#### *Executors of James S. Hopkins*vs. *Mary Mazyck and others.*

Testator, having a power of appointment under his father’s will, devised lands to his’sons, respectively, during their lives, with remainder to such children as they might leave at their deaths 5 and with cross remainders among the sons, “ in case of the death of any of them under twenty-one and unmarried.” 33y a residuary clause, he devised *"*the rest, residuo and remainder of my estate, whatsoever and wheresoever, including any estate not hereinbefore particularly devised, which I may have derived under the will of my father, unto my said sons and their heirs *foreverHeldy*that the residuary clause carried the ultimate feo, or reversion, in the lands, to the sons.

A plaintiff, claiming an interest under a trust deed, must set out the deed in his bill, and make tho .trustee a party.

The Court will not decree upon the rights of a deceased person, until his executor or administrator is made a party, even although the person entitled to the'administration may bo before the Court.

*Before*Johnston, Ch., *at*Charleston, *January,*1831.

Johnston, Ch. Margaret M. Mazyck, in contemplation of a marriage with James S. Hopkins, executed a marriage settlement, dated the 24th of February, 1824, conveying the whole of her estate, real and personal, as set forth in a schedule thereunto annexed, to Samuel Wilson and Henry O’Hara, in trust, that if the said James S. Hopkins should survive her, and she should have no children living at her death, the whole of said estate, real and personal, should become the absolute property of the said James S. Hopkins forever. The marriage took place, and she died without issue, leaving the said James S. Hopkins surviving. He subsequently died, leaving a will, and the plaintiffs, Carew and Haig, executors, who proved the will and undertook its execution. Samuel Wilson, one of the trustees in the marriage settlement, has died, and Henry O’Hara, the other, being called on by the said executors of James S. Hopkins, to convey and to deliver to them the property specified in the deed of marriage settlement, replied that he had no such property, but that it was in the possession of Mary Mazyck, widow and executrix of Stephen Mazyck, the father of Mrs. Hopkins.

The schedule annexed to the deed of settlement, and therein referred to, embraces, first, certain claims under the will of Mrs. *264Hopkins’ grandfather, Benjamin Mazyck, the elder, the grounds of which will be set forth hereafter; secondly, a legacy of $6000 and two negro girls, to be chosen by Mrs. H., under the will of her father, Stephen Mazyck; thirdly, one-sixth of all the estate, real and personal, of Mrs. Hopkins’ brother, Paul Ravenel Ma-zyck, conveyed by him, by trust deed, to his mother, brothers and- sisters, should the same be adjudged irrevocable; fourthly, all the other property, real and personal, in possession, remainder, or reversion, or otherwise, to which Mrs. Hopkins was, at the time of executing the said settlement, or might thereafter, become entitled in any manner whatever.

Benjamin Mazyck, the elder, and grandfather of Mrs. Hopkins, by his will, dated *the*31st of October, 1796, among other things, provides as follows :

*“*Item. — To my friends, Peter Porcher, John Cordes, William Mazyck, Dr. Samuel Wilson, Daniel Ravenel, Thomas Brough-ton, Alexander Mazyck, and Stephen Rav.enel, the survivor or survivors of them, and, the heirs of such survivor, all that plantation, composed of several tracts, containing, as will appear by the plats, 1205 acres, which I purchased of my late nephew, Alexander Mazyck; and that small plantation, containing 183 acres, which I purchased of James Rockford; and also that plantation, where I now reside, containing about 900 acrés; (these three plantations, being connected together, make in the whole about 2288 acres, and lie on the north side of Foster’s Creek, in St. James, Goose Creek,) to have and to hold to the said eight ..trustees, the survivor or survivors, and the heirs of such survivor, to the use of my son, Stephen Mazyck, and his assigns, during his natural life, and after the determination of that estate, to the said trustees, to preserve the contingent remainders,” etc., “but in trust during his natural life, to take the rents for the sole benefit of my said son, Stephen, and his assigns, but so as in no case to be subject to his debts, charges or incumbrances. And from his death, if his present wife, Mary, should survive him, to her use and behoof, and her assigns, so long as she shall remain his widow; *and from the*
      *265
      *decease of my said son, Stephen, or the second marriage of his present wife, Mary, (whichever shall first happen,) to the use and behoof of such child or children of my said son, Stephen, as may be living at his death, or the second marriage of his wife, (whichever shall first*happen.) *to be equally divided between them,*if more than one, and their heirs.” A proviso follows, that the children of a deceased child shall take the parent’s share; and another, that the share of a daughter of Stephen shall be less, by one-fourth, than the share of a son.

