
    Francis R. Armstrong v. Ebenezer Zane’s heirs, William Pitts and Wife, and others.
    A will, bequeathing _ an estate to A, and his heirs forevor, in trust for B, a feme covert, for life, and to such uses as, notwithstanding any coverture, she shall appoint, and after her death to the use of her heirs, is an equitable fee simple in the first cestui que trust.
    This is a Bill- in Chancery from Muskingum county, claiming a conveyance and partition of land to which the complainant makes title, upon the following facts :
    In 1831, Noah Zane made his will, which contains the following, among other provisions : After a bequest to his daughter, Elizabeth, another to his daughter, Cornelia, the téstator proceeds : “ To these daughters, I also give and devise all my real estate in the county of Muskingum, in the State of Ohio, to them and their heirs and assigns forever. And as to all the real estate hereby devised to my said daughters, Elizabeth and Cornelia, I devise the same to my son Eben'ezer, and to his heirs and assigns forever, in trust, to hold the same, to the separate use of my said daughters, during the natural life of my said daughters, and such use as she, notwithstanding any coverture, may direct; and after her death, then to the use of her heirs at law.”
    
      In 1833, the testator died. Elizabeth Zane, one of the devisees, married Pitts; and afterwards, in 1842, after attaining full age, by instrument, under seal, directed and required Ebenezer Zane, her trustee, to convey the land, absolutely, in fee simple, to Armstrong, the plaintiff, who brings this bill against Zane and Pitts and wife, to compel a conveyance from the ^trustee, under this appointment. [288 The questions are raised on demurrer to the bill.
    Alexander Harper for defendants in support of the demurrer.
    The first question presented by the demurrer filed by the minor heirs of Ebenezer Zane, deceased, to the complainant’s bill, is, that this is not a proper case for the exercise of the extraordinary powers of a court of chancery.
    The counsel for the heirs of Ebenezer Zane, claim that it is not; and that all, or any right the complainant may have, can be enforced in a court of law — that all the questions involved in the oase made by the bill, are purely legal, and that he seeks no relief that he may not obtain in a full, ample and adequate manner, in a court of law.
    Supposing the will of Noah Zane, giving to his daughter, Elizabeth, a fee simple, in the use of the lands described in the will, yet the aid of a court of equity is by no means necessary to enable her, and her husband, Mr. Pitts, to have the full benefit of the devise. For, “ a limitation of real estate to the wife in fee, for her separate use, without expressing more, will not enable her to dispose of it, during marriage, otherwise than by fine and recovery, because, no power having been given her by the instrument, to make any disposition of the pr-operty. she can only do so by the mode prescribed by the general law.” Roper on husband and wife, vol. 2, page 182. Thus we see that in England, Pitts and wife could, at law, convey all, or any estate, devised by Noah Zane to Mrs. Pitts, his daughter, by fine and recovery, and, consequently, the aid of a court of equity would there be invoked in vain. So in Ohio, under the provisions of the general law, for the execution and acknowledgment of deeds, any estate, acquired by Mrs. Pitts under the will of Noah Zane, may be conveyed to the complainant, without the interposition of this court.
    The power expressly given to Mrs. Pitts, by the devise in her father’s will, is, to direct the use during her life; not to ^appoint the [289 úse in fee, or after her death. If, therefore', she is entitled to the fee, in the premises described by complainant in his bill, upon a fair and proper construction of the devise in her father’s will, she may, by uniting with her husband, transfer it by deed, under the general law before referred to.
