
    * Ezekiel Newhall versus Thaddeus Wheeler.
    
      A conveys land for a valuable consideration to B, C, and D, selectmen of the town of H, to them and their successors in the said trust of selectmen, for the time being, for the use of E, and, after his death, if any of the premises should remain, then to E’s heirs forever; to hold, for the use aforesaid, at the discretion of the grantees ; E being in possession of the premises before and after the conveyance until his death, and having devised the same to his wife in fee : — It was held that B, C, and D look a legal estate in trust for £ and his heirs; that, as the legal estate was in trust, it must be commensurate with the trust, and therefore was an estate in fee simple; and that E had an equitable fee simple, which he might lawfully devise.
    This was a writ of entry sur disseisin, sued by the demandant to recover his seisin in fee simple of a parcel of land in Pepper ell, in this county, against the tenant.
    The action was tried upon the general issue at the sittings here after November term, 1808, before Parker, J., when a verdict was taken for the demandant, subject to the opinion of the Court upon a question reserved by the judge.
    From the judge’s report it appears that both parties derive their title under Josiah Hunt, who, being seised in fee of the premises, conveyed the same to Joshua Simonds, who afterwards conveyed the same by deed, expressed to be for the consideration of fifty-pounds, to Samuel Cumings, Leonard Whiting, and John Goss, the selectmen of Hollis, in the state of New Hampshire, to them and their successors in the said trust of selectmen for the time being, for the use, benefit, and behoof of the said Hunt, and after his decease, if any of the premises should remain, then to Hunt’s heirs forever ; to hold for the use aforesaid, at the discretion of the grantees, with a warranty against all persons claiming under Simonds, the grantor. Hunt remained in possession of the premises from the time of executing his conveyance to Simonds, until his death ; and he devised the same, by a will duly executed to pass real estate, to his wife, Elizabeth Hunt, in fee simple, who on his death entered, claiming under that devise, and continued in possession until the premises were duly levied upon by an execution against her to satisfy the judgment creditor, whose estate in the same was legally conveyed to the demandant.
    The heirs of Simonds were admitted to defend under the tenant.
    If Josiah Hum had a fee simple under Simonds’s convey to Cuming» and others, selectmen of Hollis, the verdict was to stand, and judg ment to be rendered accordingly; otherwise a new trial was to be granted.
    *The cause was argued at the last October term, in [ * 190 ] this county, and again at this term by Lawrence, for the demandant, and Richardson for the tenant.
    
      Lawrence.
    
    The tenant has no title to the demanded premises, other than his possession, except it be from the heirs of Simonds. It is very apparent from the deed of Simonds, that he intended thereby to convey all the interest he had in the premises. The demandant certainly has equity to support his title; and I trust the Court will be of opinion that the law also is in favor of it. Such construction must, however, be given to the deed, as will effectuate the intention of the parties, if it can be done consistently with the rules of law ; and to effectuate the intention of the parties to this deed, it must be construed to convey an estate of inheritance in Hunt.
    
    The tenant’s construction of the deed is, that it is a bargain and sale, vesting the legal estate in Cumings and the other grantees, during the life of Hunt, in trust for him, and the remainder to Hunt’s heirs, who take as purchasers.
    Before considering the objections to this construction, I will consider the nature of a trust and use, with a view to show the difference between them.
    Trusts in England now are what uses were before the statute of 27 Hen. 8. The object of that statute was to destroy the double property in land, which had been introduced by the invention of uses ; for this purpose enacting that the legal seisin and possession should be annexed to the use.  The statute was intended to destroy trusts as well as uses, both being mentioned in it, and being originally synonymous terms. But the strict construction, which was at first given to the statute, in a great measure defeated its extent; as it was determined that there were some uses not executed by it. Uses of course, under the name of trusts, have continued distinct from the legal estate. The courts of equity have interfered and supported them.  A trust, then, is a use not executed by the statute of uses. 
    