“ Item. — I give and devise to my grandson, Paul Mazyck, (present youngest son of my son, Stephen,) and' to his heirs forever, my lot of land on the north side of Queen street, (known in the partition between my brother and me as number 18,) containing,” etc., “ the same to be held and leased, upon a building lease by his father, until he attains the age of twenty-one years; *but if he die under that age,*then his father shall have the use of it *during his life,*and at his death, it shall be vested in such *person or persons,*and *for such estate or estates,*as shall, upon the death of my said son, Stephen, be entitled to the plantation which *I have herein before devised to the trustees for his use.”*

Then follows a devise to his grandson, Benjamin, son of Stephen, of a lot at the west end of Broad street, on the north side, known in^the partition between the testator and his brother as number -6, with the same limitations over, in case of Benjamin’s death under twenty-one.

“ Item. — It is my will that my lot of marsh land, at the west end of Queen street, containing,” etc., *“*shall be divided into two lots, by a line running east and westwardly,” etc., *“*and then my sons shall draw lots for the same. The lot which Daniel shall draw, I give to him, his heirs and assigns; *and the lot drawn by Stephen,*I give and devise *to the eight trustees,*and the survivor,” etc., *" to and for the same uses as are declared concerning the plantations*first devised to the said trustees.”

*266To this will, the said Benjamin Mazyek, the elder, executed a codicil, dated the 21st of July, 1797, as follows:

*“*Whereas, on the 31st of October last, I, Benjamin Mazyek, of St. James’ Parish, Goose Creek, did make and duly publish' my last will and testament, and now it is my intention to make some alterations and additions thereto: now, therefore, I do hereby declare my will, as to such alterations and additions, in manner and form following: that is to say, *Imprimis,*it is my will, (as far as concerns all the real estate left by my said will to the eight trustees therein named, for the use of my son, Stephen, during his life, and, after his death, under the limitations therein contained,) that my said son, Stephen, shall have full power, notwithstanding any thing contained in said will, to devise and bequeath, by his last .will and testament, to be duly executed in writing, the whole, or any part thereof, to any one or more of his children, grandchildren, or great-grandchildren, but to no one else, in such manner and proportion, and under such trusts, conditions and limitations, as he may think fit; but in such manner, nevertheless, as not to defeat the life estate in any part of the said premises, left by my will to Mary, the wife of my said son, Stephen, in case she should survive him.”

*“*Item.— I give and bequeath to the eight trustees herein before named, and the survivor and survivors of them, and the executors and administrators of such survivor, my three negroeSj Billy, the driver, Maria and Mary, and also the half of all my other slaves, not hereinbefore particularly disposed of, together with the future issue and-increase of my said slaves, as are females, in trust, to permit and sutler my said son, Stephen, during his natural life, to have, take, and enjoy the use,” etc., “ thereof, without being, in any wise, subject or liable for his debts, charges or incumbrances; and from, and immediately after his death, then in trust for such child or children, or other more remote issue, lawfully begotten of my said son, Stephen, and for such estate or estates, and subject to such uses, trusts, conditions and limitations as my said son, Stephen, by *his*last will and testament, in writing duly executed, shall give, will, *267limit and appoint the same, or any part thereof. But if my said son, Stephen, should depart this life without making and leaving, duly executed, any such will, direction, limitation or appointment, in favor of some one or more of his children, or other more remote issue, lawfully begotten, then in trust for such child or children of my said son, Stephen, lawfully begotten, as shall be living at his death, tobe equally divided between them, if more than one, share and share alike, him or their executors,” etc., “ forever, without any further condition, trust or limitation whatsoever. Provided, that, if any such child or children of my said son, Stephen, should die leaving issue, lawfully begotten, and living at the death of my said son, Stephen, then such issue shall represent their parents respectively3 and take equally between them, if more than one, such share and shares of the said slaves as their parents, respectively, would have been entitled to take, if such parents had survived my said son, Stephen.”

“ Item. — I give and bequeath unto the eight trustees, herein before named, and the survivor,” etc., “ all the remainder of my slaves, and the future increase of the female slaves, in trust, to permit and suffer my son, Daniel, during his natural life, to have and enjoy the use,” etc., “ without being in any wise subject to, or liable for his debts, charges ■ or incumbrances. And from and immediately after the death of my said son, Daniel, then in trust, to permit and suffer my said son, Stephen, during his natural life, to have,” etc., “ the use,” etc., *“*thereof, without being subject to, or liable for his debts,” etc. *“*And from and immediately after the death of my said son, Stephen,” etc., etc., repeating the same limitations and power of appointment.

