by the trustee necessary to the scheme of the trust; and which could not be performed by the trustee if the legal estate passed from him under the operation of the statute.
    The conveyance or devise of an estate to trustees, for the sole and separate use of a married woman, is not such a trust as is executed by the statute.
    "Where an estate is devised to a trustee, in fee, ‘ for the sole use, benefit, and be-hoof ’ of a married woman for life, and after her death ‘for the sole use, benefit, and behoof’ of a person, or class of persons, who are in esse, and are sui juris, the legal estate in fee given to the trustee is cut down to an estate commensurate with the separate estate for life of the married woman, (an estate^?®' autre vie,) which it is his duty to preserve; and the statute forthwith executes the use as to the residue in the remainder-men, concerning whose interest the trustee has no special duty to perform.
    And so where the legal estate given to the trustee has not amplitude sufficient to enable him to perform the duties of his trust, his legal estate will be enlarged by implication to an extent commensurate with the objects and duties of the trust.
    "Where an estate is devised to one for life, with‘remainder to such persons as the the tenant for life, or any other appointor shall direct and appoint, and in default of such appointment, to a person or class of persons in esse, the remainder is vested notwithstanding the interposition of the power. The estate is vested in the remainder-men, subject to be divested by the execution of the power.
    In a devise by the testator to his ‘right heir at law, ’ the word ‘heir’ is nomen collectivum, and embraces all such persons as are entitled to take as in cases of intestacy under, the statute of distributions; and the estate devised being the same as that given by law, they will be considered as taking by descent and not by devise.
    
      Where an estate is sold by a decree in equity, it is sufficient to make the title good against all contingent remainders and interests, if the person who has the first estate of inheritance is a party before the Court; he being regarded as the representative of all those contingent interests that are dependent upon and are to succeed his estate. And it would seem, that, in a case where there was no vested estate of inheritance, but an estate for life, with contingent remainders and executory devises to persons not in esse, it would be sufficient if the tenant for life were properly a party before the Court. (Bofil vs. Bofil, 3 Eich. Eq. 1.)
    But where there is an estate for life with a vested remainder to persons in esse, who are within the jurisdiction of the Court, a decree for a sale of the estate is not binding upon the remainder-men, and does not divest their right unless they be parties.
    In cases of trust, where the trustee is seized of the legal estate in fee and is a party before the Court, there is a greater facility in giving a perfect title to the the purchaser, although all the parties in interest are not before the Court, inasmuch as the decree for sale operates upon the fee simple in the trustee, and passes that to the purchaser discharged of the equities of the cestui que trusts.
    
    Where the Court of Equity, in the exercise of its jurisdiction, decreed the sale of an estate, and the title proved defective because some of the persons who were tenants were not parties to the proceeding ; and the purchaser supposing that he had bought the entire estate greatly improved the value of some portions of the estate (water lots,) it was ordered, that the partition should be so made as to give to the purchaser the part of the estate so improved, without accounting for the improvements, the improved parts not being greater than his rightful share when he bought, and it being shown to the Court that such partition could be made without injury to the other parties in interest, 
    
    
      
