Opinion,

The controlling question is, whether upon the facts recited in the case stated, Rollin Wilcox died seized in fee of the land in controversy. If he did, the title thereto passed by his will in 1865 to his three sons, defendants in this ease, and judgment was rightly entered in their favor. On the other hand, if the declaration of trust embodied in the agreement of April 27, 1861, between Rollin Wilcox and his father, gave the former merely an equitable life estate on condition, he had no interest in the land on which the will could operate, and hence, upon his decease, the title vested in possession in his four children as tenants in common, and the plaintiff, representing one of them, was entitled to judgment for the undivided one fourth of the land.

As expressed in the agreement referred to, the consideration for the declaration of trust was the following covenants of Rollin Wilcox, to be kept and performed by himself, “ his heirs, executors, and administrators,” Adz.: “ the said Rollin Wilcox covenants and agrees that the said Sheffield Wilcox, *447Ms father, may reside with Mm at the mansion house upon the homestead aforesaid, so long as he shall live, and to provide him with all needful food and clothing according to his usual and customary requirements, and also with medicine and medical attendance, with all needful care in sickness and old age; or, if the said Sheffield Wilcox shall choose to live at the farm-house on the homestead farm and near to the mansion house, that he may do so, and shall be there , supported, together with one other person, his wife or housekeeper, so long as he shall live; that he shall have a suitable garden-spot together with four acres of land to work on the farm where he shall choose; he shall have two cows provided and kept for Ms use, and also the use of a horse when he shall desire it for his own use; also two beds and bedding if he shall require it. If the said Sheffield Wilcox shall choose to live separate from the family of said Rollin and in the farm-house aforesaid, then the support wMch he and said one other person shall receive, shall be understood to mean such support and maintenance as may be needful beyond what shall be yielded by the use of the cows, garden-spot, and four acres of ground. And the said Rollin Wilcox further agrees to pay, satisfy, and discharge all liens now against said property, and to keep the said Sheffield indemnified against the same and the property from being sold thereon.”

The trust referred to' is, that the land in question, then owned in fee by Sheffield Wilcox and known as his homestead, “ shall be and the same is hereby declared to be held in trust for said Rollin Wilcox during his life, and for his heirs after his decease, upon the said Rollin Wilcox complying with and fulfilling the ” covenants above quoted. This is not the only provision, as we shall presently see, in regard to the heirs of the life tenant. So far, however, as it relates to the latter, the declaration above quoted creates a trust on condition that the cestui que trust for life, “ his heirs, executors, and administrators,” keep and perform said covenants: 2 Minor’s Inst,, 227, 229. The word “ upon ” is evidently the equivalent of “ on condition that,” etc. The legal title was held by the donor, not solely for the benefit of those in whose favor the trust was declared, but also for his own benefit and protection. If the covenants of the equitable life tenant were not kept, *448the donor had a right of re-entry for condition broken, and hence the trust was not and could not be executed during the life of the former, without depriving the latter of his right of dominion over his property. The declaration of trust is the same in effect as if Sheffield Wilcox had conveyed the land to a third party as trustee upon the same trusts and conditions. If for no other reason, such a trust will be upheld for the benefit and protection of the donor. A trust is never executed by the statute when its preservation is necessary, either for the protection of a feme covert, spendthrift child, or to support a contingent remainder, or to serve some other useful and lawful purpose: Husband’s Trusts, §§ 281, 284, etc.; Rife v. Geyer, 59 Pa. 393, 396; Dodson v. Ball, 60 Pa. 492, 496. In Rife v. Geyer, supra, it is said: “ Whenever it is necessary for the accomplishment of any object of the creator of the trust, that the legal estate should remain in the trustee, then the trust is a special active one. The true test is whether a court of equity in Pennsylvania would decree a conveyance of the legal title.....Whenever the entire beneficial interest is in the cestui que trust without restriction as to the enjoyment of it, there .is no reason why it should not be considered as actually executed.”

Applying the test above stated to the facts of this case, it is very clear that no chancellor would have compelled Sheffield Wilcox to convey the land in question to his son Rollin and thus deprive him of the benefit of the legal title which he retained, in part at least, for his own protection.

In addition to the declaration of trust above quoted, the agreement concludes with the following provision, predicated of the fact that Rollin might and probably would survive his father, viz.: “ At the decease of said Sheffield, the said Rollin may continue to occupy and enjoy said property during his natural life.” It happened, however, that Rollin pre-deceased his father. The next and last provision in the agreement is, that at Rollin’s death the land “ shall go and be held by the heirs of said Rollin Wilcox and their assigns forever, in the same manner as if the title had now passed subject to a lien for the performance of the covenants hereinbefore contained.” This, to some extent, qualifies the general declaration of trust first above quoted, and in effect gives a vested remainder in *449fee to the heirs of Rollin, enjoyable in possession immediately upon his death, subject only to a lien or charge on the land to secure full performance of the covenants.

As we have seen, the interest of Rollin Wilcox was an equitable life estate on condition. The trust as to him was special, not executed nor capable of being executed during his lifetime without the consent of his father; while the remainder to his heirs was executed, and therefore in effect, if not in form, a legal estate. The quality of the estate for life being different from that of the remainder, the two did not coalesce and, under the rule in Shelley’s Case, constitute an estate-tail. It is well settled that the interest limited to the ancestor, and to his heirs, must be of the same quality; that is, both must be legal, or both equitable: 2 Minor’s Inst., 342; Husband’s Trusts, § 284; Steacy v. Rice, 27 Pa. 75, 81; Bacon’s App., 57 Pa. 504, 514. If the trust as to both had been executed, as the learned judge of the Common Pleas held it was, his conclusion would have been correct; but, in that respect, we think he was mistaken.

Judgment reversed; and judgment is now entered on the case stated, in favor of the plaintiff for the undivided one fourth of the land with six cents damages and costs.