The rest and residue to Daniel and Stephen, and their heirs.

Stephen Mazyck, the son of the testator, Benjamin, the elder, left a will, dated the 23d August, 1808, containing the‘following provisions:

1. “ My will is, that all my just debts be paid in the following manner, viz., I direct that so many of the negroes whom I have lately purchased, *and who are at my absolute*disposal, *be sold*
      *268for cash, or a short credit, as shall be sufficient to discharge my debts to the several banks of this State, within six months after my decease. The rest of my debts are to be paid by the appropriation of two-thirds of the nett income or profits of my estate, reserving one-third for the support and maintenance of my family. '

2. *“*I give to each of my three daughters the sum of #6,000, to be paid to them, respectively, at 21 years of age, or day of marriage, whichsoever shall first happen, or *as soon thereafter as the circumstances of the case will*admit, but without interest.

3. *“*I give to my three daughters, and to my son, Alexander, to them, their heirs and assigns forever, as tenants in common, all the marsh lot at the upper end of Queen street, one moiety whereof I acquired by my father’s will, and the other moiety of which I purchased from my brother, which will be better known by reference to my father’s will.

4. *“*I give and bequeath to my said daughters, each, two negro girls, whom they may choose from among my negroes, not otherwise specifically devised,” etc.

6. “ I give unto my wife, one-fifth part of the rest residue, and remainder of my slaves, *including those derived under my father's will,*for and during her widowhood. And from, and after her marriage, or death, whichsoever shall first happen, 'I bequeath the same to my sons, Benjamin, Paul and Alexander, as tenants in common, share and share alike: on condition, nevertheless, that in case my said wife shall marry, they pav to her, #5000.

8. “ I give and bequeath unto my son Benjamin, during" his natural life, not subject to his debts, six hundred acres of land,” consisting in part of the brick barn plantation, and of other lands, (being part of the 2288 acres devised to Stephen, by his father, Benjamin Mazyck, Sr., as aforesaid:) “ and from, and immediately after the death of my said son Benjamin, then to and for the use and behoof of such child or children of my said son Benjamin, lawfully begotten, as he shall. leave living *269at his death, to be equally divided among them, share and share alike.

9. A clause -devising the remainder of the brick barn plantation, to his son Paul for life; limitation over, as in the case of Benjamin.

10. A clause devising other lands to Benjamin for life; with a limitation over, as in the 8th clause.

11. A clause devising lands acquired under his father’s will to his son, Alexander, for life, with like limitation over.

12. *“*I give and bequeath to my three sons, Benjamin, Paul' and Alexander, share and share alike, all the rest, residue and remainder of my slaves, *including those derived under the will of my father:*provided nevertheless, that the share of my son Benjamin shall not be subject to his debts, contracts or engagements, but that he shall only enjoy,” &c. *“*the same during his natural life. And from and after his death, the same shall be, and remain for like estates, and in like portions as the real estate herein before devised to him.

13. *“*I give, devise and bequeath the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever, including any estate, real or personal, *not herein before particularly devised and bequeathed, which I may have derived under the will of my father,*unto my sons Benjamin, Paul, and Alexander, share and share alike, and to their heirs, executors, administrators and assigns forever.

14. “ It is my will that in case of the death of any of my daughters, before attaining twenty-one years of age or day of marriage, her or their share or shares, shall go to the survivor, or survivors, share and share alike, &c.

15. “ In case of the death of any of my sons, under twenty-one, and unmarried, his or their shares shall go in like manner, as is provided in the foregoing clause, in like case, in relation to my daughters.”

Of this will, Mary Mazyck, wife of the testator, was appointed executrix, and James Wm. Gadsden, and others, executors. But Mrs. Mazyck and Mr. Gadsden alone qualified and acted. *270Mr. Gadsden is dea(l, and Mrs. Mazyck is the sole surviving and acting executrix.

Stephen Mazyck, the testator, at his death, left his widow, who is yet alive, and six children, surviving him. Of these, Benjamin and Paul, (otherwise called Paul Ravenel) Mazyck, died before the filing of the bill in the present case, having both attained twenty-one years of age; but having never married, left no issue. Alexander, another son, died, pending this suit, having attained full age, but without ever having been married, and without issue. The three others were daughters, of whom one was Margaret M., who, as has been stated, after having been married to James S. Hopkins, died, leaving no issue, but being survived by her husband.