      Before DaRGAN, Cb. at Charleston, February, 1850.
    Christopher Williman, by his will, dated December 26, 1818, inter alia, devised and bequeathed as follows :
    “ I give, devise, and bequeath unto Mary Peters, Gilbert Davidson and Margaret Bethune, and to their heirs and assigns forever, all those two houses and lots, situate on the east side of Meeting street, which I lately bought from Mrs. Gregorie ; also all that wharf, situate on South Bay, and the land attached to the same; also my lands at the head of Tradd street; also all that piece or lot of land, known in the 'plan of the Grove Tract as No. 2, containing about twenty acres of high land and about the same quantity of marsh; also all those two plantations on Combahee, known by the names of Boston Bottom and Walnut Hill; also one moiety or half, of all those two islands, situate between the Combahee and Bull rivers, both known by the name of Williman Islands, and one undivided moiety of thirteen hundred acres of marsh land adjoining them; also sixty negroes, &c., &c. In trust for the sole use, behoof and benefit of my daughter, Eliza Davidson, the wife of Gilbert Davidson, for and during the term of her natural life, and from and immediately after the death of my said daughter, m trust for the sole use, benefit and behoof of the said Gilbert Davidson, should he survive my said daughter, for and during the term of his natural life, and from and immediately after the death of the survivor of them, then in trust for the sole use, benefit and behoof of such of my children and grand-children, as the said Eliza Davidson shall, by her last will and testament, or by any deed under hand and seal executed in the presence of three or more credible witnesses, direct, limit and appoint, and in default of such direction, limitation and appointment, then in trust for the sole use, benefit and behoof of my right heir at law.”
    DARGAN, Ch. The very full and elaborately prepared statement of the facts, which has been furnished, and which I adopt, renders it entirely superfluous for me to preface my decree with the usual preliminary narrative. I, therefore, proceed at once to the consideration of the questions that are made in the pleadings, and that have been discussed in the argument.
    The great question of the case, and an interesting and important one it is in any point of view, is whether the sale made under the decree of this Court, in the suit of Eliza Davidson vs. Mary Peters and others, is valid against the remainder-men, who are the complainants in this bill, and are seeking to have that sale vacated so far as it affects their rights. In the threshhold, as it were, an important preliminary problem presents itself, which it is necessary to solve. In my judgment, much depends upon the solution of this question; which arises upon the construction of Christopher Williman’s will. Does the devise to Eliza Davidson create a trust estate ? Does the statute of uses execute the trust, and transfer the legal title to Eliza Davidson as to the life estate, on the death of the testator ? And again, does the statute of uses execute the use as to the remainder-men, and transfer the legal estate in the remainder to them, before the termination of 'the precedent life estate ?
    If Eliza Davidson had been a feme sole, there would have been specious reasons for the opinion, that the statute would have executed the uses on the death of the testator, and that she would forthwith have been invested with the legal title, discharged of the trust. But she was at that time the wife of Gilbert Davidson. And the form and language of the devise is peculiarly adapted for the creation of a separate estate in trust for the 'benefit of a married woman; and one, which the potential magic of the statute would fail to destroy. The estate is given to trustees, to whom the legal estate passes in the first instance. If it be such a trust estate as the statute would execute, it passes through and out of the trustees, eo instanti, and vests in the cestui que trusts. But if there be any thing for the trustees to do; if there be a duty imposed upon them in connexion with the trust, for the performance of which it is necessary that the trustees should remain seized of the legal estate, the statute then does not execute the use; but the legal estate abides with them until the executory trusts are performed. After the execution of the trusts, the title passes away from them, silently, and by operation of law. A trust to preserve the separate estate of a married woman, is of that class of trusts, which the statute of uses does not execute. The words of this devise, (“in trust for the sole use, benefit and behoof,” &c.) are technically expressive, (if any words in relation to such a devise can be considered as technical,) of an intention to create a separate estate in Eliza Davidson.
    It has been urged with much ingenuity and force, that notwithstanding the expressive form of the language, it is yet still a question of intention, whether the testator really did mean to •create a separate estate in Eliza Davidson. After the death of his daughter, Eliza Davidson, he gave the estate “ in trust for the sole use, benefit and behoof of Gilbert Davidson, should he survive,” &c. On the death of the survivor, the estate was to be held in “ trust for the sole use, benefit and behoof of such of my children or grand-children, as the said Eliza Davidson shall by her last will and testament, or by any deed under her hand and seal, executed in the presence of three or more credible witnesses, limit, direct and appoint, and in default of such direction, limitation and appointment, then in trust for'the sole use, benefit and behoof of my right heir.” It is contended, that the testator could not have intended to create separate estates in all these remainders, and as he used precisely the same form of language in reference to them, that he did in the devise to Eliza Davidson, he could not have intended to create a separate estate in her. The argument is ingenious, but its fallacy consists in assuming, that the testator did not intend what he has expressed. He may have been ignorant that the law does not permit indefeasible estates to be enjoyed by persons who are capable of acting sui juris. He may have supposed, that among his children and grand-children, or among his heirs at law, there would be females and feme coverts, who would be protected in the enjoyment of a separate estate ; and in reference to the estate which he gave to Gilbert Davidson, as well as that which he gave to his children, &c. he may have intended to make it inalienable, and not subject to debts. He may have been ignorant of his want of power to stamp such attributes upon an estate. He could not have used the word “ sole” as the synonym of “ several,” for two of the contingent interests were given to a class. His meaning in these subsequent dispositions of the estate may be ambiguous; but so appropriate is the language of the will to the creation of a separate estate in Mrs. Davidson, that its construction ought not to be affected, by the uncertainty of his meaning, when ho employs the same forms of expression in other and subsequent parts of his will. He seems to have intended to sow separate estates broad cast through his will; and if some of them have fallen upon stoney ground, and have proved ineffectual, and his language in relation to them becomes ambiguous or unmeaning, it will not prevent the separate estate in favor of Eliza Davidson from taking effect, where not only is the language appropriate, but the sex, relations and circumstances of the devisee are propitious to the creation and existence of such an estate. The will then created a trust estate for the sole use of Eliza, Davidson for her life, &c., which the statute of uses did not execute.
    The legal estate devised to the trustees was in fee. The use was limited to Eliza Davidson for life, remainder to her husband, Gilbert Davidson, if he was the survivor, for life, remainder to such of the children or grand-children of the testator as Eliza Davidson should by will appoint, and in default of such appointment, remainder to the testator’s right heirs. If the estate had been given in trust, for the sole use of Eliza Davidson for life, and at her death to the use of, or in trust for some ascertained individual, and on an event that was certain, it would certainly be a vested remainder. But for the interposition of the power of appointment, there could have been no doubt that the remainder to the right heirs of the testator was vested, and not contingent. Then, the order .of succession in the enjoyment of the estate, prescribed by the will, would have been thus: to Eliza Davidson for liferemainder at her death to Gilbert Davidson, if he was then living ; at his death, or at her death, if she was the survivor,'remainder to the right heirs of the testator. It may be doubtful whether this last is not a reversion instead of a remainder. If, by the words his “ right heir,” he means statutory heirs, (as I think he does,) it would be a devise of this residuum of the estate to the same persons who would be entitled to it by law, in case of intestacy. The rule is, that if a testator devises his lands to his heirs at law, without any restriction or modification as to the enjoyment or possession, they will take by descent rather than by the devise. But it will be found immaterial in the result of this case, whether the limitation to tbe right heirs of the testator will operate as a reversion or remainder. I will, for the present, speak of it as a remainder.
    Considering it as a remainder, it is valid; for it was made to depend upon an event that must happen within the period prescribed against remoteness. If the interposition of the power did not prevent its vesting, then it was also a vested remainder; for it was upon an event certain, (the death of the survivor of Eliza and Gilbert Dajidson,) and to persons in esse — the right heirs of the testator, who existed at his death as a class.
    Regarding the estate given to the right heirs as a remainder, I am of the opinion that it was vested and not contingent, notwithstanding the power to Eliza Davidson to appoint among the testator’s children or grand-children. The fee vested directly in the right heirs, subject to be divested by the exercise of the power of appointment. This is an abstruse branch of the law of real estate. Some of the rules are exceedingly artificial and finely spun, and some very subtle distinctions have prevailed on the subject. A question like this must depend mainly upon the authorities. On a reference to these, it will be found that there is some conflict; or rather, that there has been a change in the course of the English decisions. According to the second resolution in Lovies’ case, (10 Rep. 78,) where the donor by an indenture limited to himself an estate for life, with the power to lease, &c., and to the use of any persons to whom he should devise any of the estate, with a remainder over in tail, &c., this, and all the subsequent remainders were held to be contingent, and not to be executed till the death of the donor.
    In Walpole vs. Lord Conway, cited in the argument of Loe vs. Martin, (4 Term. Rep. 57,) from Barnardiston’s Rep. in Ch. 158, (and commented on by the Chief Justice,) money was directed to be laid out in lands, to be settled to the use of Lord Conway for life, remainder to his intended wife for life, remainder in trust for such child or children, and for such estates absolutely or conditionally, and in such proportions as Francis Lord Conway should appoint, and in default of such appointment, to the use of all and every tbe daughters, younger sons, and the heirs of their bodies, &c. One of the questions which arose was whether a son of one of the daughters, who was dead, was entitled to his mother’s share. And that depended on the question whether the remainders to the daughters were contingent, or vested and liable to be divested by the appointment. Lord Hardwicke held the remainders to be contingent. He said that “ Lord Conway had a power during all his life time to limit the estate among his daughters and younge^sons in such manner as he thought proper, and therefore during all that time the remainder over to those children, in default of such appointment, must have been contingent.”
    Put in Cunningham, vs. Moody, 1 Yes. Sen. 174, Lord Hard-wicke held a different opinion. The analogy of that case to the one I am now considering, is very strong. There money having been agreed, on a marriage contract, to be laid out in the purchase of lands to the use of the husband and wife for life, remainder to the children in such proportions as the parents should appoint, and in default of such appointment, to all the children equally, as tenants in common and not as joint tenants; the Lord Chancellor decided that the remainders were vested. After saying that the fee was not in abeyance, he observed: “ Nor does the power of appointment make any alteration therein; for the only effect thereof is that the fee which was vested, was thereby subject to be divested if the whole were appointed.” This case was adjudged by Lord Hardwicke upon great consideration. And Lord Ivenyon observed in Doe vs. Martin, that the opinion of his Lordship “ was peculiarly deserving of attention, because when the latter case was discussed, the former one of Walpole vs. Conway, where he had intimated a different opinion, was strongly pressed upon him; because, too, he decided the last case at a time when he had the assistance of some of the most eminent lawyers who ever attended the bar of that Court.”
    
