#### *John Terrel et al. vs. Evander Easterling.*

Where a testator, by his last will, devised certain real estate to the plaintiffs, as tras» tees for his daughter, (therein named,) reserving the “sawing timber,” growing thereon. It was held to be a good reservation, and sufficiently explicit to be Understood.

*Before*Earle, J. *at*Marlborough, *Spring*Term, 1841.

Whose report is as follows: — Trespass *quare clausum*fregii, and cutting and carrying away the plaintiff’s timber. William Pledger made his last will and testament, on 10th August, 1825, and died. He devised and bequeathed his whole real and personal estate to his wife, for life. After her death, he devised to John Terrel, and the other plaintiffs, “the following tracts of land; one tract, where Mr. Emanuel now lives, and the lower half of a tract lying between Herendenes Prong, and Crooked Creek, next to Mr. Crossland’s land, *(the sawing timber*excepted”) then *25follows a bequest of negroes, “in trust, nevertheless, to permit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, *&c.*during the time of her natural life,” with limitation over. He next devised to the same persons, “the upper half of the same tract, between Herendenes Prong and Crooked Creek, *the sawing timber*excepted,” with a bequest of negroes, in trust, for the use of his daughter, Caroline Williams, for life, with similar limitations. The testator, lastly, devised to the same persons, as follows, “all my lands, which I have not herein-before disposed of, also” «fee., then follows a bequest of negroes, “in trust, nevertheless, to permit my son, Philip Williams Pledger, to use and enjoy the same, during his natural life,” <fec. with limitations.

At the death of the testator, there was a saw mill, on a tract devised to Philip W. Pledger, after the death of the widow, and which lay adjoining the tract, between Her-rendenes Prong, and Crooked Creek, devised in equal portions to Mrs. Emanuel and Mrs. Williams; and. out of which, the sawing timber was excepted. After the death of the tenant for life, Philip W. Pledger entered upon the saw mill tract, sold and conveyed it, together with the right to cut sawing timber, on the tract devised to Mrs. Emanuel. To perfect the title, there being judgments, he caused the Sheriff to levy on and sell the same tract, who also conveyed the right to cut sawing timber, as appurte-tenant thereto. Under these conveyances, the defendant entered, and claimed and exercised the right of cutting sawing timber, on the tract devised to Mrs. Emanuel, as appurtenant to the saw mill tract. For that trespass, this action was brought.

The persons appointed as trustees were also nominated as executors, after the death of the widow: but they never qualified, nor otherwise took upon themselves the executive of the tracts; and never interfered in any manner, with the management of the property. Mr. Emanuel and his wife were in possession of the lands, devised to her, at the date of the will, and have been so, ever since.

It will be perceived from this statement, that several questions arose; 1, as to the right claimed by the defendant, to cut sawing timber, under the grant of Philip W. *26Pledger; 2, as to the right of the plaintiffs, to maintain this action.

In regard to the first, 1 considered the reservation, contained in the words, “ sawing timber excepted,” in the devise to the plaintiffs, in trust for Mrs. Emanuel, as incompatible with the enjoyments of those rights, that are inseparable from an estate in fee ; repugnant to the nature of the estate devised, and therefore void; in the same manner as would be a condition, that the grantee should not commit waste, or take the profits,' or that his wife should not have dower, and the like. I considered it, also, void for uncertainty, both as to the person in whose behalf it was made, and as the other lands to which it was to be appurtenant; and that this uncertainty could not be renewed by proof, *aliunde,.*Supposing the objections not to be good, and that the reservation was valid, constituting a separate right or interest, independent of that of the devi-see, I considered that it did not pass to Philip W. Pledger, under the general words, “all my land which I have not herein-before disposed of;” but that, as an inheritable right, it descended equally upon the heirs at law, of whom there were four, as a joint interest to be enjoyed like other rights of like kind, jointly, or to be jointly assigned; and that the defendant, as the assignee, or grantee of Philip W. Pledger, in regard to this right, took nothing.

In regard to the second question, as to the right of the plaintiffs’ trustees, to maintain this action, I was inclined to think they could not, and that the action should have been by Emanuel and wife ; I thought it safer to refuse the motion for non-suit, and instructed the jury to find for the plaintiffs, reserving the question, and with leave to *the*defendant, to enter a non-suit, if the Court should be of opinion, that the action is not well brought by the present plaintiffs.

*Grounds of Appeal.*

1st. Because his Honor, Judge Earle, erred in deciding on the motion, in the Court below, that the plaintiffs, who are trustees by virtue of a clause of the will, giving to the *cestui que*trust, (who was in possession at the execution of the will, and continued in possession to the time of ac*27tion,) a life estate, and after her death, to the heirs of her body, with a still farther limitation, upon failure of issue, • at her death, the plaintiffs never having had possession, exercised authority, or taken upon themselves any execution of the trust, could maintain an action for an injury to the possession.