    In England, by the construction given to the statute, [ * 191 ] a * use cannot be limited upon a use. Hence it followed that, in a deed of bargain and sale to A, for the use of B, the use was not executed by the statute, but was considered a trust.
    The inconveniences resulting from the rigid construction given to the statute of uses in England, have been in a great degree obviated in this commonwealth by the statute of 1783, c. 37, which dispenses with the ceremony of livery of seisin. A deed, therefore, made pursuant to the provisions of that statute, will now operate as a feoffment, so far as to limit a use upon a use.
    The construction contended for on the part of the tenant is open to several objections.
    The legal estate is in one, while another has the use; thereby creating a double property. Suppose Cimings and the other trustees to have died during the life of Hunt, the remainder could never have vested, as there would have been no person in esse to take. Nemo est hares viventis. In that event, the remainder would be contingent, and the inheritance would be in suspension or abeyance ; which is never allowed but in cases of absolute necessity.  The remainder being contingent, no alienation could take place in the lifetime of the ancestor. 
    
    To prevent these inconveniences, the rule in Shelly’s case was adopted — “ When the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance, an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, in such cases, the words his heirs are words of limitation of the estate, and not words of purchase.”
    Another objection is, that we have no court, to which a cestui que trust could resort, to compel a trustee to a specific performance of the trust. It may be said that the cestui que trust might have an action at common law against the trustee. But this would not provide a specific performance of the trust; and of course the intention of the parties could not be effectuated.
    [ * 192 ] * The words “ their discretion,” used in the habendum of the deed, will not aid the tenant in his construction ; as whatever was or would have been a trust at common law is since the statute of uses executed.  Thus a devise to trustees and their heirs, in trust to permit A to take the profits for his life, and afterwards to stand seised to the use of the heirs of A’s body ; held to be an estate tail. '
    The demandant’s construction is, that the deed operates by way of feoffment, by which Hunt takes an estate of inheritance ; or as a release by way of mitter le droit, to pass all Simonds’s right or in terest in the premises to Cumings and others, for the use of Hunt
    
    If it operate as a feoffment, the word heirs is a word of limitation, and not a word of purchase. The statute of uses executes a freehold estate in Hunt; and he takes the remainder at common law. The freehold and the remainder are conveyed by the same deed at the same instant, and are of the same nature. Is not the same estate conveyed by the deed, that would have been conveyed, if Hunt had been enfeoffed for life to his own use, with remainder to his heirs ? In that case, could there have been a doubt, but that Hunt would have taken an estate of inheritance ? If there were any difference in the nature of the particular estate and the remainder, heirs would be a word of purchase. There is no difference in the nature of the two estates. They are both legal estates; one executed by the statute of uses, the other by the common law; both being of the same nature, but differently executed.
    If the deed operate as a release, by way of mitter le droit, to pass Simonds’s right or interest to Cumings and others for the use of Hunt, the word heirs is unnecessary, as no words of limitation are required in a release, that enures by way of mitter le droit. 
      
    
    It may be said by the tenant, that the deed could not operate as a release, because Cumings and others were not seised, so that a use could be raised to Hunt.
    
    *But it may be answered, that when the deed was [ * 193 ] made, Hunt was in the possession of the premises conveyed, claiming an estate of some kind ; that the deed was made for his benefit, and is to be taken most strongly against Simonds, and in favor of Hunt. The consideration expressed in the deed being paid by Cumings and others to Simonds for the use of Hunt, who then had the possession, the tenant, claiming under Simonds, ;s estopped to say that Cumings and the others were not seised.
    Whether, then, the deed shall be considered to operate as a feoffment or a release, Hunt took thereby an estate of inheritance, and the demandant is entitled to judgment according to the verdict.
    
      Richardson.
    