      Toe vs. Martin, 4 ,T. R. 38, also furnishes a striking parallel. There, on a marriage settlement, lands were conveyed in trust to the use of the wife for life, remainder to the use of the husband for life, remainder to the use of all and every the children of the marriage, or such of them, and for such estates, as the husband and wife should appoint, and for the want of such appointment, to the use of all and every the child or children equally, if more than one, as tenants in common, and if only one, then to such only child, his or her heirs and assigns forever; remainder over. The deed of marriage settlement also contained a power authorizing the settlors to revoke the uses, and to sell and convey the lands, &c. The Chief Justice, after an elaborate argument, in which the whole of the previous decisions passed under review, following the decision in Cunningham vs. Moody, held, that the remainders to the children were vested remainders in each child when he or she was born, subject, however, to be divested by the parents exercising the power of appointment. Maundrell vs. Maundrell, 7 Yes. 567 ; Smith vs. Lord Qamelford, 2 Ves. jun. 698; Eearne Con. Rem. 226, 233; Sug. Pow. ch. 2, 4; Lord Raymond, 2 vol. 1150; Madoc vs. Jackson, 2 Bro. C. C. 588; 10 Yes. jun. 265. The conclusion at which I arrive is, that if the right heirs of the testator were entitled to take as remainder-men, and not by reversion, the remainder was vested, subject to ■have been divested by the appointment; which, however, as to the property in question was not executed.
    The next question which I will consider, is whether the statute of uses has executed the uses as to the estate, which the right heirs of the testator took in the property under the provisions of the will. My conclusion upon the question last considered was but a step to my conclusion upon this. I have held, that if they were entitled as remainder-men, the remainder was vested : And my opinion further is, that whether they take by way of vested remainder, or reversion, the statute executes the uses as to them, leaving in the trustees a legal estate only for the life of Eliza Davidson. According to this view, on the death of the testator, the trustees became seized permanently of the legal estate for the life of Mrs. Davidson, in' trust for her sole use. The statute forthwith executed the uses as to the remainder-men or rever, sioners, (as the case may be,) who at once became invested with the legal estate in fee, by way, of vested remainder, to take effect in possession on the death of Mrs. Davidson.
    The statute of uses by its express terms embraces estates in remainder and reversion. It declares “ that in every such case, all and every such person or persons, &c., that have or shall have any such use, confidence or trust in fee simple, fee tail, for term4 of life, or for years, or otherwise, or any use, confidence or trust in remainder or reverter, shall from thenceforth stand and be seized, deemed and adjudged in lawful seisin estate and possession of, and in the same houses, castles, manor lands, &c., remainders, reversions" &c., as the grantees to uses.
    “ There are three circumstances necessary to the execution of a use by this statute: 1st. A person seized to the use of some other person; 2d. A cestui que use, in esse; and 3d. A use in esse in possession, remainder or reversion.” 1 Cruise Dig. 412, 1 Rep. 126. When the use is transformed from an equitable to a legal estate, the same qualities, conditions and limitations, which were applicable to it as a use, follow it in its new condition as a legal estate. So that the execution of the uses in this case, in the right heirs of the testator, could not defeat the execution of tlie power of appointment, if Mrs. Davidson had thought proper to exercise it.
    I have already shown that the legal estate remained in the trustees for the life of Mrs. Davidson, because it was necessary (to preserve her separate estate) that they should be seized of the legal estate for her life. The statute will not permit the trustees to take a larger legal estate than is necessary to the performance of the executory trusts imposed upon them by the will. If a larger estate than is necessary for this purpose is given to them, it will be cut down by the statute, and shaped to meet the exigencies of the case. In Doe vs. Simpson, 5 East, 171, Lord Ellen-borough said “ that where the purposes of a trust can be answered by a less estate than a fee simple, a greater interest than is sufficient to answer such purpose shall not pass to them ; but that the uses in remainder, limited on such lesser estate so given to them, shall be executed by the statute.” In Curtis vs. Price, 12 Yes. 89, an estate in fee to the trustees was cut down to an estate per autre vie, on the ground that an estate of that duration was sufficient for the purposes to be answered. Shapland vs. Smith, 1 Bro. C. C. 75; Q-oodtitle vs. Whitby, 1 Burr. 229; JEdwards' Vs. Symonds, 6 Taun. 213; Poe vs. Nieles, 7 T. B. 433; Nash vs. Coates, 3 Barn. & Adolph. 839.
    So where an estate in fee is not given to the trustees, and such an estate is necessary to the execution of the trusts, their estate will be enlarged by implication to the extent necessary. In short, it is an established rule that trustees shall hold legal estates commensurate only with the necessities of the trusts. If the estate given to them is deficient, it will be enlarged by implication. If in excess, it will be cut down by the operation of the statute of uses, and such excess will pass to those in remainder.
    On looking into the will of this testator, I can discover no duties that were to be performed by the trustees, rendering it necessary for the legal estate to remain in them, beyond that of preserving the separate estate of Mrs. Davidson. It was certainly not necessary as to the remainder to Gilbert Davidson, nor as to the remainder or reversion to the right heirs of the testator. These were trusts that were executed by the statute, leaving, as I have before said, a legal estate in the trustees only for the life of Mrs. Davidson.
    Such being the state of the title, and Eliza Davidson, the wife of Gilbert Davidson, being entitled to an equitable and separate estate in this property for life, and her trustees being seized of a legal estate commensurate with her equitable interest, in conjunction with her husband, who was one of the trustees, on the 21st day of November, 1817, filed her bill in this Court against Mary Peters and Margaret Bethune, the other trustees. The bill described the estate, recited the devises of the will and the limitations, charged that the estate in its then existing form was unproductive, prayed a sale of a portion of the estate, and a change of investment, and alleged that such sale and change of investment would be conducive to the interests of those entitled in remainder, as well as of the life tenant.
    On the same day, Mary Peters and Margaret Bethune filed their joint answer, in which Gilbert Davidson, although a complainant, joined, and affixed his signature thereto. They admit the title as stated in the bill, and the unproductiveness of the property. They also state their belief, that if it was sold and the proceeds invested in other property, it would be advantageous to the complainant, and not injurious to those interested in the estate of Ch. Williman. And they gave their assent to the sale. The case was referred to the commissioner, (Th. Hunt,) who, on the 22d November, 1817, filed his report, recommending the sale prayed for in the bill, and stating it as his opinion that the sale would be for the benefit of the complainants, and of those interested in the reversion, or remainder of the estate of Ch. Willi-man. On the same day there was a decretal order confirming the report, and directing a sale by the commissioner on such terms, and at such time or times, at public or private sale, as he, by and with the advice and consent of the trustees of the complainant, may think most proper and advantageous to the trust estate. In pursuance of this order the property was sold, and conveyed by the commissioner, and this property so sold and conveyed, is the subject of controversy in this suit. The title of all the defendants has been thence derived. On the 17th November, 1820, the commissioner made a report of sales, which was on the same day confirmed. And again on the 19th February, 1821, he made a report of sales, which was also confirmed. The last report was a repetition in part of the first.
    The defendants also introduced in evidence another bill in equity, and the proceedings under it; in which Eliza Davidson was the complainant. In her first bill, she had stated that her trustees had purchased for her from Henry Middleton and Henry Middleton Rutledge, a tract of land called Jenny’s plantation, for the sum of $8,000, and that they had given their own bond for the purchase money, and a mortgage of the premises. One of the objects of the bill was to obtain the funds to pay for the Jenny plantation, and to confirm the purchase thereof for the trust estate, and to invest the surplus in more productive property. The bill so prayed, and the order of the Court was in conformity with the prayer of the bill. The debt contracted for Jenny’s plantation was soon afterwards paid, it is presumed, with the trust funds. Jenny’s plantation thus became substituted property of the trust estate.
    On the 17th November, 1823, Eliza Davidson filed her bill for the sale of the Jenny plantation, and other portions of the trust estate, not embraced in the former order of sale, on the alledged ground that the property was unproductive. And she prayed that the proceeds of the sale might be invested in public or private securities, yielding a certain income, and subject to the trusts of the will. Her husband, Gilbert Davidson, was then dead. She made the two surviving trustees, Mary Peters and Margaret Bethune, defendants, and also Maria J. Williman and Harriet E. Williman, daughters of the complainant, Ch. Williman, and Elizabeth D. Bethune, daughter of the trustee, Margaret Bethune. These last named defendants were infants, and the grand-daughters of the testator. They belonged to that class of persons, in whose behalf the power of appointment might be exercised, and this was the only interest they had in the estate. Harriet E. Willi-man is the same person with the complainant, Harriet Ashby. On the 18th November, 1823, by an order of the Court, Ch. Wil-liman was appointed the guardian ad litem of Maria J. and Harriet E. Williman, and Margaret Bethune was appointed the guardian ad litem of Elizabeth D. Bethune.
    On the 19th November, 1823, the trustees answered, admitting the facts stated in the bill, and assenting to the prayer thereof. And the infants, by their guardians ad litem, answered, admitting their belief of the facts, and submitting their rights to the protection of the Court. The answers of the infants were informal, to the extent of wanting the signature of the guardians. There was a reference to the commissioner, and’a report by him, recommending a sale, followed by a decree of the Court, confirming the report, and ordering a sale of thé property. By the terms of the decree, the proceeds were to be paid to Mrs. Davidson and the two trustees, to be by them invested in well secured and productive private or public securities, subject to the uses and trusts of the will. By virtue of this decree, the property was sold. But the title of none of the property sold under these last proceedings is brought in question in the case now before me. The last bill contained a recital of the proceedings under the first, and the only object which the defendants had in view, in the introduction, of this evidence, was to bring home to the complainant a knowledge of the former proceedings, and of the sale; and to deduce therefrom, and from his acquiescence, an implied sanction and confirmation of the same.
    Eliza Davidson, in the form prescribed by the will, executed her power of appointment in regard to various portions of the estate. The power was properly executed, and in behalf of persons falling within the class, to which its exercise was restricted. She thus gave the Meeting street lots and the South Bay wharf to Mrs. Ashby, and the Grove plantation to Mrs. Gracie. Under the power given to her in the codicil, she sold and conveyed one-half of Williman’s islands to Nathaniel Heyward. The title to this portion of the estate is not involved in the issues of this bill. The lands attached to South Bay wharf sold to I. E. Holmes and Wm. Drayton, the lands at the head of Tradd street sold to W. A. Holmes, the plantations called Boston Bottom and Walnut Hills sold to Wm. Mason Smith, are claimed from the parties defendant, in possession respectively of said real estate.
    The testator left five children, who were his heirs at law at his death, namely: Eliza Davidson, the devisee for life of this property, Mary Peters and Margaret Bethune, the trustees, Harriet D. Jough, who survived her husband and left an only son and heir, Wm. F. D. Jough, who is made a defendant, and Ch. Willi-man, the complainant. The latter has conveyed all his right and title to a qortdon of the property in dispute to tbé late James Ashby, whose widow and administratrix, Harriet Ashby, and his children, are joined as complainants in the bill. The comjdain-ants claim, that by the terms of the will, they are entitled to the whole of the property, the same being limited in default of the execution of the power “to the right heir” of the testator, and failing in that claim, they pray a partition, and to be put in possession of one-fifth part of the estate, as representing one of the five heirs of the testator.