2nd. Because the trust was executed, and the lands vested in the *cestui que trust,*who, alone, could maintain this action.

3rd. That the *cestui que trust,*being in possession at the time of the execution of the will, and continuing in possession, exclusively, to time of this action, was a tenant for life, with the right of committing waste, and could, alone, maintain an action for injury, merely to the possession.

4th. That the right, to cut saw-timber, was reserved by the testator, and conveyed by a subsequent clause of the will, to the said trustees, for the use and behoof of P. W. Pledger, for life, with a limitation over, under the name of land, and the said P. W. Pledger went into the use of the same, and sold to. defendant’s father, with the mill tract, to which it was intended to be, and was appurtenant, and was levied upon, and sold by the Sheriff to defendant, to perfect the title, on a judgment obtained against the executrix of the will, on a debt due by testator, in his life time.

5th. That the right to cut saw-timber is a property, of the nature of an incorporeal hereditament, and is subject to a levy, and was properly conveyed by the sale of the Sheriff, and the sale of Pledger, inasmuch as it was reserved by the testator, and sold upon a judgment, on a debt due by him, in his life time.

*McQueen,*for the motion.

This case, may it please your Honors, was submitted to his Honor, upon legal questions, in the Court below, and was so tried, by supplying a few matters of fact on proof, and comes now before you upon the motion for a non-suit.

The first ground, as to the plaintiffs’ right to recover, presents two questions. 1st. Is the trust an executed trust, or is it executory *%*2nd. Suppose it to be- executory, can the plaintiffs recover for an injury to the possession; they never having taken upon themselves the execution *28of the trust, nor having been in possession: and the *cestui que*trust, in the actual possession, from the time of, and even before the making the will, to this time.

The first question, then, may it please your Honors, I presume, will be decided mainly upon the face of the will, and the application of those principles, that have heretofore been established, in cases involving the same questions.

The lands here in question, with all the other lands, are loaned to the widow of testator, for life, and after her death, to be divided, in the following manner.

They are, then, given to John Terrel, and others, to wit; one tract, *where Mr. Emanuel now*lives, and the lower half of a tract, lying between Herendenes Prong, and Crooked Creek, next to Mr. Crosland’s land, (the sawing-timber excepted.) “ In trust, nevertheless, to permit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, without the control or interference of her husband, during the term of her natural life, and after her death, to convey the same to the heirs of her body; but should my said daughter die, leaving no heirs of her body, surviving her, then I give the said Lands and ne-groes to the said,” trustees, «fee.

Let us see, then, what estate is this. I will not attempt, here, to trace the doctrine of uses and trusts, but will only say, that when there is nothing farther to be done by the trustees, to vest the use of a freehold estate, it is an executed trust, and vests the legal estate. In 4th Kent’s Comts. p. 303, this doctrine is found, “ the *cestui que trust*is seized of the. freehold, in contemplation of equity, the trust is regarded as the land, and the declaration of the trust is the disposition of the land.” Again, on page, 305, same vol. on executed trusts, may be found as follows. “It is executed, either when the legal estate passes, as in a conveyance to B, in trust, or for the usé of C, or when only the equitable title passes, as in the case of A, conveying to B., to the use of C, in trust for D, the trust, in this last case, is executed in D, though he has not the legal estate;” and all the cases decided in our own State sustain the position, that when nothing remains to be done by the trustees, to give the use, it is executed, and the estate *29vests; and I have found no case decided, in our own Courts, or elsewhere, that does not declare the trust executed, when the trustees are not required to convey, or to receive, and pay out, or apply the profits and rents, to make repairs, or do some acts, in the management of the estate. In fact, in a large majority of the cases, the receipt and disbursement of the rents and profits, settle the question.

In this case, then, what single act is to be done by the trustees, to vest the use in the wife of Emanuel *1*She is in possession at the time of the date of the will, as appears on its face, and I see no authority clearly given to the trustees, even to enter on the premises. The lands, after the death of the widow, were to be divided, and it is not denied, that Mr. Emanuel was, at the time, in the possession of the portion, given to the use of his wife, and has continued so, ever since. The wife then has been in the enjoyment of the use given her, the trustees are to allow her that sole and separate use, they are to take no charge or notice of the rents and profits, to do no'other act, that I can perceive, and how can the trust be executory *1*The estate, at her death, is to go to the heirs of her body, which, according to well settled law, now in this State, are her heirs generally. See the case of *Ramsey vs.*Marsh, 2nd. McCord, 252, also, the case of *Jasper vs.*Maxwell, --- Equity, 357. In this last case, this doctrine is laid down, “Equity always compels the trustee to surrender the legal estate to the *cestui que trust,*unless the receipt of the profits, by the trustee, is necessary to effectuate the intention of the creator of the trustalso, see the case of *Hopkins vs.*Ward, 6 Munf. 41; and the case of *Cleary vs. McDowell, et al.*Cheves, Rep. 140; and also, the case of *Pringle andothers, Trustees, vs. Allen,*1st. Hill’s Chancery, 135.