Jane, another daughter, married Arthur O’Hara, whom she has survived: she is now the wife of Geo. Elfe. The third daughter, Caroline, is the wife of Dr. Chas. Desel.

The executors of James S. Hopkins filed the present bill against Mary Mazyck, widow, and sole surviving executrix of Stephen Mazyck, and against Dr. Desel and wife, Geo. Elfe, and wife, and Henry O’Hara, setting forth claims growing out of the said marriage settlement, and the said wills, which will be remarked upon in the following decree.

It was contended by the complainants, that Stephen Mazyck had so moulded his will, as to shew, that he intended to dispose of the property of his father, over which the latter, by his codicil, gave him the power of appointment, and his own property, as one mass, without drawing a distinction between them : that by the term “my estate,” which occurs in his will, he meant to include the one, as well as the other: and that the legacy of $6000, which he bequeathed to his daughters, should operate as a charge on the estate of Benj. Mazyck, Sr., at least, if it should turn out that Stephen Mazyck’s estate was insufficient to pay it.

The codicil of Benjamin Mazyck gives Stephen the power of appointment, after the expiration of his own and his wife’s life estate in the lands, and the expiration of his own life estate *271in the slaves, to such of his own issue as he may designate, with such limitations, and upon such conditions as he may choose to direct; and it is contended, that if he has effectually executed the power of appointment, by giving the property to others, the legacy of $>6000 may be regarded as a charge upon it; being in the nature of a condition annexed to the other legacies out of his father’s property. And I think, if he had bequeathed that property, coupled with a clear expression of such a condition, the condition would have been binding. He could have given the *corpus*to one, with a charge by way of condition in favor of another.

Such an intention, however, ought to be plain and explicit. I see no evidence of such an intention in his will.

In. the clause, in which the six thousand dollars are given, he expressly directs, that they are not to be paid until the circumstances of his estate should warrant the payment, and, by the previous clause, he indicates the difficulties which the alteration of his estate might present: He was in debt, for the discharge of which, so far as his honor was mbre immediately concerned, he directs that part of his own slaves should be sold. The residue of his debts he conceived might be extinguished by one-third of the income of his remaining property. We may conclude, then, that when those debts should be paid, he intended to raise the $6000 out of his property.

It was said, that his property turned out to be insufficient to answer these purposes: and yet it was denied, that his estate was insolvent. But whether it so turned out or no, is not the question ; but it is, how did he expect it to turn out ? for his expectations might, perhaps, be in some manner an exponent of his intentions. The property may have been wasted. It may have been subject to diminution by death of slaves; but above all, it may have depreciated. Bad crops may have been made. The price of crops may not have been such as he anticipated. The will was made in 1808, during the existence of severe checks upon commerce, sinking the price of property, and the amount of income. But the war, to which our then political *272relations eventually led, was not yet declared. Who can say, that he anticipated war ? Who can say, that he did not look to a speedy restoration of trade, and all its profits ? And if he had such expectations, and they had been realized: do we know that he might not well have concluded, his own property would pay all his debts, and meet all the legacies he bequeathed.

But again, I cannot agree, that by the term " my estate,” he meant his father’s, in all the clauses of his will. When he means to include his father’s, he does so by express words. He did not confound the two estates; but distinguished between them.

It was contended again, that the legacy of the two negro girls might be taken out of the estate of Benjamin Mazyck, Sr. But as the argument for this was the same, as that employed about the f>6000 legacy, the same answer will apply to them.

It was contended, in the third place, that the will of Benjamin Mazyck* gave his real estate, (the brick barn and *Rockford, and*other plantations, amounting to 2288 acres,) to Stephen for life, then to his wife'during widowhood, and then to such children as he might leave living at his death. That such children as he might leave living at his death, and not such as should be alive at his wife’s second marriage were under the will entitled: for the remainder was given to such as should be living at the first of those events, which should happen ; and that he must die before she could marry a second time. That Mrs. Hopkins was one of the six children who survived him, and therefore upon the happening of that contingency, their interests rested. That although the codicil of Benjamin Mazyck, gave Stephen the power of appointment, as to such estate in those lands, as should remain after the expiration of his own and his wife’s interests: yet that he had only effectually appointed a contingent remainder for life to his sons, who had died during their mother’s widowhood ; so that the appointment failed, and left that property to pass under his father’s will.