    
      But the complainant is entitled to no more than an estate,, for the life of Mrs. Pitts, in the real estate described in his bill. His claim may be coextensive with the devise to Mrs. Pitts; but no appointment, or instrument, directing Ebenezer Zane to convey to the complainant, in fee simple, the premises, can endanger it. By the devise, Mrs. Pitts takes no estate in the lands, either of inheritance or not of inheritance ; she takes a fee in the use, and no other or greater estate. The bill prays for a title in fee simple, and the case made by the bill will not warrant a decree for the complainant for any thing short of it; it, likewise, asks for partition. If the complainant can obtain a title, as we maintain he can, without the aid of this court, his seeking for partition of the premises confers on the court no equity jurisdiction. The law has made ample provision for the partition of real estate, and unless partition is a mere incident to the relief granted to a complainant, it is never ordered; the party is left to his remedy at law. Nor does the fact, that, by the devise in the will, the property in question is devised to Ebenezer Zane, and to his heirs and assigns, forever, in trust, for the separate use of Mrs. Pitts, furnish any ground for the interposition of a court of equity. It presents, purely, a legal question, and a court of law can settle the entire question, as to the estate the complainant is entitled to. For these reasons, the defendants claim that the demurrer ought to be sustained. If, however, the court should be of opinion that complainant presents, in his bill, a proper case for relief, a most important question presents itself for consideration : that is — What was the intention of the testator, as expressed in the devise to his daughter, Mrs. Pitts ? On this question, the defendants think there can be but one opinion. It is obvious that he did not intend to give her an estate in fe« simple in the premises, 29©] or why the ^necessity of devising it, in trust, to his son Ebenezer, and, afterwards, devising “ the same to the separate use of Mrs. Pitts, daring her natural life, and such use as she, notwithstanding any coverture, may direct; and, after her death, then to the use of her heirs at law.” It is possible, the testator intended, at first, to give to Mrs. Pitts a fee simple in the premises, but cogent reasons might be offered for his change of purpose; and he did change it, as is clearly evinced by the devise, and the whole will, taken in connection with it. If there is any repugnance in any part of the will, with the devise, the intention of the testator, last expressed, must prevail, and- the former intention be rejected. 5 Vesey, 207 ; 6 Vesey, 102. In this, the rule is different from that applicable to , deeds, owing to the “ different nature of the two instruments ; for the last will and first deed is always most available at law.”
    There is no principle more fimly established than that the intention of the testator shall prevail, unless it conflicts with some well established rule of law. Now, let mo ask, what rule of law will be violated bydeciding that the complainant is entitled to the use of the land in his bill described, for the life of Mrs. Pitts only. It does not create a perpetuity, place the freehold in abeyance, nor limit a fee upon a fee. I am not aware of any rule of law with which it conflicts, except it is the rule that “ where the ancestor takes a freehold, and by the same conceyance, whether by deed or devise, is limited to his heirs, the word heirs is a word of limitation, and not of purchase; and, thcretherefore, the fee vests in the ancestor commonly called the rule in Shelley’s case.
    I am aware that this rule was adopted in an action of ejectment, McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 464, by this court on the law side. In that case, the court say, it “ feels bound to apply the rule, until the law is changed by legislative enactment.” That legislative enactment has since been made, and now, the rule that the intention of the testator sliall be carredinto effect, any thing in Shelley’s case to the contrary, notwithstanding, is the law of the land. Swan’s Stat. 999, sec. 47. A like provision is to be found in the statutes *of New York ; and, moreover, by reference to the English [291 books, published since the abolition of tenures, it is manifest, that the courts in England are as anxious to evade, if not overrule, that rule, as they formerly had been to sustain it, when the various tenures were in force by which real property was held in that country, and which was the sole reason for the adoption of the rule.
    This rule has not been adopted, as far as I know, by the courts in the western states, or any one of them, with the exception of the case in the Supreme Court of Ohio, before referred to. That it should be found established as the law of this country, by the states, at the time of the adoption of the constitution, is not surprising; but the reason for its adoption in Ohio, or any of the new states, is not so easily perceived. And by reference to the decisions of the courts of Pennsylvania, whenever they have found it necessary to allude to that rule, it will be seen that it has but a very precarious hold in that state.
    But if by that, or any other rule, the complainant is entitled to the relief he asks, and Mr. Pitts, one of the defendants, shall, by the decree of this court, obtain a titlej in fee simple, to the premises described in the bill — (for it is not disguised, I believe, that that will be the result of a decree in favor of the complainant) — if the rule which the defendants contend for, in regard to the construction of wills, and which is coeval, at least, with that in Shelley’s ease, and which I must say, under favor, is, in my opinion, much more consistent with justice and common sense, is not to prevail, I ask, on the part of the defendants, whom I represent, that they be not taxed with any part of the expense of this litigation, whether it be the taxable costs, or the fee of counsel. ■ Ebenezer Zane was but a trustee, and could not safely act, in a case so important in principle, and where so large an amount of property was involved, unless by direction of a court, who could finally settle all questions connected with the trust. His minor children, who are now defendants, and for whom I appear, are, surely, in a situation no less favorable.
    *Goddard and Converse, for complainant.
    The complainant claims that he is entitled to a conveyance, in fee simple, from the trustee named in the will, of the undivided half of the premises mentioned in the bill; and, also, to partition. As to the partition, there is no doubt, or dispute. We shall, therefore, confine ourselves to the question, as to the right to the conveyance prayed for.
    Upon this point, we maintain, that, under the will, the entire fee simple of the undivided half of the premises belongs, in equity, to Elizabeth Pitts, and that the trustee is bound to convey as she may direct.
