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Trippe & Slade and others vs. Lowe's adm'r. and others. above stated, courts of equity may be said to possess a general, and perhaps a universal concurrent jurisdiction with courts of law, in cases of fraud cognisable in the latter; and exclusive jurisdiction in cases of fraud beyond the reach of the courts of law.” In Bacon vs. Bronson, Chancellor Kent, after quoting the remarks of Lord Eldon, in Evans rs. Bicknell, on the subject of the concurrent jurisdiction of the two courts, says: “There is no dispute about that doctrine. It is a principle of universal law. Fraud and damage coupled together, will entitle the injured party to relief in any court of justice.”

[2.] The courts of law and equity then having concurrent jurisdiction in cases of fraud, and the court of equity having first acquired jurisdiction of the cause now before us, was in our judgment entitled to retain it, notwithstanding the complainants might have obtained judgments against the defendant as erecutor de son tort, in a court of law. Indeed we are of the opinion that courts of equity are better adapted to grant the relief sought by the complainants in the case made, than a court of law, exercising as they do a more comprehensive jurisdiction for the protection of the rights of all the parties who are interested in the subject matter of litigation. Maintaining the jurisdiction of the court of equity in this case will prevent another suit, and it is the policy of the law and should be the policy of the administrators of it, to avoid a multiplicity of suits, whenever it can be done without violating established principles. “When a court of law and a court of equity have concurrent jurisdiction of the matter in dispute, the court which takes jurisdiction settles the matter conclusively.” Thompson vs. Hill, 3 Yerger's R. 167; Flournoy's Ex'rs. vs. Halcomb, 2 Munford's R. 35.

From the view we have taken of this case, we are of the opinion that the Court below erred in its judgment in sustaining the demurrer and dismissing the complainants' bill. Let the judgment of the Court below be reversed and the cause reinstated.

Edmondson and wife os. Dyson.

No. 47.-Wm. L. EDMONDSON and wife, plaintiffs in error vs. JOHN

H. Dyson, defendant in error.

[1.) If an estate is bequeathed to A in trust for B, during his life, with power of ap

pointment in B of the fer by will, and in the event of B dying intestate, remainder in fee to the heirs at law of B; held that B having died without exercising the power, it is void, and the limitations over take effect as though there was no such power in the

will. (2.) The rule in Shelley's case applies only where the estate to the ancestor and to the

heirs is of the same kind; it applies to legal estates and to trusts executed, bnt not to trusts executory where it is the intention of the testator that it shall not apply; it applies to personal as well as real property. Where the testator leaves some

thing to be done by the trustee, as to convey, it is an executory trust. (3.) When property is bequeathed to A in trust for the use of B, during his natural

life, with instructions to the trustee to convey to whomsoever he shall by will appoint; and if he dies intestate, then to convey the property to the heirs at law of B absolutely, and B dies intestate; held that this is an executory trust, to which the rule in Shelley's case does not apply; and that the heirs at law of B take as pur. chasers, and not as heirs in course of administration.

This was a bill in equity brought by the plaintiffs in error as complainants against the defendant in Wilkes Superior Court. Judge SAYRE presiding. At February Term, 1847, the defendant demurred to the bill, and his demurrer was sustained.

The case made by the bill, and the grounds of error in the decision of the Court below sustaining the demurrer, are set forth in the opinion delivered by the Supreme Court, to which the reader is referred.

WM. DOUGHERTY and Thos. R. R. COBB, for the plaintiffs.

FRANCIS H. Cone and Robert Toombs, for the defendant.

Mr. Cobb for plaintiffs, urged and relied on the following points and authorities :

First. As to the personalty.

The rule in Shelley's case applies only to realty. Hargrave's Law Tracts, 552.

If it did apply to personalty, the Statute of Uses does not; and the trust as to the personalty is necessarily executory. Schley Dig. 163.