    I have thus grouped together in a summary, and I trust sufficiently perspicuous manner, the material facts bearing upon the question, whether the complainants’ rights have been affected by the sale made under the decree of the Court, in the proceedings which I have described. The objection to the validity of the sale is easily stated; it is, that the complainant, Williman, and those claiming under him, are not bound by the decree, because he was not a party to the suit.
    My judgment upon this question follows inductively from my decision upon the questions previously discussed. Had I considered that the trustees were seized of the legal estate in fee— that the statute had not executed the uses as to the remainder-men, and cut down the legal estate given by the will to the trustees to a mere estate for the life of Eliza Davidson, the decree would have been for the defendants. In that case I should have considered the sale valid, and to have earned the fee to the purchasers. Hut as it is, I think the sale was only operative to the extent of conveying the life estate of Mrs. Davidson. If the trustees had been seized of the legal estate in fee, and merely on their own motion had sold and conveyed the same, the purchaser would have taken the fee. If the purchaser had bought without notice of the equity, he would have taken the estate discharged of the trust. If with notice, a trust would be implied against him in favor of the cestui que trusts. If the trustees had been seized of the legal estate in fee, then the fee would have been in parties before the Court, and the decree of the Court could have operated upon that estate. Eor certainly the decree could affect and divest all the right and interest of the parties to the suit. When, in the case supposed, the Court orders the fee to be sold ari'd conveyed by the commissioner, his deed carries that estate, and all the interests of the parties to the suit, precisely as if they had themselves executed the conveyance. The purchasers would take the legal estate in fee, discharged from the trusts or not, according to the equities. And I think the equities of the purchaser, in the case supposed, would be equal to those of the cestui que trusts, and that his legal title should prevail.
    The jurisdiction of this Court over trusts is peculiar and unlimited. And when one creates a trust estate by deed or by will, it is equivalent to committing the estate to the charge, and placing it under the administration of the Court of Equity. Such is the legal effect. The power of the Court to sell trust estates is not doubted. And when such an estate is sold under its decree, the Court is one of the contracting parties; is in fact the vendor. It assures the purchaser of its power to sell, and to make good titles. The purchaser thus becomes the owner of the fee, bona fide, and for valuable consideration. His equity is high. Would it not be hard to affect him with notice of equities, and to charge him with trusts which the Court itself has overlooked or disregarded ?
    When the Court assumes the administration and orders a sale, it is its duty to protect the rights and interests of all parties related to the estate. If the Court omits to make the proper administrative orders, or the persons to whom the Court commits the management or possession of the funds, should prove unfaithful,. and the fund be lost or wasted, ought that to affect the title of the purchaser ? I think not ? When he pays his money into Court, or into the hands of its confidential agents, that should discharge him. If the Court is the vendor, he is not bound to look to the application of the purchase money. An attempt to do so, might be regarded as an impertinence.
    I will not pursue the discussion on this point farther, for as to the case before me such discussion is abstract and speculative There was no trust beyond the life estate of Eliza Davidson. And the decree of the Court on account of its jurisdiction over trusts, could not operate on the title of the complainant, which was a vested legal title in remainder or reversion. There was no party before the Court representing either the legal, or the equitable estate, beyond the life estates of Gilbert and Eliza Davidson. The case of Vanlew vs. Parr, 2 Rich. Eq. 321, was not a case of trust estate. And there, several members of the Court of Errors, expressed the opinion that the sale was valid, though the tenants for life alone were parties to the suit. In that case, I incline to think I should have been of the same opinion. That case, however, differs from this in several important particulars. It was a case of partition, and the right of ordering a sale for this pui’pose, when necessary, or deemed necessary by the Court, is an incident to the jurisdiction in partition. This power is essential to the full and perfect exercise of this branch of equity jurisdiction. In this respect the practice of our Court is different from that of the English Chancery.
    Another essentially different feature in Vanlew vs. Parr, is, that there the remainders were contingent and not vested interests, and the remainder-men not in esse. But in the case before me, the interest of those who were to take at the termination of the life estate was vested ; and the parties not only in esse, but living within the jurisdiction of the Court. In England, the rule is, that the decree will be binding, if the person entitled to the first estate of inheritance is a party. And where the party who would be entitled to the first estate of inheritance is not in esse, it has been observed, that a decree in a suit where the tenant for life is a party, will be binding upon those who are to succeed him representatively. (Lloyd vs. Johnes, 9 Yes. 66 ; Pel-ham vs. Gregory, 1 Eden, 520; Giffard vs. Sort, 1 Sch. & Lef. 409; Reynoldson vs. Perldns, Amb. 564.) The doctrine thus laid down is not sufficiently broad to embrace the case I am considering.
    In Giffard vs. Sort, 1 Sch. & Lef. 409, Lord Redesdale, speaking of the rule above commented onj observes, that “ contingent limitations and executory devises to persons not in being, may, in like manner, be bound by a decree against a person claiming a vested estate of inheritance; but a person in being, claiming under a limitation by way of executory devise not subject to any preceding estate of inheritance, by which it may be. defeated, must be made a party to a bill affecting his rights.” This doctrine of Lord 'R.edesdale very fully and clearly expresses what I conceive to be the rule. The principle of representation to be deduced from the authorities, may be summed up in the following legal proposition ; that where the person entitled to the first 'estate of inheritance is a party before the Court, he is to be regarded as the representative of all those contingent interests which are dependant upon, and are to succeed his estate; and, consequently, a decree agaipst such a party will affect and bind those who are to succeed him. And, perhaps, the principle may be extended so far as to embrace the case, where there is an estate(for life, with a contingent remainder or executory devise to persons not in esse without any vested estate of inheritance interposed ; as in Vanlew vs. Parr. But where there is an estate, to one for life, with a vested remainder to persons living, and within the jurisdiction of the Court, I am aware of no decision or authority, which countenances the doctrine that a decree against the tenant for life will affect or'defeat the rights of the remaincler-men, they not being parties to the suit.
    The Court should, and does go a great length, in sustaining a title made under its own decree. Mere irregularities or informal-ities are in general not sufficient to invalidate it. Lloyd vs. Polines, 9 Yes. 37 ; Bennett vs. ffamil, 2 Sch. & Lef. 575. But the decree of the Court can only operate upon the title of the parties directly or representatively before it. The principle of representation is admitted in certain cases, for the sake of convenience, and on grounds of necessity. But beyond the limits established by the cases for its application, it is not to be admitted. The language of Lord. Bedesdale, in the case last cited, 
      Bennett vs. Samil, is worthy of attention. He says, after admitting that there was irregularity in the proceedings, error in the decree, and probably fraud between the parties to the suit, “ but as to Hart’s representatives and Hamil, the question is whether they are persons who can be affected, supposing the circumstances to be clearly true as stated ; namely, that there was error in the judgment of the Court in not giving day to show cause ; and error also in directing a sale under the circumstances. Now on that subject I must confess, after considering this a good deal, I think it would bo too much to say, that a purchaser under a decree of this description, can be bound to look into all the circumstances. If he is, he must go through all the proceedings from the beginning to the end, and have the opinion of the Court, that the decree is right in all its parts, and that it would be impossible to alter it in any respect. The cases warrant no such opinion. On the contrary, so far as I can find, the general impression they give is, that the purchaser has a right to presume that the Court has taken the necessary steps to investigate the rights of the parties ; and that it has in the investigation properly decreed a sale ; then he is to see, that this is a decree binding the parties claiming the estate, that is, to see, that all proper parties to be bound, are before the Court: And he has further to see that in taking the conveyance he takes a title that cannot be impeached aliunde. He has no right to call upon the Court to protect him from a title not in issue in the cause, and in no way affected by the decree.
    The decree must be for the complainants; but not to the extent of the claim set up in their bill. The ulterior limitation of the will is to the testator’s “ right heir at law.” In the designation of the person or the class of persons to take, the singular number is employed. The complainant, Ch. Williman, is the only son of the testator, and he claims alone to answer the description, and to represent the character of the right heir of his father, according to the English Common Law cannon of descent. In a country where the rights of primogeniture have been abolished, and the male and female line placed npon the most perfect equality in the distribution of intestates’ estates, I am at a loss to perceive one specious reason, lohy under the expression, the testator’s “ right heir at law,” the sou can be considered as the person intended, rather than the daughters, even though he is the oldest chi’d. Are they not all equally his heirs at law? Do they not equally answer the description ? The language of the will must be construed with reference to the law of descents in South Carolina. My opinion is, that the word “heir” in this connection is nomen colleciivwm, and embraces the whole of the testator’s statutory heirs. He left five children ; and Christopher Williman and the Ashbys, who claim under him, are entitled to one-fifth. The heir of Harriet D. Jough, who is a defendant, is also entitled to .one-fifth. The other three heirs, all of whom were'parties to the suit under which the property was sold, are, in my opinion, estopped. Put as they are not parties in this case, it would be supererogation to conclude any thing in regard to their rights.
    There is another question which I must now decide. The lands at the head of Tradd street, purchased by W. A. Holmes, were marsh. A portion of this tract, still retained by the Holmes’ family, has been at great expense filled up, converted into building lots, and thus greatly enhanced in value. It was all originally of the same value. The defendants are Iona fide purchasers for a valuable consideration. They had good reasons for believing their title to be valid. Under these circumstances, they have an equity, to retain the value and benefit of their improvements. It has been satisfactorily shown to me, that in the partition of the marsh land in the possession of the Holmes’ family, one-fifth thereof can be set off to the complainants, and one-fifth to the defendant, D. Jough, without encroaching upon the parts that are improved. And it is ordered that the partition hereinafter directed be made in this way, so far as regards the said marsh lands now in the possession of the Holmes’ family.
    It is ordered and decreed, that the complainants are entitled to one-fifth of the lands claimed and described in the bill, and that the defendant, W. H. D. Jough, is also entitled to one-fifth thereof, that a writ do issue to make partition thereof, and that the parties have leave to apply for orders to carry into effect this decree.
    It is also ordered and decreed, that each party pay his or her own costs.
    There was no appeal; the parties having acquiesced.
    