But it may be said, the fact, that the will requires the trustees to convey to the heirs of the body of Mrs. Emanuel, will make it executory. This is not antecedent to the enjoyment of Mrs. Emanuel’s life estate, and, in fact, cannot be of serious consideration, because no conveyance to them would be necessary; the law, by the statute of uses, conveys to them in such a case as this, and such a requi*30sition, requiring no more than the law does of itself, will be regarded as an useless expression. Then, the fact that the estate is not to be subject to the control or interference of. the husband, will be relied upon; but in what way is he to be prohibited] The trustees are not to take the rents and profits; they are not to take the possession of the premises; they are not to lease the lands, and no express or implied right, that I can see given them, will allow them to do either, or, in fact, any other specific act of dominion. Suppose now the trustees were to assume the right of entering on the premises and turning off the *cestui que*trust, unless the hjisband would refrain from any, the least interference, or control, could they take the possession and lease out the premises, or could they hold the possession, under any implied right] I cannot think so; for, according to the case of *Jasper vs. Maxwell,*before cited, equity would compel them to surrender the sole and separate use and enjoyment to the wife, who is to render the trustees no account of the rent's and profits, and, as a legal consequence, she must retain that enjoyment for her life time, and it is not certain indeed but that the testator intended by the words “convey the same to the heirs of her body” above alluded to, that she should convey the same to the heirs of her body; and if the will will bear that construction there is an end to this controversy.

By noticing the next succeeding clause of the will, we find the following, “but should my said daughter die leaving no heirs of her body, surviving her, then X give the said above land, and negroes, to the said John Terrel,” and now what are we to infer from this, but that should she leave heirs at the time of her death, the whole estate is gone] X need not say to your Honors, that the terms, heirs, and heirs of her body, in this State, are, in legal contemplation, the same, and the law will construe the term and give it its legal meaning. If so, then this must be an estate in fee, or, at most, in fee for life, with remainder to other persons, and must be vested. If the testator did not so regard it why reconvey it to the trustees] He had before given it to them, in trust, and if he bad not intended that it should pass, upon her leaving heirs of her body, which the law construes for him to be heirs generally, *31why again give it to the trustees'? This seems to me to be a fair construction as can be made, harmonizing the words of the will and the law of the land, and I see no subsequent clause of the will to change that view. There is. a part of the last clause of the will, which is in these words viz: “and in case both my daughters, Mary Ann and Caroline, should die without leaving any children surviving them, then I give the estate, herein-before left to their use, to such of my other children as may be then living, or their heirs” of which there may be some notice from the other side, because the word, children, is used; but it seems to me that this clause is in favour of my above position, rather than against it. It gives, if it be allowed to apply to the clause, making the first devise to Mrs. Emanuel, a life estate, at least, to her, and it is immaterial as to any other effect, and indeed the words *“children or their heirs''*seem to me in the very last of the clause to make it a fee simple, or at least a vested remainder in their children, or their heirs. And this clause puts the question at rest, on the right given in the first clause, in relation to Mrs. Emanuel, to her or the trustees, as it may be construed, at her death, “to convey the same to the heirs of her body” for it will pass at her death, by operation of the statute of uses, to the remainderman, whoever he may be.

I did not design, may it please your Honors, in the commencement of this, to spin out argument to this length; but rather to cite your Honors to authorities bearing on the points, and will leave the construction of the instrument without farther comment.

But should your Honors construe the instrument to create an executory trust, then the question presents itself, whether these plaintiffs can maintain this action for an injury solely to the possession.

The trustees never took upon themselves the execution of the trust, and never were in possession; but the *cestui que trust*has always had the occupancy, actual, and upon this ground I think the plaintiffs must surely fail.

The action of trespass *quare clausum, fregit,*according to all authority, is for injury to the possession, and without the trustees taking on themselves the execution of the trust, they certainly can maintain no action; they cannot *32even *contend*for a constructive possession, upon the possession of the *cestui que*trust, unless they had acted.