    First: Because the power of appointment, given by the will, is a power over the whole estate which the testator had in the land. That the testator designed to give the control and disposition of the fee to his daughter, is put beyond a doubt, by reference to the first clause of the devise now in question. -It is as follows ;
    “ To my daughter Elizabeth, to her heirs and assigns, forever, I give and devise the lots numbered three and eleven, in the sixth square of the town of Wheeling, in what is called the lower town ; and to my daughter Cornelia, and to her heirs and assigns, forever, I give and devise the lots number four and twelve, in the said part of the town of Wheeling. To these daughters I also give and devise all my real estate in the county of Muskingum, in the state of Ohio, to them, their heirs and assigns, forever.”
    He gives the land to his daughter, her heirs and assigns — the strongest language known to the law, to pass an estate in fee. If this clause stood alone, there would be no doubt about the case. Is this intention, so clearly ánd strongly expressed, controlled by the superadded clause, declaring Ebenezer Zane .trustee, to hold the premises to the separate use of the daughter, and such use as she may appoint? That clause is as follows :
    “ And as to all the real estate hereby devised to my said daughters, Elizabeth and Cornelia, I devise the same to my said son Ebenezer, and to his heirs and assigns, forever, in *trust, to hold the same [293 to the separate use of my said daughter, during the natural life of my said daughter, and such use as she, notwithstanding any coverture, may direct; and after her death, then to the use of her heirs at law.”
    By this provision, the testator clearly intended nothing more than to place the premises in such a situation, that, in the event of his daughter’s marriage, she should not be deprived of any benefit in, or control over them, without her consent. It was not intended to abridge her rights, but to enlarge them. It would be a most unnatural construction to hold that a provision, manifestly intended as a protection against the incidents which the law, to the prejudice of the wife, annexes to marriage, should now be turned into an instrument to take from her the right to the fee, clearly vested in her by the first clause of the devise. The trust is created, that she may, in the event of her marriage, be able to have the estate to her own “ separate use, and such use as she, notwithstanding coverture, may direct.” It was intended to be more beneficial to her than the devise would be, resting upon the first clause alone. It was to make her more fully and absolutely owner, than, by the rules of law, in the event of her marriage, she would be, without such provision. The object was to guard against the operation of law; not against her own voluntary act. And now, to hold that she has lost the power to appoint, or dispose of the fee, will be to convert that which was designed as a shield to protect, into a sword to injure, The limitation is, “ to hold the same to the use of my said daughters, during the natural life of my said daughters, and such use as she, notwithstanding coverture, may direct; and after her death, to the use of her heirs and assigns at law” — the testator evidently contemplating the marriage of his daughter. It will be observed, that, although the appointment by the daughter is to be made during her life, yet there is no limitation as to the quantity of the estate which she may pass under this power of appointment. The power, therefore, has no other limit, as to the estate to be appointed, than is furnished by the extent of interest given by the former ^clause. To confine the estate, to be conveyed under her ap - [294 pointment, to an estate for her life, or any estate less than a fee, will make the will contain inconsistent provisions. The clause devising the estate to the “ daughter, her heirs and assigns,” has its proper effect under the construction contended for by us. The other construction, in effect, strikes that clause from the will. The view taken by the complainant harmonizes the otherwise conflicting provisions. It protects the daughter from the disabilities arising fro m marriage, and enabble3-her to exercise the same control over the property after marriage as before. She can make the estate available to the extent to which it is given her by the former clause, whenever she sees proper to do so, by the exercise of the power of appointment,, directing the fee ; and, in case she omit to exercise this power during her life, the estate, the fee, vests just where it would vest if no trust interposed— in her heirs at law. In short, the first clause defines the quantity of interest — the estate — which the daughter should take. The second clause has reference only to the mode of enjoyment, and manner of disposing of that estate. This view is confirmed, by the consideration, that the father feels more affection for the daughter, whom he has seen, than for the distant and unknown heirs, whom he has not seen. The opposite construction inverts the rule of nature. Upon that construction, the distant heirs are preferred, for they have the fee, while the daughter is confined to a life estate.
    The general intent of the testator, as shown by the former part of the will, is to give his daughter the fee ; and that general intent must prevail, to the exclusion of the particular intent, (having reference only to the mode of enjoyment,) in cases where the two intents are inconsistent. Goodrich v. Lambert, 10 Conn. 452. We read this devise as if the words “ and in case she fail to appoint ” were inserted before the limitation to the heirs at law of the daughter, so that the clause would run thus : “ and such use as she, notwithstanding any coverture, may direct; and, after her death, in case she fail to appoint, then to the use of her heirs at law.”