      
       Note by his Honor. The question, whether compensation is to be allowed to a tenant in common, who has made improvements upon the common estate, as against liis' co-tenants, has been attended with much difficulty. Not to allow it, where the improvements are valuable, in many cases is highly inequitable ; yet no safe rule of universal application can be laid down upon the subject. For in some cases, though the improvements may add to the permanent value of the estate, it might be undesirable, inconvenient, and even ruinous, for the co-tenant, who has not concurred in the improvements, to meet his share of the expense.
      That compensation for such improvements in ordinary cases, will not be allowed, may be regarded as the settled law of South Carolina. Thompson vs. Bostick, McM. Eq. 75; Thurston vs. Dickenson, 2 Eich. Eq. 317.
      But the obvious hardship of depriving the tenant, who has made the improvements, of any benefit from his expenditures, and of throwing the value of the improvements into the common estate for partition, will induce the Court so to modify its decree as to let the improving tenant have the benefit of his improvements, wherever it can be done without injury to his co-tenant. The high equity to be aEowed compensation for permanent and valuable improvements should prevail, wherever it can be done consistently with the rights of the other parties.
      “In suits in equity for partition,” says Judge Story, (1 Story Eq. \ 656,) “various other equitable rights, claims and adjustments will be made, which are beyond the reach of Courts of Law. Thus, if improvements have been made by one tenant in common, a suitable compensation will be made him upon the partition ; or the property on which the improvements have been made assigned to him.” The same author, (1 Yol. § 655,) says : “where one tenant in common supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements.” Town vs. Needham, 3 Paige, 546, 555.
      “ Courts of Equity will not only take care, that the parties have an equal share, but they will assign to the parties respectively such parts of the estate as would best accommodate them, and be of most value to them with reference to their respective situations in relation to the property before partition.” 1 Story Eq. \ 655.
      