But suppose it may be said, that they were trustees as to this trust, the farther question arises, can they not, being in the actual possession, maintain this action where the *cestui que trust*is in the actual enjoyment and possession; can her possession be their possession'? They had no right to the possession, they were not even to have charge of the rents and profits, no right of entry to take charge of the rents and profits, the *cestui que trust*was not even to account to them for them, but is exclusively entitled to them for her life time. Whose right, then, is affected and to be remedied in this form of action'? Surely the person whose property is injured; suppose it had been corn growing in the field that was taken, would the trustees have to account for it; or would it merely affect the interest of the *cestui que trusts*Surely the latter. She would have a right to gather and use it, and render no account to the trustees. I can find no case authorizing one, even having a right to the premises, without actual possession, in himself, at the time, if the premises be occupied by any one, to bring an action of trespass *quare clausum fregit;*and believing that the bare suggestion of this view to your Honors will be sufficient will not dwell longer in argument upon it, but cite your Honors to the following cases; *Danford vs. Lowrey*3 Haywood 68; which declares that trust estates are subject to the same rules as legal estates in every case, dower excepted; also the case in Cheves Rep. 140, above referred to, also the case of *Amick vs.*Frasier, Dudley’s Rep. 340, also a case, *Campbell vs. Arnold*1st Johnson’s Rep. 511, where this doctrine is laid down “a lesser cannot maintain *trespass, quare clausum fregit,*against a stranger for cutting down and carrying away trees while there is a tenant in possession, the action can only be brought by the tenant in actual possession” also a case, *Ward vs. 1W Cauley*4th Term Rep. 489 is the following, A, having let his house, ready furnished, to B, cannot maintain trespass against the Sheriff for taking the furniture under an execution againstB. though notice were given that the goods belonged to A. because trespass is founded on a tort done to the possession, which was not in A. at the time, also a case, *33*Crosby vs.*Wadsworth, 6tli East. 602, is the following, “one who has contracted with the owner of a close for the purchase of a growing crop of grass, then for the purpose of being mown and made into hay, by the vendee, has such an exclusive possession of the close, though for a limited purpose, that he may maintain trespass *quare. clausum fregit*against any person,'entering the close and taking the grass, even with the assent of the owner.” I have rested so confidently on the above grounds, that I have confined my efforts in this case principally to them, and will not dwell lengthily on the other grounds of appeal. But should ' your Honors entertain different views from mine in relation to those grounds, then, I submit, that the right of cutting saw timber was a legal right, not incompatible with the nature of the convéyance. Suppose it- were a fishery, or a right of way, would • it be illegal or incompatible *1*I ¡respectfully think not, and will only cite your Honors to 4th Kent’s Commentaries 310, part 6; there it is laid down, “Every estate and interest, not embraced in an express trust, and not otherwise disposed of, remains ,in, or reverts to, the person who created the trust.” Then, if this is a right, it remained in the testator, and even if not disposed of in any subsequent clause of the will, there was no violation of the right of these- plaintiffs in cutting" it: they have nothing to complain of and cannot recover. In. such case .the parties in possession would certainly have to bring this action, or, at most, the persons having the legal right to immediate possession. -

It escaped my notice at the time of the trial, or rather the decision on stateixufits, that the Sheriff stated that he did not levy on the right of cutting saw timber on Mrs. Emanuel’s land, but included it in the deed; nor did I know it until the amendment of the report recieved from his Honor; but as to the levy, the report now settles the question. But, I submit this view earnestly to your Honors, that the right of cutting the saw timber was conveyed to the trustees for the use of P. W. Pledger, in the residuary clause of the will, by these words “all my lands which I have not herein-before disposed of.” Under the term lands, according to Judge Blackstone, incorporeal heredita-ments may pass, and every interest, real: and the right of *34cutting saw timber, having been reserved, the lands adjoining the Mill tract, it seems to me, might pass under the gene ral term used, if the defendant had have shown by parol that it was intended to be appurtenant by the testator, and has been so considered by all the parties interested, ever since the testator’s death. If your Honors will refer to the clause of the will giving to William Ellis Pledger a devise or bequest, you will find that the testator, then intending to give to him an interest, and rights in the realty, says “the following land” and under the term, land, he gives only the privilege of running his new mill race through such land as it then ran through; also the privilege of *cutting*timber, making a dam and raising the water, for a mill on another tract of land. And if this would amount to an ambiguity, then the defendant should have been allowed to prove by parol, and to have shown the understanding and intention of the testator, and of all the parties in interest afterwards, by which this right has been, used by several who rented and indeed contracted for and used the mills, on the tract conveyed to P. W. Pledger.