If the rule in Shelley's case does not apply, then the remainder

Edmondson and wife os. Dyson.

over in the personalty is not too remote, and the heirs take as purchasers. 2 Kent Com. 285; 5 John. Ch. R. 334; 1 Bay R. 87; 6 Munf. R. 455, 174; 6 Peters R. 78; 3 Bibb R. 39; 1 Call R. 338 ; 3 Ib. 50; Gilmer R. 194; Hargrare Law Tracts, 504, 505; 17 Sergt. f. Raule R. 293; 3 Des. R. 258; 4 15. 330; 1 Bailey Eq. R. 48; 2 Bro. C. C. 570; Ambler R. 562.

The case of Horne vs. Lyette, 4 Har. $ John. R. 431, is not law. The decision is not of the Court of Appeals, and is virtually overruled in Dashiell vs. Dashiell, 2 Har. 8: Gill R. 127.

Second. As to the realty.

Does a use created will under the Statute 32 Hen. VIII. become executed by the Statute 27 Hen. VIII. passed five years previous ? 15 Petersdorj' Abr. 171, note; Schley Dig. 189, note, 256.

The trust in Dyson to convey to the remaindermen is purely erecutory, and the rule in Shelley's case cannot apply. Powell on Devises, 285, 286 ; 2 Jarman on Wills, 253, et. seq.; Hill on Trustees, 333; 6 Cruise Dig. 337, 344; Bacon Abr. 161, 174, 175; 1 Bro. C.C. 75; 2 Saund. 11, note 17; 7 Term R. 652; 1 l'es. R. 142; 2 Term R. 444; 7 Ves. R. 201, 322; 9 1b, 524, 525; Amb. R. 93; 4 Taunt. R. 772; 4 Adol. 8. Ellis, 582, (31 Eng. C. L.); 1 Barnw. & Cres. 336, (8 Eng. C. L.); 1 McCord Ch. R. 239, 240; 2 Barn. 8. Adol. R. 564, (22 Eng. C. L.); 18 Ves. R. 395; 11 East. R. 458.

Messrs. Cone & Toombs for defendant, made the following points:

First. The legal estate in the property devised by the will of Mrs. Rakestraw, to the defendant in error as trustee for Gainham L. Rakestraw, vested in said Rakestraw. 2 Jar. on Wills, 197; 11 East. R. 396; 1 Bro. Ch. C. 64; 1 Burrows R. 228; 2 Doul. g. Ryl. R. 36; 6 Taunton R. 312; 9 Adol. $ Ellis R. 880; 1 Bro. Ch. C. 67; Sugden on Vend, and Pur. 311, 312, 314, 319; 1 East. R. 36; 12 16. 445; 4 Taunt. R. 472; 1 Eq. Cases Abr. 384.

Second. The said devises and bequests fall within the rule in Shelley’s case, and vest a fee simple in the real estate, and an absolute property in the personal estate in Gainham L. Rakestraw. 2 Jar.on Wills, 290; 4 Kent's Com. 206; Fearne on Con. Rem. 25; Preston on Estates, 311; 1 Kelly's R. 97.

Third. The rule in Shelley's case will attach, notwithstanding the interposition of a power or other estate between the estate for life and the limitation to the heirs. 2 Stra. R. 1125; Doug. R. 337;

Edmondson and wife os. Dyson.

Ambler R. 344; 5 Barn. f. Ald. R. 510; 2 Levinz R. 58; 1 Ventris R. 225; 3 Pr. Williams R. 471; 5 Durnford f East. R. 299; 3 East. R. 548; 19 Ves. R. 170; 8 Vin. Abr. 262.

Fourth. Where a power is interposed between the estate for life and the limitation to the heirs, and such power is not executed, the rule in Shelley's case applies. Sugden on Powers, 148; 1 Ves. R. 174; Fearne, 290, 299; 4 Term R. 39; 4 Kent's Com. 318; 7 Term R. 478; 5 Ves. 478; 2 Bro. Ch. C. 588; 4 Ves. R. 636, 637, 771; 7 16.583; 10 16. 265; 1 Ball & Beatty R. 53.

Fifth. Equitable estates are subject to the rule in Shelley's case in the same manner as legal estates. 2 Jar.on Wills, 253; 2 Vernon R. 670; 1 Pr. Wms. R. 142; 1 Jacob f. Walker R. 559; 1 Bro. Ch. C. 206; 1 Pr. Wms. R. 35, 108 ; 26 Wend. R. 9.