      The disposition of the Court is always to give the tenant making the improvements the benefit thereof, as far as is consistent with the equity of his co-tenants. In Hancock vs. Day, McM. Eq. 298, it was held, that the occupying tenant of a tenancy in common is not bound to account for the rent of land rendered productive by his own labor. This case was decided on the authority of the preceding cases of Thompson vs. Bostick, and Kerr vs. Robertson, McM. Eq. 475. In the case .last mentioned, it was held, that one tenant in common was not bound to pay rent for land that he had himself cleared and reduced to a state of cultivation. See Lyles vs. Lyles, 1 Hill, Ch. 86 and Volentine vs. Johnson, lb. 49.
      
        Tims, it seems to be clearly settled, that the tenant in possession, who has made improvements, i^ entitled, to the whole of the profils resulting from such improvements, during the continuance of the tenancy in common. And it would seem to he equally clear, that where the tenant who has made improvements, has not improved more than his share, and that share with the improvements can be set apart to him in the partition without injury to the rights of his co-tenants, considered in reference to the state of the property as it originally stood, or as it would have stood, had no such improvements been made, the partition ought so to be made, as to give the tenant, who has spent his money, that part of the estate in which the expenditures have been made.
      In the case to which these remarks are attached as a note, the occupying tenant had the additional equity of having pm-chased bona fide, for a valuable consideration, the fee, and was ignorant, when making the improvements, of any outstanding claim of the plaintiffs against him for a partition.
    
   [The following dissenting opinion, in the Court of Errors, of his Honor Chancellor Wabduaw, in the case of Buist vs. Dawes, was not furnished the reporter in time to be inserted in its proper place:]

WARDLAw, Ch.

I dissent from the opinion of the majority on the only question decided by this Court, as to the quantity of the estate taken by James Boone Perry in the land devised to him by the will of Edward Tonge. On this point I adopt the conclusion of Chancellor DaegAN, that Perry took a fee conditional at the common law, and I consider it superfluous to add to the Chancellor’s reasoning, except a single observation for the sake of my own consistency. McLure vs. Young may be considered within the exception to the rule in Shelly's case established by Archer’s case, as interpreted in our case of Myers vs. Anderson.

A second question was referred to this Court by the Court of Appeals in Equity, namely, whether there can be a valid limitation by way of executory devise upon a fee conditional ? If there can be such limitation by executory devise, it is immaterial to the determination of this particular case whether J. B. Perry took a life estate or a fee conditional, as the testator prescribed that the ultimate devise over should take effect, if at all, at the termination of lives in being at the date of the will. On this second question some remarks will be made.