Were it not for the 18th clause of the will of Stephen Ma-zyck, I might have agreed to this. *It*is■ clear from the will *273and codicil of Benjamin, that he intended to secure a life estate in his lands to Stephen, and an estate for widowhood- to Stephen’s wife. By the will, he limits his estate, after those estates, to Stephen’s children who should be alive at his wife’s marriage or death, (for that is the true construction.) But by the codicil he gives the power to Stephen to devise it, after his own and his wife’s interest, to whom he pleases. It was that reversionary interest then, and that alone, over which Stephen had control. That he gives in the first instance to his sons, respectively, during their lives : with remainder over to such issue as they might leave at their deaths. So far there is no limitations over, in case they should die, leaving no issue then living: and as they, died leaving *none, if*the will had stopped there, the appointment would have failed for want of further limitation. But does not the 13th clause itself operate as a further limitation ? To the eifectual execution of a power of appointment, the intention to execute it is essential. But a reference to the subject matter to which the power relates, is sufficient evidence of such an intention. And when the intention to execute the power is manifest, the estates, limitations, &c., created by the person executing such power, are to be judged of by the same rules as if the property were actually his own, and he had created such estates, &c. out of it. Now the real estate of Benjamin Mazyck is expressly alluded to, not only in the clauses of Stephen’s will, wherein he devises it for life to his sons, with remainder over to such issue of theirs as might survive them, but in the 13th clause. . Let us then suppose, that that estate actually belonged to Stephen in fee simple, and enquire whether he has given it by limitations that have failed. We will first suppose, that, by a deed or other instrument from himself, he had put it out of his power to divest his wife of it, during her widowhood. Being aware of this, he devises it to his sons for life, with limitation over to their children, and then concludes by devising all the rest and residue of his interest in it, not disposed of, to his sons in fee. Here then there are the estate of testator’s wife for widowhood, the estate for life of the sons, the estates of the *274sons’ issue, and the ultimate fee of the sons themselves, all carved out. of the same lands : each of them subject to those which precede them in the order in which they have been named: the second to the first, the third to the first and second, and so on; and the devisees of them, respectively, entitled to take as soon as the preceding estates shall have been extinguished. This may be held to be a true statement of the interests created by Stephen’s will, if the 13th, or residuary clause, is sufficient to carry the reversionary interest in the lands. Residuary clauses carry every interest which the testator has not previously disposed of, or which fail; unless they contain provisions not reconcilable with previous dispositions in the will. They extend to, and carry latent reversionary interests: which, whether actually in the mind of the testator or not, will be presumed to have been within the scope of his intentions, unless by contrary provisions, he has shown an intention to exclude them. ■ I conclude, then, that the testator, Stephen, after the estate of his wife, his sons and their issue, and subject only to them, has given the fee in the lands in question to the sons themselves. What is the effect of these dispositions *?*Suppose the fee to the sons had been limited upon the estate to the testator’s widow, would there have been any difficulty about it? Suppose, that, after the wife’s estate, there had followed, immediately, a contingent remainder to third persons if alive at her death; then this 13th residuary clause in favor of the sons; and the intermediate remainder had never taken effect; would the difficulty have been greater? Would not the sons have taken in fee upon the death or marriage of their mother ? In that case their estate rvould have *been liable to be*defeated, only by the contingencies of the intermediate remainder man being in *esse,*and in a condition to take at the expiration of their mother’s estate. So here the sons took a life estate on, the expiration of their mother’s estate ; and also.took a fee in the lands liable to be divested, only by the contingencies of their having issue alive at their own deaths. It is true, that the latter interest depended on the contingency of their leaving no *issue; but*
      *275when that contingency happened, it vested in their distributees, unless they had aliened or devised it. It has been said, that it is absurd to suppose, that an interest, which could never be enjoyed by them, being to take effect after their deaths, should be given to them, since it could be of no value to them. It is true, they could not use the land after their deaths ; but it does not follow, that it was therefore valueless to them ; else it would also follow, that every one who purchases lands, or other property, commits an act of folly in giving more for the absolute and entire interest, than he would for a life estate. The power ■ of alienating for a compensation is valuable, and so is the power of devising. Neither is it absurd, to attribute to this testator the intention of giving not only a life estate, but the fee also upon a contingency to the same persons. The objects of his bounty in the first instance, were his sons; in the second in-stancé their issue. But for the expectation of such issue, he would, in the first instance, have given the fee to the sons. The issue_ being removed, is it absurd to suppose he would give what he allotted for them to his sons themselves ? We may pronounce, confidently, he would, in preference to any other of his children : when we learn from other clauses, that he made the shares of daughters one-fourth less than those of sons. I am of opinion, therefore, that by the 13th clause, the sons took a fee in the lands on the expiration of the mother’s estate, upon the contingency, which has happened, that they left no issue. The 16th clause prevents any of the daughters inheriting from the sons, who all died unmarried.