    It is apparent, from a bare perusal of the deed in question, that the motives, which led to the adoption of that particular mode of conveyance, must have been to keep the legal estate out of the control of Josiah Hunt, and within the control and under the direction of the selectmen of Hollis, during Hunt’s life. The language of the habendum, that the selectmen are to hold the premises for the use of Hunt, at their discretion, during his life, is too clear to be misunderstood. This discretion is wholly inconsistent with a vested estate in Hunt.
    
    The demandant’s first position is, that this conveyance is to be construed as a feoffment; that the grant to Cumings and others, selectmen of Hollis, and their successors, gives them a fee ; that the use limited to Hunt for life is executed in him by the statute of uses ; that in the phrase, “ then to his heirs forever,” the word heirs is used, not as designatio persanes, but as a word of limitation; and that therefore Hunt took by the deed a vested estate of inheritance.
    If these positions are true, the conclusion is correct. For it is admitted, as a settled principle of law, that if an estate be granted to a man for life, remainder to his heirs, or to the heirs of his body, this is (according to the words) either a fee simple or fee [ * 194 ] tail executed in such tenant of the * freehold. This rule, however, has exceptions, which it will be important to consider hereafter in the discussion of the present question.
    But this construction attempted by the demandant cannot, it is apprehended, be supported; because there are no words in the instrument, that can create an estate of inheritance in Cumings and others. A grant to a man and his successors gives him an estate for life only.  The case of the chantry priest (Co. Lit. 9, 6,) is exactly in point. Littleton says, the word heirs only makes an estate of inheritance in all feoffments and grants. And Coke, in his commentary on those words, enumerates the exceptions which he says the law makes to the rule. The exceptions he enumerates clearly prove the rule applicable to the case at bar. The reason the law is so precise to prescribe certain words to create an estate of inheritance, is for avoiding uncertainty, the mother of contention and confusion ; and surely this is a good reason. It is believed that there is no modern case contrary to the law, as laid down on this point by Littleton and Coke.
    
    The estate of Cumings and others, then, is only for life. And it may be considered as a general rule, that the seisin of the feoffee, releasee, &c., must be commensurate with the use declared thereupon ; or, in other words, cestui que use cannot have an estate in the use more extensive than the seisin out of which it is raised.  It is then clear that Hunt and his heirs could not take, by way of use, an estate greater than for the life of Cumings, Whiting, and 
      Goss. Of course, the first ground taken for the demandant must be abandoned.
    The demandant’s second position is, that the deed of Simonds is to be construed as a feoffment to Cumings and others, during the life of Hunt, to Hunt’s use ; that this use is executed in Hunt by the statute of uses ; that the remainder passed, by way of feoffment at common law, directly from Simonds to Hunt’s heirs; and that Hunt thus took a vested estate of inheritance.
    *But, admitting these premises to be true, the con- [ * 195 ] elusion does not follow. It was before admitted, as a rule of law, that when an estate is given to one for life, remainder to his heirs, he has a vested estate of inheritance. It now becomes important to state the exceptions to that rule, and the grounds and reasons of those exceptions.
    Those exceptions seem all to turn upon a distinction in the use of the word heirs, laid down in 3 Salk. 292, that the words heirs or issue, when used to denote a single person, or so as to be only designatio persona, are words of purchase only; but when collective, they are words of limitation. One exception is, when the words heirs or issue have words of limitation annexed to them ; in such case they are used only as designatio persona, as where a devise was to W. R. for life, remainder to his heirs, and the heirs female of their bodies. .Here the heirs of W. R. take as purchasers; otherwise the inheritance would vest in W. R., and not in his heirs, which would be clearly contrary to the intent of the testator. Another exception is, where the estate for life is that of a trustee ; and as an example of this exception, suppose Simonds had conveyed by feoffment to Cumings and the others, during the life of Hunt, to the use of Hunt for life, remainder to the heirs of Cumings and the others. In this case, the words; heirs of Cumings,” &c. could not be construed as words of limitation,' but the heirs of Cumings, &c. would take by purchase. The reason is obvious. The words, by which the remainder is conveyed, denote a beneficial estate; it would therefore be absurd to construe them as words only intended to limit another species of estate, which contained no beneficial interest. A third exception is, where the person entitled to the beneficial interest for life has not legal seisin of the freehold. Suppose Simonds to have conveyed by bargain and sale to Cumings and others, during the life of Hunt to Hunt’s use for life, remainder to the heirs of Hunt; this would have been an example of this last exception; for as no use can be limited to arise out of a use, it follows that no use can be limited upon the legal estate of the bargainee. Hunt’s estate, * therefore, must in this [ * 196 ] case be merely that of cestui que trust: then, as the estate in the remainder conveyed to the heirs must be intended to be the legal estate, if any, the word heirs must be construed a designatio personae, and not a limitation of Hunt’s estate. Because it would seem to be absurd to construe words, intended to designate the persons who are to take a legal estate, as a mere limitation of the estate of a cestui que trust.
    
