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.