The same claim was set up by the plaintiffs with regard to the slaves bequeathed to Benjamin Mazyck, the younger, by the 12th clause of his father’s will: but the answer to it is the same as that just given in relation to the lands, excepting that the widow of Stephen Mazyck has no life estate in the slaves.

Another claim of the plaintiffs, was for the value and hire of one-fifth of the slaves of Benjamin Mazyck, Sr., which were bequeathed by the 6th clause of Stephen’s will to his wife, during her widowhood, with remainder over to his three sons, on certain conditions, should they be alive at the expiration of *276her *estate. It is*clear, *that*Stephen, in this legacy to his wife, exceeded his power, which only enabled him to bequeath the slaves to his issue; but the plaintiffs must elect to *take*either Mrs. Hopkins’ legacies under her father’s will, or disaffirm them by claiming her share of those slaves. What is the *extent to*which she had a right to claim ? whether an entire, an absolute interest, in a share of those slaves, or only an interest in such share for the time they are bequeathed to her mother ?• is a question which as it was not agitated, I shall leave open at present, and let it come up in the report hereinafter directed.

On a fifth claim, which seems to arise out of the 3d clause of Stephen’s will, nothing was said. It relates to the lot at the upper end of Queen street. It may have been sold or partitioned. I do not, therefore, feel at liberty to found any decree upon it.

It was admitted that the plaintiffs could claim nothing through Alexander Mazyck, who survived Mrs. Hopkins. Neither did they raise any claim as distributees of Benjamin, but they made a question out of the following facts :

Paul Ravenel Mazyck, on the 4th of October, 1816, executed a deed, conveying to trustees all his estate, real and persona^ under the wills of his father and grandfather; also several slaves, and all his other property, in trust, for his own use and behoof during his life, and at his death, to his mother, brothers and sisters, who should survive him. By his will, dated the *5th*November, 1816, he devises and bequeaths his whole estate, real and personal, to his sister Jane, then unmarried ; requests his mother, brothers and sisters to take nothing.under the deed, which he declares was executed at their instance, and intended solely for his own protection; and should they claim, he enjoins it upon Morton Wilkes Smith, his executor, to institute proceedings to set it aside. The complainants, seeing that Mrs. Hopkins, so far from relinquishing under the deed, had asserted her rights by settling them on her husband, claimed the benefit of the deed. Some of the defendants, in their answers, show a willingness to comply with the request contained in the will of Paul, and Mrs. Elfe claims under that will.

*277Mr. Legare contended for Mrs. Elfe, that the deed was not so charged in the bill as to be put at issue, or to throw upon him the necessity of setting up the will in opposition to it. The deed is sufficiently referred to in the bill. The bill refers to the exhibit, which describes the deed, leaving it to be produced in evidence. He also contended that the executor should be made a party, or be at liberty, before the decision of this point, to file a cross bill, in order to rescind the deed. This I should have allowed, if the executor had qualified, or interfered with the property, so as to make him liable to be sued, or entitle him to bring suit. But he has not done so. The defendants are, some of them, in possession of the property, and therefore stand as executors *de son tort,*and they have failed to impugn the deed. It must therefore stand.

As regards Stephen Mazyck’s estate, the plaintiffs are entitled to an account, and they are also entitled to an account as to the share of Mrs. Hopkins, in the one-fifth of Benjamin Mazyck’s slaves, bequeathed by Stephen to his wife. They are further entitled to have an inquiry into the valuó and kind of property left by Paul Ravenel Mazyck, and to have partition of it.

From the schedule annexed to Mrs. Hopkins’ deed of settlement, and the answers, there would seem to have been a contest as to certain interests, under the will of Thomas Young, Mrs. Hopkins’ maternal grandfather; but it is stated that a satisfactory understanding now exists on that subject. It is, therefore, unnecessary to touch it.