    To apply the principles which seem to govern these exceptions, to the case before the Court:—if the use were executed by the statute in Hunt, his estate was that of a cestui que use, and words limiting his estate must of necessity be limitations of the use ; but, by the position taken by the demandant, the word heirs is used to designate who is to take, not the use, but the direct legal estate; how, then, are the words his heirs to be construed as words of limitations ? Indeed, it seems to make no difference whether the use were executed in Hunt or not, because it was not the in.tent of the statute of uses to alter the mode of construing conveyances, but to join the legal estate and the use together. The only effect of the statute in this case would be to give Hunt the same estate in the land which he had in the use ; and his estate in the use being only for life, the statute of course could not execute in him any greater estate. Had Simonds conveyed to Cumings and others, and their heirs, to the use of Hunt for life, remainder to his heirs, it would seem, in such case, that he would have had an inheritance in the use, and the statute would have executed the use accordingly. But, unless the words his heirs can be construed as limiting Hunt’s estate in the use, it seems very clear, that this case cannot be affected bj the statute of uses.
    The tenant’s position is, that the court may and ought to construe this deed as a feoffment, bargain and sale, or other species of conveyance, as may best fulfil the intention of the parties to it; that it ought to be construed as a bargain and sale, vesting in Cumings and others the legal estate during the life of Hunt, in L * 197 ] trust to permit him, during his life, to take * the profits, and passing the legal estate in the remainder directly from Simonds to Hunt’s heirs as purchasers ; and this construction will give complete effect to the intention of the parties.
    There is a consideration expressed in the deed to be paid in money by Cumings and others. This is sufficient to raise a use to them, which the statute of uses would execute in them. The limitation of the use to Hunt is, it is true, void in law ; but it is held in chancery to be a trust, which in conscience ought to be performed.  It is also true that we have no court of chancery, to compel the perforrnance of such a trust; yet still, if the parties to a deed should deem it more proper and prudent to trust a legal estate to the conscience, honor, and honesty of three men, to dispose of die profits of the same for the use of an individual, whose capacity or habits perhaps render him unfit to have the control of real estate, there seems to be no good reason why such construction should be given to the conveyance, as wholly to defeat their intentions.
    It may perhaps be objected that Hunt’s heirs, being strangers to the consideration, cannot take the remainder by way of bargain and sale. But Cumings and others may well be intended to have paid the consideration, as well on account of Hunt’s heirs, as on their own account, which would be sufficient. 
    
    
      
       1 Rep. 124, a.
      
    
    
      
       1 Mk. Rep. 591.
    
    
      
       1 Black. Rep 136
    
    
      
      
        Co. Lit. 342, a.
      
    
    
      
      
        Ibid.
      
    
    
      
       1 Vent. 233.
    
    
      
       2 Salk. 679.
    
    
      
      C8) Lit. § 467.
    
    
      
      
        Lit. § 1. — Co. Lit. 8, b. 9, a.
      