    ^Second : But this case presents another aspect. Put out of view, altogether, the first provision, giving the foe directly to the daughter; suppose that the last clause of the devise, interposing the trustee, stood alone, without the benefit of the first clause, to shed light upon the meaning of the testator; and we now stand upon ancient ground, super antiquas vías, opened up long since, by the rule in Shelley’s case, conducting us, without difficulty or doubt, to the construction which the law biads upon this form of devise^
    
      This rule is well defined by Preston, who says, “ Where a person: takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and, afterwards in the same deed, will, or writing, there-is a limitation, by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or the heirs of his body; by that-name in deeds, or writings of conveyance, and by that or some such name in wills, and as a class or denomination of persons, to take in succession from generation to generation ; the limitation to the heirs-will entitle the person, or ancestor himself, to the estate or interest imparted by that limitation.” Preston on Estates, 263. The rule: applies in all cases where the estate for life and that in remainder are of the same quality — as where both are legal, er both equitable ; although it does not apply where one is legal and the other equitable. (Preston on Estates, ut supra ; also, 266, 382 ; 6 Cruise’s Digest, 310, title xxxviii, Devises, chap. 14, sec. 22, et seq. ; 4 Kent’s Com. 219.)-In this case both estates are equitable. That the rule is in force in Ohio, was declared, as to legal estates, in the case of McPeely’s Lessee v. Moore, 5 Ohio, 465. The foregoing authorities show that the-rule is of the same application to equitable estates as to legal. The ease of McWhartonu. Agnew, 6 Paige’s Chancery, 111, is directly in> point, to show that equitable estates fall within the rule ; .and, also, to show its application to a trust estate, created by the same words contained in the present devise.
    *The exception to the rule, in cases of equitable estates, is in [296-favor of marriage articles, (in which the issue of the marriage are especially regarded, and are looked, upon by a court of equity as purchasers,) and executory trusts. This expression — “ executory trusts”' —may, at first view, mislead. It is not well selected, to distinguish the class of cases to which it refers, and to express what is intended. In one sense, and that the most usual and general, all trusts are, in the books, called executory, which remain unaffected, in England, by the statute of uses; and those are trusts executed, upon which that-statute operates. But that is not the distinction contemplated in this class of cases, having reference to the rule in Shelley’s ease.
    The executory trusts, here referred to, are those trusts, for deelaring- or settling which, there is an agreement only, which looks forward to-a proper form of settlement, or conveyance, to be thereafter made, or a direction, in a will, that property shall, in futuro, be settled upon-, certain trusts, and the parties are obliged to resort to a court of equity-to obtain the proper legal conveyance or instrument, establishing and declaring the trusts. A trust executed, in contradistinction to this ■species of executory trusts, is a trust which is fully established and declared by the party creating it, and which has no reference to any future conveyance, or instrument to be executed, either by himself or others, for the purpose of perfecting the trust. It is where the party ■executing the trust has, in the language of one of the English judges, “ chosen t’o be his own conveyancer.”
    “ Trusts executory,” says Preston, “ are peculiar to marriage articles, and to those instruments, whether deeds or wills, in which, by the express provisions of the instrument, the trustees are to convey, settle, or assign the lands, on which the instrument is to operate, or to purchase land with money intrusted to be laid out in real estate, thereby showing that the parties have a further conveyance in their prospect and contemplation.
    “ The mere circumstance that the party covenants to do an act, or directs a conveyance to be made, will not, of itself, make the trust ex-ecutory.
    “ The conclusion that a trust is executed or executory, must depend on the quo animo — on the inquiry, whether another instrument •be in the contemplation of the party, as the act which is to give full and complete effect to the principal object he has in view. Children, as purchasers, are always understood to be the main objects of marriage articles, and, also, of deeds, and even, except as is afterwards noticed, wills, directing that lands to be purchased, or lands of which the testator is the owner, shall be settled or conveyed; unless the settlement or conveyance is to be made, with reference to particular uses, or upon trusts, and the legal operation and effect of the uses and trusts are already fixed. When the uses and trusts are already ascertained, the trust is not considered as executory. That point was decided in Roe v. Astrop, and in Austen v. Taylor ; and particulary in the latter of these eases, and the recent case of Brouncker v. Bagot.” Preston on Estates, 387. Vide Roe v. Astrop, 2 Black. 1228 ; Austen v. Taylor, Amblin, 376; Brouncker v. Bagot, 1 Merrivale, 271. Again: Preston, 405, says that the trusts are executory where the will shows that the intention of the party was that his directions should not be considered complete and conclusive, but, rather, as minutes, from which more full and correct limitations are to proceed.
