Edmondson and wife vs. Dyson.

centuries applied to their elucidation, with no very decidedly satisfactory result. Much has been done to make the doctrine of descents generally, and of remainders in particular, easy and intelligible; to simplify them, however, is an impossibility, they must, in the very nature of things, be always intricate and involved. The application to these subjects of recognised rules even is difficult. Generalization and analysis, so potent in relief against complexity as to these doctrines, have, to a great extent, failed in their power of elucidation. What learning and labour could do, has unquestionably been done, by such men as Fearne, Hargrave, Preston, Butler, Smith and Kent, and yet the doctrine of remainders, and its cognate titles, is still, to the ordinary professional inquirer, very much a maze, 66 a mighty maze, and all without a plan." Happy is that tribunal, charged with its administration, which can bring a case made before it to the test of some one or more clear and tangible rules. Whilst I undertake no review of many leading doctrines springing directly or indirectly out of this cause, and mooted with great ability by counsel at this bar, feeling neither willingness nor ability to glean in fields trod by the master reapers of four centuries, I congratulate myself, that when stripped of adjunct difficulties, the inquiry here may be so narrowed as to become comparatively easy. The case may be brought to a test which is direct at least.

The first thing we propose to do is, to dispose of the power [1.] of appointment in Gainham L. Rakestraw, under this will. The testatrix directed the trustee to convey the property to whomsoever he, Gainham L. might by will appoint. He died intestate, and of course without having exercised the power. The power therefore falls to the ground, or rather it is as though it had never been, or as a void power. He had the ability, during life, to defeat the remainder to his heirs at law, by appointing the fee to be conveyed to others. Not having done so, the property takes just that direction which the testatrix, anticipating such a contingency, willed it to take. By the provisions then, of the will itself, upon the death of Gainham L. Rakestraw intestate, the power of appointment became a nullity, for the will further directs the trustee, upon his death intestate, to convey the property absolutely to his heirs at law.

If, according to the argument of counsel for the defendant in error, Gainham L. Rakestraw took a fee in this property under the will, the power could not affect that fee; for the rule is, that a de

Edmondson and wife vs. Dyson.

vise of an estate generally, or indefinitely, with a power of disposition over it, carries a fee. Upon their argument, at all events he gets a fee. But, if the true construction of this will is that put upon it by the plaintiffs' counsel, to wit, that Rakestraw took only a life estate, and that the heirs at law took the fee simple in remainder as purchasers, then the power could not affect the estate of either Rakestraw or the heirs; because the rule of law again is, when an estate is given for life only, the devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will, be annexed. 4 Kent 318. As we believe that Rakestraw acquired a life estate and no more, under his wife's will, we think the last rule stated controls this power, if no other view taken was sufficient. We, therefore, abstract it for the future wholly from the will, except in so far as the clause in relation to it may be used as an indicium of intention.

Without the clause abstracted, how does this will read? As follows, to wit:

“Item 2. I will and bequeath the whole of my estate, of every nature, both real and personal, which I may own, possess, or be entitled to at my death, to my friend John H. Dyson, in trust, for the sole and exclusive use of my beloved husband, Gainham L. Rakestraw, during his natural life. And it is further my will and desire, that if the said Gainham L. Rakestraw should die intestate, that my said trustee shall convey all the property herein named to the heir or heirs at law of the said Gainham L. absolutely. "Item 3. It is further my will and desire, that my said friend and trustee, John H. Dyson, shall have the power, and I hereby authorize him, by and with the consent of my said husband, Gainham L. Rakestraw, to sell and convey all or any portion of the property herein conveyed to him, 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 the said Gainham L. thereto."

.

This is the will, with a slight verbal modification of the second item, to accommodate it to the withdrawal of the appointment clause.

[2.] In the construction of wills, the great cardinal rule is, that the intention of the testator shall govern, provided it be not unlawful, or inconsistent with the rules of law. And the intention is to be collected from the whole will. The control which the rules of law exert over the intention, is understood to apply to the nature

Edmondson and wife vs. Dyson.

of the estate, and not alone to the construction of words. The intention cannot prevail against the rule which prohibits the entailing estates, for example. If it could prevail against the rules of law, then every man's will would be a law, and the metes and bounds of property would be subject to perpetual disturbances. 4 Kent, 534, 535; 3 Peters, 346; 2 Atkins R. 580; 2 Dallas, 244; 10 Gill. & Johns. 27; 1 Fearne Con. Rem. 185, 186, 187. On the other hand, the right of free disposition of property is deemed one of the most sacred appertaining to the citizen; one which the courts will guard with ceaseless vigilance.

To this end, technical rules of law are not to be applied to wills with iron rigidity, wholly irrespective of the intention of the testator. "The cases (says Mr. Fearne,) as well as principles, tell us the controlling rule of construction in wills, is, the intention clearly expressed or implied; to contradict this would indeed be a mockery, a denial of the import of the word will." Again, this singularly able writer in commenting upon the application of the rule in Shelley's case to devises, remarks, "the application of the rule is confessedly subjected to the result of an inquiry to be decided by the ordinary rules for the interpretation of wills; this is in fact a resort in the first instance to the discoverable intent of the testator, which is the leading principle of such interpretation." 1 Fearne Con, Rem. 185, 190.