It is ordered and decreed, that the Master do ascertain, and report to this Court, the kind, description and value of the estate, of whatever kind, left by Paul Ravenel Mazyck, in order that the Court may proceed to order partition of the same, under the deed of the said Paul Ravenel Mazyck, or make such other dispositions thereof as may pertain to Equity; that the Master do also report in whose hands the same is, and has been, since the death of the said Paul R., and' what compensation should be allowed for the use thereof, setting off necessary expenses; that Mrs. Mary Mazyck do come to an account before the said Master, touching Mrs. Hopkins’ interests under her father’s will, *278and her interests in the value and hire of the one-fifth of the slaves of Benjamin Mazyck’s estate, which was bequeathed by Stephen Mazyck to the said Mary, and that the said Master do report an account of the estate of Stephen Mazyck not yet administered, what is due on Mrs. Hopkins’ legacy, and what assets there are for the payment thereof, and that he further report the value of Mrs. Hopkins’ interest in the said one-fifth of the slaves of Benjamin Mazyck’s estate, bequeathed as aforesaid to the said Mary, as well as the value of their hire, and Mrs. Hopkins’ share thereof, that the complainants be allowed two months after the several reports, above directed, be made out and filed, to elect in writing, to be filed with the *register,*between Mrs. Hopkins’ legacies under her father’s will, and her share in one-fifth of the slaves aforesaid, and their hire, to the one or the other of which they shall be entitled, according to their election, subject, however, to all exceptions which may be put in by either party, to the reports of the Master, and allowed by the Court; and that the costs be reserved until the reports of the Master be brought in.

The plaintiffs appealed from so much of the decree as decided that Benjamin, Paul and Alexander, under the will of their father, Stephen Mazyck, were entitled to the real estate of the testator in fee.

Because the testator first gives them an estate for life in particular tracts of land, then a remainder to their children in fee, and afterwards devises the rest and residue of his estate to them jointly, which evidently refers to property not before disposed of, and has no tendency to enlarge their estates.

The defendants also- appealed on the grounds :

1. That plaintiffs did not, in their bill, put in issue the deed of Paul Mazyck, and made out no case for relief thereon, and were, at best, entitled to discovery only.

2. That if relief could have been granted them, under the allegations of their bill, it should have been refused, for the want of parties — the representatives of Paul Mazyck not being before thACourt.

*2793. That, at all events, the motion of defendants for leave to file a. cross bill, or to amend the answer, so as to effect the same object, by setting up the will of Paul Mazyck, ought to have been granted.

*II. 8.*Legare, for defendants.

The opinion of the Court was delivered by

O’Neall, J.

Wé concur with the Chancellor, that the sons of Stephen Mazyck, under the thirteenth clause of his will, took a fee, in the land devised to him during life, and after his death to his wife for life, by Benjamin Mazyck, with the power of appointment by his will, among his children, grandchildren, or great-grandchildren, after her death.

The effect of the appointment, as to the quantity of estate created by it, must be judged of by the same rules as if the property had belonged to the person making the appointment.

The estate which Stephen had the power to devise, under the codicil of Benjamin Mazyck, was the reversion in fee after the death of his wife. Out of it he carved, first, an estate for life to his sons; second, to the children of his sons; and third, cross remainders among his sons, upon the contingency of either dying without children; — the ultimate reversion in fee, upon all these estates failing, was, however, not disposed of in the direct devises to the sons.

The thirteenth clause may be properly termed the residuary clause, under his power of appointment. It is in the following words: *“*I give, devise, and bequeath, the rest, residue and remainder of my estate, real and personal, *whatsoever and wheresoever, including any estate, real or personal, not herein before particularly devised and bequeathed,*which I may have *derived under the will of my father,*unto my sons, Benjariiin, Paul and Alexander, and unto such child or children whereof my wife may be encient at my death, who may be born alive, share and share alike, and to their heirs, executors, administrators and assigns forever.” The intention to execute the power of appointment, by devising the whole estate in the land, is most obvious, and the only question is, does the ultimate reversion in *280fee pass under this clause ? If it was so intended — and this is manifested by the words used — it will be conceded that it must take effect. It was supposed that this clause had only relation to such parts of the estate as had not been previously mentioned in the will of Stephen. But that construction cannot prevail: for the words used are *“ any*estate, real or personal, not herein before particularly *devised and*bequeathed.” What estate in the land was not, in the will, before particularly devised and bequeathed? The ultimate reversion in fee is the answer. However strange it may appear to us, that he should devise to them the ultimate reversion, upon the failure of their own and their children’s estates, yet there is nothing to prevent it from having legal effect. When stripped of the confusion of the different clauses, devising to the sons separate estates for life, and to their children after their deaths, the effect of the whole will, taken together, is, that the sons (for there was no child or children of which his wife was encient at his death) take a joint estate in fee in the land, to be defeated by all, or either, leaving issue living at their or his death, when the estate in fee would be severed, the issue taking in fee the particular lands devised to their respective fathers for life.