    In the case of Wood v. Burnham et al., 6 Paige’s Chancery, 513, which was a case where future conveyances were to be executed by the trustees, the distinction between executory and executed trusts, in regard to the rule in Shelley’s case, is well explained. See, also, the same ease before the Court of Errors, under the name of Tallman v. Wood, 26 Wend. 1, and the authorities referred to in the arguments, pp. 13, 14 and 17 ; 4 Kent’s Com. 218. The devise before the court is, clearly, not an executory trust, but an executed trust, within the meaning of the authorities cited.
    But, as in cases of executory trusts, the rule is departed from, only when the party has clearly expressed a different intention from that which flows from the rule itself; and, as the intention of the testator in this case, as already shown, is consistent *with the rule — the [298 intention and the rule alike giving the fee — it is unnecessary to enter into a discussion of the question as to when executory trusts arise, and how far the rule may be modified by them.
    By the “ act relating to wills,” now in force, the rule in Shelley’s case is abolished. Swan’s Stat. 999. This act was passed March 23, 1840, and operates upon all wills made subsequent to that time. The will of Noah Zane, now before the court, was made, and had taken effect, by the death of the testator, before the passage of this statute. It is not, therefore, affected by this subsequent act of the legislature. It has been so decided by the Chancellor, and, also, by the Supreme Court of the State of New York, upon a similar section of the statute of wills, in New York, abrogating the rule in that state. De Peyster v. Clendening, 8 Paige’s Chancery, 295, 304 ; Shoonmaker v. Sheely, 3 Hill, 165.
    As to the right of married women to dispose of property limited to separate use, see Clancy on Husband and Wife, Chap. 5, 293 ; Chap. 7, 308 ; Ibid. 321; Standford v. Marshall, 2 Atkyns, 69 ; Jacques v. Methodist Episcopal Church, 17 Johns. 548. In the last ease, the court decided that a feme covert, with respect to her separate estate, is to be regarded, in a court of equity, as a feme sole, and may dispose of her property, without the consent of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. It was further decided, that, although a particular mode of disposition was specifically pointed out in the instrument or deed of settlement, it will not preclude her adopting any other mode of disposition, unless there are negative words, restraining her power of disposition, except in the very mode so pointed out.
    That the power of appointment will not prevent the application of the rule, see Preston on Estates, 383; 6 Cruise’s Digest, 310 ; Hayes on Estates, Proposition xv, p. 17, in 5 Law Library, 9 : Bale v. Coleman, 1 P. Wms. 142.
    In whatever aspect we look at this devise, whether as a question of 299] intention, or in reference to this time-honored rule *in Shelley’s case, the result is the same — the right of Mrs. Pitts, the daughter of the testator, to direct the conveyance of the fee. This case furnishes one instance, at least, where this stern rule does not conflict with the intention of the party limiting the estate, but seems to carry that intention into effect. Mrs. Pitts having this right to dispose of the fee,, it became the duty of the trustee to convey to the complainant, as she-directed. All the books lay it down as one of the first duties which a trustee owes to his cestui que trust, to convey the legal title as the cestui que trust may direct.
    We ask, therefore, that the court decree the conveyance, as prayed for, and that partition be had.
   Lane, C. J.

The right to sustain this suit depends upon the nature and extent of the interest which Elizabeth Zane held under this bequest. Taking both clauses of the will together, it gives Ebenezer Zane an estate in fee, to hold in trust for the separate use of his daughter Elizabeth, during life ; and, after her death, to the use of her heirs at law, with the power of appointment, separate from any ineapacity from coverture. Not only from the direct terms of limitation, but from the absolute powers of appointment (5 Mass. 500; Preston on Estates, 420 ; Institutes, 223 ;) it vests a fee simple in equity ; an equitable fee.

It affords a very obvious example of the application of the rule in Shelley’s case; the limitation of an estate to one, and the remainder of the same estate, both being of the same nature, or both equitable, to her heirs, by the same instrument. The power of appointment is, therefore, rightly exercised, and the plaintiff is entitled to & decree. King’s Administrators v. King’s Heirs, decided at this term.

But as this suit is against a trustee, in relation- to trust estate,, demanding what he might rightly hesitate to grant, except under the protection of the court, the plaintiff will be charged with the costs.

Decree for complainant.  