    
    
      
      
        Saunders on Uses, 1,113. — Dyer, 186, a. — Bacon on Uses, 47. — Cro. Car. 231 Cro. Eliz. 721, Crawley's case.
      
    
    
      
      
        2 Black. Comm. 336.
    
    
      
      
         2 Sound, on oses, 55.-2 Roll. Mr. 784, pi. 6, 7.
    
   The action was continued nisi for advisement, and at the following March term in Suffolk, the opinion of the Court was delivered as follows, by

Parsons, C. J.

(after reciting the substance of the report of the trial, and stating the question reserved.) This cause has been very well argued on each side. The counsel for the tenant contends, that as the selectmen of Hollis were not a corporation to take in succession, and as the estate conveyed to them was for the use of Josiah Hunt, it vested in him by the statute of uses; but as the grantees took only a life estate, a life estate only vested in Hunt.

* It is therefore necessary to determine what estate [ * 198 ] the selectmen of Hollis, the immediate grantees, took under Simonds’s deed. If they took an estate for the use of Josiah Hunt and his heirs, they took only a life estate ; for it is very clear that they are not a corporation. But if they took an estate in trust for Hunt and his heirs, then the legal estate of the trustees shall be commensurate with the equitable estate of the cestui que trust, which in this case is a fee simple.

Having no court to compel the specific performance of a trust, it is a general rule to * consider estates conveyed in trust, as estates conveyed to use, if it be not repugnant to the manifest intent of the grantor. If it be, it is considered as a trust estate, and the trustee is answerable for damages, as on an implied assumpsit to the cestui que trust that he would execute the trust — a remedy certainly very inconvenient, frequently very inadequate, and resorted to from necessity, because no court is competent to compel a specific performance of the trust.

Now, what is the manifest intention of Simonds, in this conveyance to the selectmen ? They are to hold the lands for the use of Josiah Hunt, but at their discretion. It could not therefore be an estate for the use of Hunt; for then the use being immediately executed, Hunt would hold the estate during his life, not subject to any control or discretion of the selectmen. Further, they are to hold for the use of Hunt, and if after his decease any estate should remain, it is to go to his heirs. Simonds therefore contemplated that the trustees were able to sell a part, if not the whole. He therefore could not mean that the legal and equitable interest in the estate should unite in Hunt.

For these reasons we are of opinion, that the selectmen, who were the immediate grantees, took the legal estate in trust for Josiah Hunt and his heirs. Whether they could lawfully convey any part of the estate under this deed by the terms of it, although it was clearly contemplated, is not now before us; as they in fact con- [ * 199 ] veyed no part of the * premises. As the estate of the grantees was in trust, it must be commensurate to the trust, and therefore was an estate in fee simple.

Josiah Hunt had then an equitable fee simple, which he might lawfully devise ; and upon his death, his widow had under his will the same equitable estate, which the judgment creditor and his assigns may lawfully claim against her. And no person can set up the legal estate against the equitable estate, but the trustees, or some persons claiming under them.

But in this case, neither the tenant nor Simonds’s heirs claim under the trustees; as to them, therefore, the equitable estate of Josiah Hunt, his devisee, and her assigns, they having the actual possession, is sufficient to maintain this action. For the actual possession is prima facie evidence of a legal seisin; and a stranger to the trust shall not be permitted to control this evidence, by proving the existence of the trust estate.

Let judgment therefore be entered on the verdict, 
      
       [If the selectmen took in their politic capacity, it would seem, that the words “ successors," in this case, might be as available, as in the case of a dean and chapter, bishop, parson, or vicar. (2 Bart. 11.) But, at any rate, it is quite clear, that if they took any thing, according to the intent of the grantor, they took in trust for Hunt, for and during his life, and for his heirs after his death. What the learned judge means, when he says, that Joseph Hunt had an equitable fee simple, is not very in telligible.—Ed.]
     