In 1 Rob. on Wills, 489, it is said “ that a residuary clause will extend to every latent *reversion*which the testator might have in him, unless it be expressly excluded by devise to some other person.” This rule must apply to the construction of a will, making an appointment, as well as to a devise of the testator’s own estate. The object, in both cases, is to ascertain, by a fixed rule, what was the intention. The devisor appointing, stands in the place of the person from whom he derives his power, and, if his devise is within its limits, and clearly indicates an intention to devise, its effect must be judged of by the same rule which would have applied to the same devise by his devisor or grantor. If this clause had been found in the will of Benjamin Mazyek, after the devises oí estates for life to, the sons of Stephen, and after their deaths, to their children, with cross remainders to the sons, the *latent reversion*in him *281must have passed under it: for, in the language of the authority, it is not “expressly excluded by a devise to some other person.”

The next question relates to the trust deed from Paul R. Mazyck, in favor of his mother, brothers and sisters. This deed is not set out in the bill, as part of the complainants’ title to relief; it is referred to in the schedule annexed to the marriage settlement, which is filed as an exhibit. This I do not think was sufficient. It might have been enough in a bill for discovery. But when it is made the ground of relief, it should have been charged in the bill to have been executed, and filed as an exhibit. Unless this is done, it will be impossible to say, from the record, that the complainants are entitled to relief in .this respect. It might be that the deed, on being charged and exhibited, would at once appear to be void, or that other parties, not before the Court, were necessary to an adjudication upon it. The latter supposition turns out, in this case, to be true. The trustees named in the deed, or the survivor of them, are parties in interest. For the trust, either entirely or partially, may not be executed, and, if so, the legal estate in the whole, or part of the property conveyed by the deed, is in them, and it follows that they must be made parties, before any decree in the cause can divest it. So, too, I apprehend, the executor of Paul R. Mazyck, or if there is no qualified executor, his administrator *cum testamento annexo,*must be made a party. For it may be that debts exist against his estate, which would be entitled to be paid out of the property conveyed by the deed of trust: and if so, his executor or administrator can alone bring them before the Court. It is true that these objections are brought to the view of the Court at a very late period of the cause, but still they are such as must be listened to at any stage of the case : for, until remedied, they must prevent a decree for relief under the deed of trust.

In the case of *Jones*vs. Jones, 3 Atk., 110, the bill charged forgery in a lease, and prayed to be relieved against that; but, by way of- inducement, only mentioned there were fraudulent *282circumstances attending this case, without making it a distinct charge from the forgery, or bringing tlie trustees, who were parties to the lease, and to whom the fraud was imputed, before the Court, and for the want of this the defendant’s counsel-objected to the plaintiff’s going on with the cause. *Lord Hard-wicke said, as there had been already a decretal order, and an issue to try the forgery, and brought on now upon the Equity reserved, the only method to assist this case was to let the cause stand over, and to allow the plaintiff, on paying the costs of the day, to bring a supplemental bill, in which he may charge the fraud and make the trustees parties.*

This authority, it seems to me, covers two of the objections taken — the necessity of setting out the trust deed, and that the trustees or the survivor should be made parties: for, in this case, as in that cited, the trust deed in this, as the fraud in that, is the ground of relief, and it is not made a distinct substantive charge; it can be hardly considered as even stated by way of inducement, and the trustees or the survivor are, or is, the party against whom the legal relief is to be obtained.

In the case of *Humphreys*vs. *Humphreys,*3 P. Wms., 349, and of *Farley*vs. *Farley,*1 McC. Ch., 514, the rule is distinctly established, that the Court will not decree upon the rights of a deceased person, until his executor or administrator is made a party, complainant or defendant, even although the person entitled to administration may be a party.

It is ordered and decreed, that so much of Chancellor Johnston’s decree as conflicts with this opinion be modified, according to the principles herein contained, and that the cause be remanded to the Circuit Court, and that the complainants have leave to amend their bill, by setting out the trust deed executed by Paul R. Mazyck, in favor of his mother, brothers and sisters, and to make the trustees, or the survivor, and the executor, or administrator, with the will annexed, of the said Paul R., parties to this cause.

Johnson and Harper, JJ., concurred.

*Decree modified.*