If, then, the trust be executed in P. W. Pledger, and the right to cut saw timber passed to him, his conveyance alone to the defendant is sufficient; or even if the trust be merely executory, (as to all of which the arguments above, as to Mrs. Emanuel’s part, will apply) yet, I take it, allowing the right to have passed to him to cut the timber, his conveyance of the land, and that right as *cestui que trust*alone, is sufficient to vest the right in the defendant for his life time; see the case *Elliot vs. Armstrong,*2nd Blackf, 198, (found in 2nd Equity Digest 483) which says, that “the estate of a *cestui que trust*may be sold and conveyed by him, as well as any other estate.” If this be law, and tie *cestui que trust*had this right, he has parted from it for his life time. All of which is respectfuly submitted.

12th May 1841. J. W. QUEEN.

I will only add that Mrs. Emanuel has a numerous family of children now living.

*35Dudley, *for Appellees.*

The first ground of appeal assumes that the *cestui que trust,*being in possession when the trespass was committed, that the plaintiffs, who are the trustees, cannot maintain this action ; and secondly, that the plaintiffs never took upon themselves the execution of the trust, or exercised any authority in relation to the trust estate. So that the first inquiry is, could the plaintiffs sue at all, as trustees'? and the second is, if they could, would not the circumstance of the *cestui que trust*being in possession, prevent them from maintaining this action'?

If the legal estate is in the trustees, they are the proper persons to sue for an injury to the land, unless precluded by the objection arising from the want of possession. In general, he who has the legal right should bring the action for an injury done to it. The ground taken, assumes that the trustees, in this case, had not the legal right, because they had never exercised any authority over the trust estate, or taken upon themselves the execution of the trust. The fact is not admitted, that the trustees ever have so disrobed themselves. They may not have been very diligent, or watchful over the interests of their *cestui que*trusts, but they have been sufficiently so, to secure the very objects for which the trusts were created. They have suffered the property to remain in the hands of those, who were to be benefitted by it, and have had no active agency in its management, simply because their interference was unnecessary. Their part was fully acted, in seeing that the *corpus*of the estate was not wasted. They have exercised no authority over it, because no attempt has been made to defeat the objects of the trust. Would an officer forfeit his commission, because he did not *“charge bayonet*in time of peace, when the foot of an enemy was not upon the land ? Would a trustee be in a worse condition, because he did not ride over the trust estate, and direct the farming operations, when the *cestui que trust*had no need, whatever, for his services, and could do much better without, than with him'? It is enough, as with the officer, that he comes forward when he is needed. In fact, the position taken by the appellant, when reduced to its simplest terms, is this — that a trustee loses his authority, because he does not seek opportunities to exercise it unnecessarily.

*36It is submitted, that in point of law, a trustee to whom the legal estate is conveyed, remains the owner of it, until he renounces his authority by deed, whether he assumes the management of the trust estate, or not. Cruise’s Dig. Title xxxii, c. 26, par. 2, 3, 4. To divest himself of the title, he must disclaim by deed. This is the only evidence of his refusal to accept. The bare inactivity of a trustee cannot have that operation. This doctrine is again asserted, Cruise’s Dig. Title xii, c. 4, par. 59.

It is not pretended that the plaintiffs, in this case, have so disclaimed. On the contrary, if such had been their wish, or intention, the appellant might have availed himself of this part of his defence, viz: procuring them to do so before the trial. With two exceptions, all the trustees reside within the limits of the district where this action was brought,’ and were accessible to the appellant, who might have consulted them as to their wishes, in relation to a disclaimer. And as an additional circumstance, one of them was present at the trial, and witnessed its progress from the beginning. So much then, for the right of the plaintiffs to sue as trustees, disconnected with the question arising out of the possession.

As to this, which is the second enquiry arising out of the appellant’s first ground of appeal, the appellee will endeavor to maintain, 1st; That the landlord may bring the action, unless the tenant has a right to the possession, in exclusion of all others. This is to be inferred from what is said in 1st Ch. PL 175, that without an exclusive interest, *case*is the proper remedy. By which, may be understood, that unless the tenant has an exclusive interest in the possession, he cannot maintain trespass; so, also, in 1 Ch. PI. 174, it is- said, the action lies, however temporary the interest, if it be in exclusion of others. So that it would seem, that to deprive the landlord of the right to bring this action, he must have given to his tenant an exclusive interest in the possession. The true principle, perhaps, is this — that whenever the landlord has the right of property, and the right of immediate possession, he may maintain this action, in any case where the defendant is not in possession. It is laid down in 1 Ch. PI. 179, that trespass cannot be maintained where the right of posses*37sion is in reversion, which justifies the inference, that it can be, where the right is not in reversion. The owner is always constructively in possession, where there is no one to dispute that right with him. This action was sustained, where there was an agent in possession, to prevent depredations, though the agent cultivated a part of it for himself. 3 McC. 424. This must have been, because the agent had no exclusive right, and that the owner could retake the possession whenever he pleased. That to maintain trespass, the plaintiff *must have possession,*is no less the law, in relation to actions brought for injuries to real, than to personal property. It has been often decided, that in actions of trespass, brought for injuries to personal property, it is sufficient, that the plaintiff has the *right of immediate possession.*In Archbold’s Civil Pleadings, 22, it is said, that if an injury is done to a horse, whilst in possession of a bffillee for hire, the owner must bring case, and not trespass; but that trespass lies where the horse was only lent. This must be, because the owner had the right to reduce the horse to possession at any time. To the same point is 8 Johns. Rep. 432, where it is said, that to maintain trespass, the plaintiff must have such a right, as entitles him to reduce the goods into possession at any time. So, also, is 1 Hill 404. Thus far, the appellee has endeavored to demonstrate, that although a tenant may be in possession, where a trespass is committed upon land, yet the owner of the land may maintain this action, if the tenant has not such an interest in the premises, as is inconsistent with the landlord’s right of immediate possession. 2d. The appellee will attempt to show,- that a *cestui que trust*in possession, is but a bare occupant under the trustee, and that his possession is not inconsistent with the right of immediate possession, which the plaintiff should have, in order to entitle him to maintain this action.