In considering this question, we must keep separate the doctrines applicable to a strict remainder and to an executory devise. A remainder is defined to be a remnant of an estate in lands or tenements, expectant on a particular estate, created together with the same at one time. Co. Lett. 143, a. It follows from this definition that where a fee is first limited there is no remnant of the estate which can be limited over. A fee cannot be limited on a fee as a direct remainder. Thus, if lands are limited to one and his heirs, and if he dies without heirs to another, the latter limitation is void. So, if lands are given to one and his heirs so long as J. S. has issue, and after the death of J. S. without issue to remain over to another, this remainder is likewise void, because the first devisee had a fee, though it was a base and determinable fee. So, anciently, before the recognition of executory devises after a fee simple, 'where one devised lands to the prior and convent of D. so that they paid annually to-the D.ean and Chapter of St. Paul’s, fourteen marks, and if they failed of payment that their estate should cease, and that the said Dean and Chapter and their successors should have it; it was held that this limitation over was void, because as the first devise carried a fee, nothing remained to be disposed of. Dyer, 33, a; 1 Eq. Ca. Ab. 186, pi. 3; Eearne, 373. This last case was decided in the reign of ELenTy VIII., in the interval between the statute of uses and the statute of wills ; to the combined operation of which statutes the establishment of executory devises is generally attributed. Lewis on Perp. 75. Yet, in a will, such limitations over, as are above mentioned, are good by way of executory devise, if dependant upon a contingency which must happen, if it happen at all, within lives in being at the time of the donation and twenty-one years, and one, or in rare cases, two periods of gestation afterwards. An executory devise has been defined to be a limitation by will of a future estate or interest in land, which cannot, consistently with the rules of law, take effect as a remainder. 1 Jarm. on Wills, 778. Without describing all the classes of limitations operative by executory devise where by law they cannot take effect as remainders, it is sufficient to mention, that by executory devise a fee may be limited upon a fee within the foregoing rule against perpetuities. No rule, however, is more clearly settled than this: that no limitation of a contingent estate shall be effectual as an executory devise, if it can possibly take effect as a remainder. That any particular limitation may operate as an executory devise, there must be a necessity for such operation in order to its taking effect at all, and an impossibility of its taking effect. as a remainder under the rules of common law. -But no limitation after or upon a fee, although it be a base or conditional fee, can operate effectively as a remainder ; and such limitation by will, if it have any effect, must operate by way of executory devise. This is the established doctrine as to conditional fees, notwithstanding some early doubts to the contrary, both in England and in South Carolina. Co. Litt. 13, a; Bail. Eq. 48.

It has never been doubted since the introduction of executory devises, that a fee could be limited by executory devise upon a fee simple absolute, where there was no objection on the score of remoteness ; and it is difficult to find any reason why the same doctrine should not be applied to a fee simple conditional. We have seen that both these classes of fees exhaust the estate, so that no remnant exists for the subject of a remainder ; and both equally need the benignant aid of Courts in the interpretation of wills, in giving effect to executory devises. If a fee simple conditional be a less estate than a fee simple absolute, and yet not so reduced as to be a particular estate of freehold, which admits a remainder, there seems to be stronger reason why Courts should recognize the jus disponendi of testators in' creating limitations over upon this estate. Littleton says : “ a man cannot have a more large or greater estate of inheritance than a fee simple and Lord Coke, commenting thereupon, says: “ this doth extend as well to fees simple conditional and qualified, as to fees simple pure and absolute. For our author speaks of the ampleness and greatness of the estate, and not of the perdurableness of the same; and he that hath a fee simple conditional or qualified, hath as ample and great an estate, a!s he that hath a fee simple absolute ; so as the diversity appeareth between the quantity and quality of the estate.” Co. Litt. 18, a. The prominent distinction between these two classes of fees simple, is in the description of the heirs to which the estates respectively descend; one to the heirs general, and the other to particular heirs, of the body generally, or restricted as to sex, and as to the body that shall bear them. This of course aifects the duration of the estate in the donee, and the reverter to the donor, but both are estates in fee simple of the same quantity. All the rules applying to estates in fee are equally applicable to the estate of fee conditional, as to its creation and limitation and the time of its continuance under the limitation, with the exception of the order of its descent and the right by alienation to bar the donor. 2 Prest, on Est. 320. A gift in fee conditional vests no right in the heirs of the body of the donee beyond what is common to other heirs under any form of gift. The person to whom the gift is made is tenant in fee, and as such he has the power of alienation in right of that estate immediately after it is conveyed to him; and his conveyance will estop his issue subsequently born, although it may not defeat the reverter of the donor if the condition of having issue be not performed. 2 Prest. Est. 304; Bac. Ab. Est. Tail. An estate in fee conditional is not, as was supposed in the 'argument, an estate for life in the first taker, capable- of being enlarged if issue be born to him, but it is an estate in fee in the first taker, defeasible upon the non-performance of a condition subsequent, that issue be born to him. 2 Co. Inst. 333. A fee conditional during its continuance is the entire fee simple estate. Adams vs. Chaplin, 1 Hill, Ch. 278, and is ,as fit a subject for executory devise as a fee absolute.

The statute de donis conditionalibus, 13 Ed. I. C. 1, which converted fees conditional into estates tail, is not of force in South Carolina, and the estate of fee conditional at the common law has been recognized as existing here by many of our cases. In England, since the statute, an estate tail is regarded by the Courts no.t as a full fee, but as a particular estate of freehold which is capa.ble of supporting a remainder. A fee conditional with us will be a most anomalous estate, if we hold it to be incapable as a particular estate of supporting a remainder, and yet exhausting the fee so as to leave no remnant for a remainder ; and in both aspects not the subject of executory devise- — -a fee and not a fee.

In Adams vs. Chaplin, and some other of our cases, the right which abides in the donor and his heirs after a gift in fee conditional, is treated as a mere possibility of reverter, which cannot be devised. This doctrine of course assumes that a fee conditional is the whole estate ; for contingent and executory estates, even a possibility clothed with an interest, are devisable. Selwyn vs. Selwyn, 2 Bur. 1131; Moor vs. Hawkins, 2 Eden. 342; Roe vs. Jones, 3 T. R. 88; 1 Ves. jun. 251; 7 Ves. 300; 17 Ves. 173; 4 Kent, 511. In England,, a reversion after an estate tail' may be devised. Badger vs. Lloyd, 1 Salk. 232; Sanford vs. Irby, 3 B. & A. 654; 8 Ves. 256; but there an estate tail is a particular estate of freehold capable of supporting a remainder, and the reversion is more than a possibility. The English statutes of wills, 32 and 34 Henry YIIL, authorize those persons only to devise who have an interest or estate in. fee simple; our Act of 1789 gives the power to-any person not under disability, “ having right or title to any lands, tenements, or hereditaments whatsoever.” 5 Stat. 106.

