Emery v. Van Syckel. Phillis, is also of the same character, and is only a charge upon the real estate. The legacy to George Servis Emery, is not directed to be paid by the executors, but it is made a charge also upon the real estate. It is given upon the contingency of his arriving at the age of twenty-one years, and and if he should die before, and without lawful issue, it becomes a part of the residue of the estate. It does not appear to me to be necessary that George should collect this legacy through the executors; but if so, it is only a charge of the amount to be made under the decree of chancery, out of the real estate. The executors being trustees to that end alone, and of the fund when raised, to pay it to George. The direction in the will for "the executors to have the farm and buildings kept in good repair, and to see that no unnecessary waste or destruction of timber be committed on my said farm, or wood lot adjoining, and to carry this my last will and testament into effect, according to the true intent and meaning thereof," could not, by any fair or necessary implication, vest in the executors any legal estate as trustees. When the trust estate commences upon dispossession, they then would have a legal estate for the benefit of the wife during the continuance of her interest, but before that occurs, this clause merely gives them a power to make those in possession perform that duty. A tenant for life would be required by law to keep the farm and buildings in repair against permissive waste, and he could also be prevented from committing any unnecessary waste or destruction of timber. These were the objects intended, it appears to me, to be secured by that clause, and a power is given to the executors, as such, to see that they are carried out, and, if necessary, to compel it. No direction is given as to whether wood and timber shall be cut for that end, or any part of the land shall be sold, or whether the proceeds of the land shall bear the burden. This clause gives the executors a power which would enable them, for the benefit of those in remainder, to obtain the aid of a court to preserve the inheritance for them. Perhaps the executors would be justified Emery v. Van Syckel. without the aid of a court, in having wood or timber cut to repair the buildings or fences. But whether that is so or not, it is not necessary to the full exercise of the power conferred in that clause, that any legal title should be in the executors. Such a view would be inconsistent with what appears to me to be the design of the testator, to secure the legal rights of the wife, and, consequently, those of the husband, undisturbed, until the happening of the contingency, which then creates a legal title in them, in trust for the wife. The language of the fifth clause, which directs the executors, or the survivor, when that contingency happens, "to take charge of her estate, and rent out the land," seems to be inconsistent with any legal title being in them as trustees before. The trust, as a legal estate in the executors, lasts during the life of the wife, from the dispossession, and at her death ends; and if the husband survives, and the youngest child has not attained the age of twenty-one years, he takes "the use, occupation, and profits" till that occurs, giving him a legal estate during that period. The only question remaining is, as to the relief prayed in the bill. accrue. By the deed from the sheriff, the defendant, Van Syckel, acquired all the right, title, interest, and estate of Nicholas Emery, in and to the lands devised. Technically, the deed would carry with it the right in the purchaser, to the immediate possession, but the very instant such possession was transferred, the right of the executors as trustees, would The act of dispossession, and the commencement of the trust estate, would be instantaneous. At law, the result would be this: the purchaser would recover possession, and the trustees would be compelled to submit to the delay of a suit in ejectment, to recover the possession to them as trustees. This would be compelling the interest of the wife to bear an unnecessary burden in costs, and also to be prejudiced by the delays and incidents of a suit at law, which should be avoided, unless some substantial right of the purchaser was defeated by preventing it. Emery v. Van Syckel. It may be said that the purchaser should be allowed to recover his judgment, in order for him to have a remedy for mesne profits from the date of his deed; but if he was permitted to recover those, it would be upon the idea that he was entitled to the possession from the date of the deed, and that the husband was a trespasser upon his rights of possession. This claim is inconsistent with any rights of the wife in the enjoyment of the estate during that time, and she would be virtually dispossessed, for whenever the rights of the husband cannot be exercised, without a dispossession of the wife, then the trust would in equity begin. If the purchaser had got into possession of the land at the date of his deed, he would have been decreed to account for the profits for her benefit. He could not get any benefit under his deed, either in the actual possession, or in the mesne profits after the date of the deed, that would not be founded upon a right to the exclusive possession of the land, bath as against the husband and the wife. Whenever the estate of the husband was conveyed away by the sheriff, he had no further right to the possession as husband, and it was his duty instantly, as a trustee, to look out for the interests of the wife. Without the aid of a court of equity, he may have gone through the circuity of delivering possession, as husband, to the purchaser, and then, as trustee, recovering it back. Any holding on of possession after the deed, if not as trustee, was as a wrong doer, and without any right. The wife's interest, if not protected in the trust, would be merged in the possession of the husband, and, as a wrong doer, he would be liable to respond for the damages to the purchaser. This could not be, except upon the idea of a right of possession in the purchaser, and a dispossession of the husband and wife, as effectually as if the purchaser was in actual possession under the deed. Nicholas Emery, being both husband and executor, and a circuity of legal proceeding having only a tendency to injure and prejudice the separate estate of the wife, and the object being only to get the possession into the trustees at last, and VOL. II. 3 с Emery v. Van Syckel. one being now in possession, and the only one who took out letters testamentary, equity will hold that the dispossession occurred at the delivery of the deed to Van Syckel, upon the principle, that that will be considered as done that ought to have been done, for it was the duty of Emery then to deliver the possession according to the deed; and upon the same principle, it will hold that the possession, of which the husband ought then to have been deprived, was delivered over by Van Syckel to the trustees, for, when he received. possession, it was his instant duty to deliver it over to the trustees. Under the very peculiar circumstances of this case, Emery will be considered in possession as trustee from the delivery of the deed. The contingency then, within the contemplation of the will, happened, and the trust estate for the sole and separate use of the wife began. Henceforward, during her life, she has such an estate. It being the duty of the Court of Chancery to protect it, the complainant is entitled to have the suit in ejectment enjoined, and the relief as prayed for in the bill. The decree should be reversed. The decree was reversed by the following vote: For reversal-BEASLEY, Č. J., BEDLE, DEPUE, CLEMENT, FORT, KENNEDY, VREDENBURGH, WALES, WOOD. 9. For affirmance--NONE, INDEX. ACCIDENT. Equity will interfere to restore ACCOUNT. See EXECUTOR, 3, 4, 5. ACQUIESCENCE. See CONTRACT, 11. ADMINISTRATION. 425 poses of due administration in the 5. 1. In strictness, the grant of admin- An administrator, by virtue of a ADMINISTRATOR. 1. The rule is that if an executor, ad- |