The authorities on this point are Jeremy on Equity, 27, where it is said, that the possession of the trustee is the possession of the *cestui que trust.*And in Esp. N. P. page 432, it is laid down, that the possession of the latter, is the possession of the former. That this relation should be so intimate and amicable, results from the duties of the former, which consist in the defence of the land, the perma*38nency of the profits, and the execution of estates. Cruise Dig. Title xii, c. 4, par. 4. To perform these duties, it is necessary that the trustee should have the power, at all times, to enter upon the estate, for the protection of the interest of the *cestui que trust.*The former cannot acquire a title under the statute of limitations. 3 McC. 467. Their possessions, then, being one and the same, are not inconsistent with each other, and the trustee has not only the right of possession, but the legal possession itself, through his *cestui que trust.*3d. The appellee submits, that a *cestui que*trust, in possession, is but a tenant, at will, to the trustee; and if so, that the latter may maintain this action for a trespass, injurious to the freehold. As an authority on the first branch of this proposition, see 1 Cruise Dig. 412, 3 par., where it is said, that a *cestui que*trust, in possession, is considered in a Court of law, as a tenant, at. will, to the trustee. See, also, 1 Chitty Gen’l. Py 750. As to'the second branch, see 1 Hill, 260, where it is laid down, that a landlord may bring trespass *quare clausum fregit,*for an injury to the freehold, though a tenant at will was in possession.

The foregoing authorities seem to establish, that the plaintiffs in this case may claim the rights of trustees, and that one of those rights is,. to bring the present action for an injury, (cutting trees,) to the freehold, though their *ces-tui que trust*was in possession.

The second ground, taken by the appellant, is, that by the words of William Pledger’s will, the trust was executed nr the *cestui que*trust, and, therefore, that he, alone, should bring the action.

Whether a trust is executed, or not, depends upon the intention of him who created it, as manifested by the instrument declaring the trust. 1 Cruise Dig. 414, par. 19. It shall not be executed, when any object is to be effected by the legal estate remaining in the trustees. 1 Hill, 413, as when made for the separate use of a married woman, 1 Cruise Dig. 413, par. 15 — do. 414, par. 19; or as was the case in 1 Hill, 413, where the trust was to protect the property from being sold for C. P’s. debts, and to provide a home for his family. So that the question arises, was there any object to be effected by declaring this trust, and *39would the execution of the trust defeat that object *1*This depends upon the words of the will, from which we must collect the intention of the testator, and then determine whether his intention would be defeated in declaring this trust executed. The words of the will are, (so far as they relate to the disposition made of the tract of land, here trespassed upon,) “ in trust, nevertheless, to permit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, without the control, or interference of her husband, during the term of her natural life, and, after her death, to convey the same to the heirs of her body,” <&c. Here, there is an object to be effected, viz: to permit the testator’s daughter to use and enjoy the same, without the control, or interference of her husband. If this trust is to be construed as executed, then the whole estate will be placed under the control of her husband, and thus defeat the very object, which the testator had in view, in creating it. So, then, there is an object to be effected by confining the legal title in the trustees ; and the Court will not construe this trust executed, particularly as it was made for the separate use of a married woman, in whose favor the Courts will ever, *if possible,*so construe a devise made for their benefit. 1 Cruise Dig. 413, par.

The third ground of appeal, requires no comment, as it is already answered by the remarks made upon the first and second.

