Hardy v. Redman's Administrator

delivered the opinion of the Court.

The defendant’s counsel contends, that this is a devise to the executors in trust for the use of' Mrs. Beall during her life, with remainder to-the heirs of the testator, and that the use is vested by the statute of uses ; so that it is, in effect, a devise to her for life, and that the heirs of the testator take the reversion by descent, and do not take a remainder by purchase ; or, at most, that the executors only take an estate during the life of the widow, and that the reversion descended to the heirs at law ; for the words, “ the remainder of my estate to devolve on my heirs at law,” give them no other estate than the law would give them; in which case it is settled, that the heir shall take by descent, and not by purchase. That, where the devise is charged with the payment of a gross sum, it carries a fee ; but where the sum is to be paid out of the annual rents and profits, it is only an estate for life. And that, where lands are subjected to a temporary right of possession in another, subject thereto, the heir takes, by descent.

These principles are correct, but they do not apply to this -case. This is not a devise in trust directly to the use of the widow, nor to suffer her to take the rents and profits, in which case, perhaps, the statute would execute the use; but it is a devise to the executors, charged with the payment of debts and funeral expenses ; and that the proceeds of the estate should be applied to the support of the widow, in such manner as they should think proper, and with power to sell the estate, if the rents and income should not be found sufficient to support the widow and pay the debts.

In the case of Gibson v. Montfort, (1 Vesey, 490, 491,) the testator devised his real and personal estate to trustees, and their executors, administrators, and .assigns, in trust, to and for several uses, to pay several annuities, sums, and legacies,' by and out of the produce of the personal estate; if that should be deficient, then out of the rents, issues, and profits of the real estate. Lord Hardwicke decided that the whole legal estate of inheritance was devised to the trustees, and said — “ It has often been decided that, in a devise to trustees, it is not necessary that the word ‘ heirs ’ should be inserted, to carry the fee, at law; for if the purposes of the trust cannot be satisfied without having a fee, courts of law will so construe it, as in Shaw, and *638Wright, and several other cases, (1 Eq. Cas. Ab. 176.) Here are purposes to be answered, which, by possibility, (and that is sufficient,) cannot be answered without the trustee’s having a fee, namely, the payment of several'annuities, and large pecuniary legacies. If the personal estate is" deficient, which will probably be the ease, then how is the rest to be raised? Barely by the annual rents and profits. It must be so if it is a chattel interest, for then it cannot be taken out of the estate fyy anticipation ; but that cannot be here, for if these pecuniary legacies be not paid out of the personal, the real estate must be sold to satisfy them. For several of them are to be paid within a year after the testator’s death, and cannot, therefore, be paid by annual perception. This, then, is a purpose which it is impossible to serve, unless the trustees have the inheritance, for if they are to sell a fee they must have a fee; nor will the court split the devise.”

That case seems to be decisive of the present; for here the executors have not merely an implied but an express power given to them, by the will, to sell the re'al estate, for the payment of the debts and the support of the widow.

We, therefore, are of opinion that the plaintiff, ■ William Hardy, has an estate in fee in the reversion of the lot, in trust for the heirs at law of Samuel Beall, or for such persons as would, but for their alienage, be his heirs at law; and, consequently, that the plaintiff is entitled to receive the whole rents up to the time of the commencement of this.suit, or to the last pay-day preceding such commencement. (See Cruise’s Dig. tit. Devise, c. 10, § 29, 30, 31, 32, 36 ; and c. 11, § 49 - 73.)