Sixth. Where personal estate is bequeathed to a person for life with remainder to his heirs, either general or special, the ancestor takes the whole estate, and the remainders are void. 3 Merivale R. 176; 1 Pr. Wms. R. 142, 290; 1 Ves. Sr. R. 194; 1 Term R. 596 ; 19 Ves. R. 78; 3 Pr. Wms. R. 32; 2 Brown's Ch. C. 578; 1 Ball & Beatty R. 1; 2 Vernon R. 325; 4 Harr. & John. R. 431; 4 Kent's Com. 221, 228; Jeremy's Eq. 163.

Seventh. The trust to the defendant in error is not executory, but executed. 2 Jar. on Wills 253; 2 Story's Eq. 315, 316; 1 Fonb. Eq. c. 6, see. 8, note ; Fearne 90; Pr. Wms. 32; 2 Thomas' Coke, 699; Atherly on Marriage Settlements, 93, 105; Jacob & Walker R. 559, 571; 7 Ves. R. 201; 1 Speers Eq. R. 356; 2 Blackstone Com. 268; Hill on Trustees, 328.

Eighth. Where property is conveyed in trust for a person having a legal capacity to dispose of property, such person becomes the absolute owner of the property. 2 Russ. & Mylne R. 197,210; 18 Ves. R. 429; 1 Jacob R. 603; 4 Simons R. 181; 2 Merivale R. 482; 1 Deo. & Bat. Eq. R. 480.

Ninth. G. L. Rakestraw by the last clause of the will of his wife, took an absolute estate in the property, under the general power to dispose of it for his own benefit by deed.

By the Court - NISBET, J. delivering the opinion.

The complainants, William L. Edmondson and wife, filed their bill in the Court below, setting forth, among other things, the following facts :

Mrs. Ann S. Rakestraw, the first wife of Gainham L. Rakestraw,

Edmondson and wife os. Dyson.

by her last will and testament, devised and bequeathed to the defendant, John H. Dyson, the whole of her estate, both real and personal, in trust, for the sole and exclusive use of her husband, Gainham L. Rakestraw, during his natural life; and directed that, at his death the trustee should convey the property so bequeathed in trust, to such person absolutely as the said Gainham L. should by will appoint; and if the said Gainham L. should die intestate, then she directed the trustee to convey the same to the heir or heirs at law of said Gainham L. absolutely. By the next clause in the will the testatrix directs and authorizes the trustee, by and with the consent of her husband, said Gainham L. to sell and convey all or any portion of said property, at such time and on such terms as he may think best, and also to invest the proceeds thereof in such manner as he may think most to the interest of the said Gainham L., he first having the consent of him (said Gainham L.) thereto. Gainham L. survived the testatrix many years, and died intestate, leaving a widow (having married the second time) and one child, who intermarried with the complainant Edmondson. William L. Edmond. son and wife claim one-half the property thus bequeathed, as heirs at law of Gainham L. Rakestraw and as devisees and legatees under Mrs: Rakestraw's will. They claim as purchasers, and pray that the one-half of the estate be conveyed to them by the trustee. To this bill the defendant demurred, contending that Gainham L. Rakestraw took a fee in the realty, and an absolute property in the personalty, under the will of Mrs. Rakestraw, and that the com, plainants are not entitled as purchasers, but only as heirs in course of administration. The Court below determined in favour of the demurrer, ruling that the complainants could not take as purchasers under Mrs. Rakestraw's will, but were entitled only to their distributive share as heirs, in regular course of administration. To the decision of Judge Sayre the complainants excepted, and thus we have the question made before this Court. The questions grow out of the will of Mrs. Rakestraw; they involve the application or not to that instrument of the celebrated rule of property, known to the profession as the rule in Shelley's Case, and the intricate and greatly vexed inquiry, what is an executory in contradistinction to an executed trust?

These inquiries are among, if not the most abstruse, complicated, and least understood, of all that belong to a science abounding in subtle distinctions. The most brilliant genius, the most profound learning, and the most patient and continuous labour, have been for

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