Upon the general question we are considering, we find hardly any thing as authority in the English cases. The statute de donis, so early as A. D. 1285, converted fees conditional in freeholds into fees tail; and the estate of fee conditional has not existed in England for nearly six centuries, except in copy-holds, (which are not within the statute,) in some few manors where, by custom, copy-holds cannot be entailed. The only case cited to us in the argument is one first heard in the Common Pleas'under the name of Doe d. Simpson vs. Simpson, 4 Bing. N. C. 333 (33 Eng. C. L. R. 373,) and afterwards in the Court of Exchequer Chamber under the name of Doe d. Blesard vs. Simpson, 3 M. & G. 929, (42 Eng. C. L. R. 483.) In tbis case, it was held, that a demise of copy-bold lands, in a manor where there was no custom of entail, to J.' S. and bis heirs, but if J. S. should die without leaving any child or children to M. B. and her heirs, passed a fee simple conditional to J. S. — that{child or children’ were used in the sense of issue ’ generally — that copy-holds being real estate, the term leaving under the distinction established in Forth vs. Chapman, 1 P. Wms. 663, and recognized in Mazyck vs. Vanderhorst, Bail. Eq. 48, was insufficient to restrict the contingency of J. S. dying without children, or its synoniine issue, to issue living at the time of his death, and that no remainder could be limited upon a fee conditional, and that the executory devise was too remote. Throughout the arguments and decisions, it was assumed and conceded, that an executory .devise upon a fee conditional was liable to no -objection peculiar to the estate, and was like every executory devise upon a fee, to be considered only with reference to the fact of remoteness. It may be remarked, too, that a fee conditional was implied in this case in the1 absence of technical words.

We have dicta but no authoritative 'decision in South Carolina upon the point in question. In Mazyck vs. Vanderhorst, Bail. Eq. 48, it was held that a fee conditional could not support a remainder, and that a limitation over upon the determination of that estate by efflux or natural expiry, was void by reason of remoteness as an executory devise. The ruling in Forth vs. Chapman was adopted, that the word leaving ’ would not as to real estate restrict failure of issue, othetwise indefinite, to the time of the death of the first taker. The whole discussion upon the case assumed, that there might be an executory devise upon a fee conditional, and the only dispute was whether the words of the will created an executory devise which must take effect within the time limited by the rule against perpetuities. The case is quoted in Adams vs. Chaplin, 1 Hill, Ch. 280, and is thus interpreted by Judge O’Neall : “ an executory devise over after a fee conditional, is too remote, and cannot take effect, unless it be accompanied by such words as will restrict the failure of the heirs of the body, to a dying without leaving issue at the death of the first taker.” Again, in Bedon vs. Bedon, 2 Bail. 248, Judge O’Neall says : if the estate of S. B. he construed a fee conditional, the estate in remainder to R. B. cannot take eífect as a contingent remainder ; for it would be a fee mounted on a fee, therefore void. It could not operate as an executory devise, for if the devisee took an estate in fee conditional, the limitation would be after an indefinite failure of issue capable of taking.pgr formam doni.” This is sound doctrine. A limitation by will to take effect, upon the natural efflux of a fee conditional is necessarily after an indefinite failure of issue and void for remoteness ; but if the objection of remoteness can be escaped, this estate, as other fees, admits of devises over. It may be remarked in passing, that it was properly argued in Bedon vs. Bedon, as it was determined in Simpson vs. Simpson, that the same words in the devise over could not perform the double office of implying a fee conditional and creating an executory devise.* In Edwards vs. Barksdale, 2 Hill, Ch. 197, the same eminent Judge remarks : “I hold there can be no such thing as a fee conditional where there is a good executory devise over. When the limitation is within a life or lives in being or twenty-one years after, it cuts down and destroys the effect of a previous devise to one and the heirs of his body, by showing that the testator did not look to an indefinite succession, and that he did not intend his devisee to have all the incidents of the common law estate of fee conditional, such as the power to alien or encumber the estate,” &c. “ This is the only means of reconciling tAvo rules of law: 1. That a limitation over after a fee conditional is void; 2. that a limitation over which is to take effect within a life or lives in being is good.” In general this is a good exposition of doctrine, but the fault in the reasoning, as it seems to me, is in supposing tha.t a restriction of the power of alienation in the first tenant existing upon, or subject to the performance of, the condition of having issue, destroys the fee conditional. I suppose that this error is the foundation of the learned Judge’s repugnance to the implication of fees conditional, in contempt of English authority. There is no reason why the qualified power of a tenant in fee conditional to alien the estate, dependant upon the birth of issue, may not be restricted by executory devise, which does not extend to a tenant in fee simple absolute having a general power of alienation, subject to an executory devise. The alienation of a tenant in fee simple absolute, with a devise over if he die without issue living at his death, is necessarily determined at his death without, issue then living ; and under like circumstances the alienation of the tenant in fee conditional would be determined. A tenant in fee simple absolute has a general power of alienation which may be restrained by executory devise ; a tenant in fee conditional has a power of alienation subject to the performance of the condition of having issue, which may be likewise so restrained by executory devise. The power of alienation is no more an inseparable incident of one of these fees than of the other. One of the most characteristic differences between a contingent remainder and an execu-tory devise, is, that the former may be barred, or prevented from effect by common recovery or other means adopted by the first tenant; whereas an executory devise cannot be prevented or destroyed by any alteration of the estate upon which it is limited. Fearne, 418. But I do not understand the argument, which deduces from this proposition any difference, as to the point in question, between fees absolute and conditional. The indestructibility of the devise over, applicable to both estates, is an indifferent circumstance in a question as to the capacity of either estate to support a devise over.

In Whitworth vs. Stuckey, 1 Rich. Eq. 411, Chancellor HARPER treats an executory devise upon a fee conditional as dependent for its validity upon the question of remoteness. I refer to Chancellor JOHNSTON'S circuit opinion in Hay vs. Hay as a judicious explanation of Whitworth vs. Stuckey.

Without further pursuing the inquiry, I announce my conclusion, that, upon principle and authority, an executory devise may be limited upon a fee simple conditional, if witbin the time fixed-by the rule against perpetuities.

JOHNSTON, Ch. and EvaNS, J. concurred.

Wardraw, J. I concur in so much of Chancellor Wardlaw’s opinion as holds, that an executory devise of real estate may be engrafted on a direct devise in fee conditional.  