The fourth assumes, that the testator reserved the right to cut saw timber from this tract, which right was bequeathed to P. W. Pledger for life, who sold the same to defendant’s father, and that to confirm the title, the land, with this right, was levied on, and sold by the Sheriff to the defendant, under an execution against the testator, himself. It is conceded, that such a reservation was made ; but it is denied, that P. W. P. ever made such sale. There was no evidence of it on the trial. It is also insisted, that under the words of the will, this reserved right did not pass to P. W. Pledger, at all, and was altogether undisposed of by it. The words applicable to this question are, *“all my lands tohich I have not herein-before disposed of.”*Would a right to cut saw timber, pass under the word “landsV’ It *40would, if such a right máy he classed as real estate. Is *it!*Timber, growing upon land, is a chattel interest; 1 Comyn on Contracts, 74. So is Wheat. 1 N. Y. Dig. 558. If so, then the right to cut timber, growing upon this land, could not pass under the words, “ all my lands.”

There was no evidence, that the Sheriff sold the right to the defendant’s father. His sale-book shows, positively, that he did.not. In fact, is such a right capable of levy and sale, by a Sheriff, under. execution *1*See Bac. Abr. Title Sheriff', N. 5, where it is said, that “if one be tenant for years, without impeachment of waste, and a *fi.fa.*come out against him, the Sheriff cannot cut down and sell timber, for the tenant had only a power' to do so, arid no interr est, as he hath in standing corn, which, upon *afi.fa.*against him, the Sheriff may sell.” In this case, there was but* a power, which the Sheriff could not levy upon, of sell. It is conceded, that* he sold a part of the testator’s *land;*but, admitting that he had the authority to levy upon the reserved right in question, this carinot avail the defendant, unless he put in execution, and sold that right. His own sale-book, as. well as his evidence on the trial, established, most conclusively, that he neither levied upon, or sold it. His deed to the defendant’s father conveys it, but that is mere waste paper, without a previous levy, upon all that the deed purports to convey. The only view in which the defendant can expect to be benefitted is, by showing that this right was appurtenant to the tract which he bought, and passed to the purchaser, by the .sale of the land, as an incident follows its principal. To be appurtenant, it must arise from the express words of the testator’s will, or from the long asserted and exercised use of the right to cut timber from the particular tract on which trespass now sued for was committed. No one will pretend that the testator has made it appurtenant, by his will; then, it remains for the. defendant to show that he, and those, under whom he claims, have exercised this right, without interruption, for the space of twenty years. The testator died in 1825; his widow died in 1832, having occasionally cut timber upon the tract, now in possession of the plaintiffs’ *cestui que trust,*though not without frequent complaints and interruption on his part. The same state of things continued on the part of P. W. *41Pledger and defendant’s father, until March, 1840, when this action was brought. So that, neither from long continued use, from the express words of the testator’s will, from the sale of the Sheriff, or from private contract with P. W. Pledger, can the defendant establish any right to cut the timber in question.

The appellant’s fifth ground has been anticipated in the remarks made upon the fourth.

The attention of the Court is particularly called to the report of the presiding Judge, which, in every instance, speaks of the “ right” to cut saw timber, and not of the *saw timber*itself. If the defendant cannot establish his right to cut timber, under the sale by the Sheriff, he must show that P. W. Pledger sold it to him, and that he had a *right*to do so.

*Curia, per*

O’Neall J.