Anterior then to the application of any rule of law to this will; anterior to the inquiry, whether according to the will and the law the complainants take as purchasers or by inheritance; anterior to the inquiry whether the intention of the testatrix in the will be fore us contravenes any provision or rule of law, our business is to collect and fix that intention.

The contingency, to wit, of Gainham L. Rakestraw's dying intestate, which was provided for by the testatrix, having happened, what is the nature of the estate conveyed to him, and what to the persons in remainder, or what was the intention of the testatrix touching the nature of these estates? We think that she intended to tie up the legal estate in the hands of her trustee; first, for the purpose of protecting the use of the estate to her husband during his natural life, and second for the purpose of conveying the whole estate absolutely to his heirs at law at his death; that the trust should then cease, and the heirs at law of Rakestraw should become a new root of inheritance from which the property, if not by them aliened or bequeathed, should descend in regular course

Edmondson and wife vs. Dyson.

of administration. The object of her bounty was primarily and mainly her husband; her intention was to secure the enjoyment of the property to him during his life, against his creditors, and even against himself; she did not intend that he should have the power of aliening it. Such motives are common and natural. If she intended to vest a fee in him, why deposit the legal estate in a trustee? why not devise it to him at once her benevolence to him is manifest in the power she gave him to dispose of it by will, and only by will; her affectionate regard for him is expressed in the provision she makes, not for her own heirs or kindred, but for his heirs. The power of appointment does not, as we have seen, enlarge his life estate into a fee-this is the judgment of the law-it was not her will that it should. At his death intestate, the legal estate is still outstanding in the hands of the trustee; she intended it so to be, as is inferable from the fact that she does not devise the estate directly to his heirs at law but instructs the trustees to convey it to them. The limitations are perfect it is true; there is no doubt about the nature of the estate bequeathed to his heirs at law; yet something is necessary for the trustee to do, to wit, convey, before he is absolved of the trust and they can be let in to the complete enjoyment of it. Before they are admitted to the full fruition of her bounty, either the trustee must convey, or a decree in chancery must devest the legal estate. A contrary construction cannot be derived from the power with which she clothes the trustee to sell the property with his consent, and re-invest it for his use. His consent restrains and limits the power of the trustee to sell, but does not constrain him to sell at his requirement; to sell or not, Rakestraw's consent being had, is still discretionary with him; this discretion was necessary to the perfect enjoyment of the estate during his life, and to this end it was doubtless given. If there had been a sale and investment, that would not have altered the nature of the estate in the remaindermen; that would not have enlarged his estate; the limitations over would still have attached upon any and all changes in the character of the property which might have occurred. We think that the testatrix did not intend to control the descent of the property further than to the heirs of her husband; she could not have contemplated a perpetuity, for she instructs her trustee to convey absolutely to a class of persons, which from legal necessity must be in esse at the time of her husband's death-persons ascertained by the law. And when the property is conveyed, the trust is execu

Edmondson and wife vs. Dyson.

ted, the limitations are perfected, and the estate is in their hands liable to alienation by deed, to testamentary disposition, and to diffusion and descent in ordinary course of inheritance. Such we think was the intention of the testatrix, as derived from the face of the will. Does this intention conflict with any known rule of law of force in this State? Can the heirs at law take this estate as purchasers, according to this intention under the laws of Georgia? To this inquiry we now address ourselves.

There is no statute law in this State which will prevent the intention of Mrs. Rakestraw from going into effect. A good deal was said in the argument about the application to this will, of the Statute of Uses. We do not think it applies. The Statute 27 Henry VIII, see Schley Dig. 163, commonly called the Statute of Uses, transferred the uses into possession, by turning the interest of the cestui que use into a legal estate, and annihilating the intermediate estate of the fcoffee. So that if a feoffment was made to A and his heirs, to the use of B and his heirs, B, the cestui que use, became seised of the legal estate by force of the statute. The legal estate, so soon as it passed to A, was immediately drawn out of him and transferred to B, and the use and the land became convertible terms. 4 Kent, 293, 294. It is to be remarked, that under the constructions given to this statute in England, the cestui que use takes the legal estate, according to the quality, manner and form, which he had in the use. If in this case the bequest had been to John H. Dyson and his heirs, in trust for the use of Rakestraw and his heirs, the statute would unite in him the possession or use, and the legal estate. There is, however, in this will a future use provided, and in such cases the law of executory devises may obtain. In other words, if this be an executory trust, equity will, notwithstanding the statute, carry into effect the intention of the testatrix.

It is contended with much learning and eloquence, that this will contravenes the rule of the British common law, known as the rule in Shelley's Case. Or, to state the proposition most favourably to the defendant in error, it is claimed that according to that rule, Rakestraw under this will, took a fee in the real estate, and an absolute property in the personalty. Or again, if the intention in this case was that the heirs at law should take the ultimate fee as purchas ers, that intention is against the law as settled in Shelley's case, and cannot be carried into effect. The rule of law referred to is recog