The only ground, which will be considered, is the fourth. For the judgment to be pronounced upon it, will dispose of this case. The testator, in the third clause of his will, after the death of his wife, devised to the plaintiffs, as trustees for the use of his daughter, Mary Ann Emanuel, “the following tracts of land, one tract .where Mr. Emanuel now lives, and the lower half of a tract, lying between Herendenes Prong, and Crooked Creek, next to Mr. Crossland’s land, (the sawing timber excepted.”) Is this exception good'? If it is, the plaintiffs-are not entitled to recover. For the defendant cut none other, than the sawing-timber, in which the plaintiffs would, in that event, have no interest. I propose to examine this question, with the aid of such lights, as authority may give. For it is one of strict law ; and if the exception be consistent with it, no one can say it is contrary to the intent of the testator. His words plainly show, that he did not intend to devise “ the sawing timber.” To begin with Lord Coke, Co. Litt, 47, *a,*it will be found, that after speaking of a reservation, he says, “and note a diversity, between an exception, (which is ever of part of the thing granted, and of a thing in *esse,)*for which *ex capis,*salvo, *poster,*and the like be apt words; and a reservation, which is always, of a thing not in esse, but newly created, or reserved out of the land or tenement. *42*Poterii enim quis rem dare et partim rei*retiñere, *vel partint de pertinentiis et ilia pars quam retinet semper cum eo est et semper fait.*But out of a general, a part may be excepted, as out of a manor, an acre, *ex verbo generali aliquid ex-cipitur*and not a part of a certainty, as out of twenty acres, one. “This quotation, in its quaint English and Latin, is not exactly clear, at first view. But the meaning is, when there is a conveyance, , by general words, covering an entire whole, made up of such quantities, or things as may be separable, in such a case, an exception of a part is good, and does not pass under general words. It would,-however, be different, where the words defined the precise quantity conveyed, as 20 acres ; in such a case, an exception of one acre, being inconsistent with the previous grant, could not be allowed. Apply the law, thus explained, to this case, and it is plain, the exception is good. For the deviséis of-two tracts of land, by ' general words, except the sawing timber. The devise of the land, would, unless restricted, carry timber standing upon the land. Yet it is but a part of the land, which the testator might have severed from it, or sold, to another, and being, therefore, a separable part, it might be excepted. But it is unnecessary to follow up this matter, through the various authorities, to which reference might be made. The substance of them all, will be found in Preston’s edition, of Sheppard’s Touchstone, marg. page, 78. 1st. vol. In that authority, the following passages are found. “And if one grant land, excepting the timber trees thereupon, or excepting the trees thereupon; or if a man' sell a wood, excepting twenty of the best oaks, and show which, in certain, (or to be taken at his election, or by assignment of the grantee;) these are good exceptions.”' “So, if one have a manor, wherein is a wood, called the great wood, and he grant his manor, excepting all the woods and under-woods, that grow in the great wood, and all the trees that grow elsewhere, this is a good exception.” These sentences-shew plainly, that an exception of timber trees is good, provided it be sufficiently definite, to ascertain what was meant. The only objection, which could be urged to the exception under the will before us, wmuld be, that the words “sawing timber,” did not define, sufficiently, the timber in*43tended to be exeepted. But tliere can be no force in that objection, when it is conceded, as it is by the report, that none but timber, of the charactér described in the will, was cut. Independent, however, of this, the terms “ sawing timber,” are of as certain meaning, as “ timber trees” in England, or “ rail timber” in this State. They mean such timber, as is proper to be sawed into boards and scantlin. In the pine region, it- would be confined to pine timber. In oak and hickory land, it would embrace all the other varieties, which are sawed and used in boards, or scantlin.

The motion for a non-suit is granted.

JOHN B. O’NEALL.

We concur. J. S. Richardson, Josiah J. Evans, B. J. Earle, A. P. Butler, D. L. Wardlaw.

*Abstract from, the icitt of Wm. Pledger.*

1st. All the real and personal estate, given to widow for life.

2nd. A tract of land, to Wm. E. Pledger, and negroes.

3d. To John Terrel, Josiah J. Evans, James Forness, James Irby, and W. E. Pled-ger, the tract of land, whereon Emanuel lives, (die sawing timber excepted,) and eight negroes; “in trust, nevertheless, to permit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, without the control or interference of her husband, during the term of her natural life, and after her death, to convey the same to the heirs of her body. But should my said daughter die, leaving no heirs of her body, surviving her, then I give the said above lands and negroes, to the said (trustees,) to permit my son, Philip Williams Pledger, to use, occupy, and enjoy the same, during his natural life, and after his death, to convey the same to the heirs of his body.”

4th. Another tract of land and negroes, to same trustees, for Caroline Williams, with limitation similar to the above, with a devise over to Mrs. Emanuel, to hold by her, as in the 3rd clause.

5th. To same trustees, “all my land, which I have not herein-before disposed of,” and 23 negroes, “to permit my son, Philip Williams Pledger, to use and enjoy the same, during his natural lité, and after his death, to convey the same to the heirs of his body. But should he die, without any such heirs, then the said trustees are to divide the same, equally, amongst my surviving children, the issue of any deceased child, talcing the share of any of my children, who may be then dead. Blit the shares of my daughters, Mary Ann and Caroline, are to be subject to the same trusts and limitations over, as the estate, the use of which is herein before given to them. This clause is, however, intended to prevent my son, Philip, from wasting the property. Therefore, should he prove to be industrious and frugal, I do, hereby, authorize and empower the said trustees, or a majority of them, should they think it prudent to do so, to convey the property herein before described, to him absolute, whenever “he shall be married, and have a child or children,” and in case both my daughters, Mary Ann and Caroline, should die without leaving any children surviving them, then I give the estate, herein before left to their use, to such of my other children, as may be then living, or their heirs.

*446th. Elizabeth Pledger, Ex’rx. during life, and afterwards, the trustees.

Elizabeth Pledger, qualified as Ex’rx. After her death, no one else has qualified. I certify, that the foregoing is a correct abstract of the will, ofWm. Pledger.

JOS. DAVID.

April 30th, 1841.

*Ordinary, M.*D.