#### *B. M. Porter, adm'r. of Edmund Williams, vs. John M. Doby, executor, et al.*

Testator bequeathed as follows. “I will and desire that” my negroes and other personalty “he placed in the hands of J. D. upon trust and condition that he apply the proceeds of the negroes to the maintenance and support of my son Edmund and daughter Susannah, during their natural lives ; and after the death of the said Edmund, I will and bequeath all the before mentioned estate to his heirs forever. Should my daughter Susan-nah survive my son Edmund, I will and desire my friend J. D,, and so will, that he keep in his hands a sufficiency to support said daughter comfortably •during her life, and that the balance in his hands be disposed of as before mentioned. *Also*should any thing remain in his hands, at the death of Susannah, I will and desire that the same be given to the heirs of Edmund forever.” *Held,*that, on the death of Edmund, the property vested in his heirs as purchasers.

Executory trusts are exempted from the operation of the rule in *Shelley's*ease.

The test of an executory trust is that the trustee has some duty to perform, for the performance of which it is necessary that the title be regarded as abiding in him.

Where a sealed note was found among the papers of the payee after his death, with the seal carefully cut out, leaving a mere filament by which it was allowed to remain attached, to show what had been the character of •the instrument; held, that the destruction of the seal must be attributed to the payee, and that such destruction vitiated the instrument.

*Before*Johnston, Oh. *at Lancaster,*

*July,*1843.

The bill in this case was filed for the recovery of the amount •of the note mentioned in the Chancellor’s decree, and the property specified in the following clause of the will of George Williams, deceased, viz; “I will and desire that the plantation whereon 1 now reside; also my negro woman Rose, my negro woman Pauline and her child Mariah, and all their future increase ; also my negro men George, Charles and Washington; also my household and kitchen furniture of every kind and description ; also my horses, cattle, hogs and every kind of stock that I have; also my road waggon and harness, be placed, immediately after my *50decease, in the hands of John M. Doby, upon trust and condition, however, that he have no power to sell or dispose of the same unless it should be for an advantage, and further trust and condition that he apply the proceeds of the plantation negroes be-forernentioned to the maintainance and support of my son Edmund and daughter Susannah Williams, during their natural lives ; and after the death of the said Edmund, I will and bequeath'all the beforementioned estate to his heirs forever. Should my daughter Susannah survive my son Edmund, I will and desire my friend John M. Doby, and so will, that he beep in his hands a sufficiency to support said daughter comfortably during her life, and that the balance in his hands be disposed of as before mentioned. Also, should any thing remain in his hands' at the death of Susannah, I will and desire that the same be given to the heirs of Edmund Williams forever.”

Susannah survived Edmund, but had died before the trial of the case.

The decree of his Honor, the Chancellor, is as follows:

The case is stated in the pleadings and in my notes of testimony. The press of business prevents my stating it at length; I therefore, refer to the pleadings and evidence for a clear statement.

The first part relates to the claim made under the will of George Williams; I do not think there is any doubt upon this point. The plain intention of the will was to secure a main-tainance and support to Edmund and Susannah, during their lives out of the “proceeds” of the property. The property itself is not given to them or either of them, but vested in the trustee, who is directed to apply the proceeds to the purpose indicated. This does not even give the “proceeds” to these *cestuy que trusts,*but only so much as may be necessary to their support.— The trustee has a duty to perform ; which prevents the use, even as to the lands from being executed in the *cestuy que use.*Then at the death of Edmund the property is vested in his heirs as purchasers ; subject to the support of Susannah, or rather a reservation in her favor is first to be made and the rest is vested in Edmund’s heirs.

With respect to the sealed note there is as little doubt in my mind. It is dated in 1832 ; and there is proof enough of a consideration to entitle plaintiff to a recovery, upon the foot of it, if the circumstances did not discredit it.

The obligor died in 1835, but Edmund raised no claim, so far *51as we know from that time till his death, although he was aware that the executor was disposing of and did dispose of the estate without knowledge of or reference to this obligation.

Then upon the death of Edmund the note is found among his papers with the seal detached.

We ¿ave two hypothesis ; and upon either of them the obligation is destroyed. If we suppose that the note had got back into the possession of the obligor, and was taken possession of by Edmund, the obligee, who lived with him at his death ; there is no doubt the obligation was gone, especially as the seal was cut off.

If on the other hand, we assume that Edmund had never parted from the possession, it appears to me the obligation is equally destroyed; any material alteration of a written paper will be attributed to him who has the possession unless he accounts for it, and such alteration, unless explained, vitiates the paper.

The alteration will not be assumed to be accidental without proof. But in this case, the alteration was evidently not accidental. The seal was carefully cutout, leaving a mere filament by which it was allowed to remain attached, to show what had been the character of the instrument. The seal was as effectually destroyed as if it had been crossed or cancelled.

Then the silence of Edmund in relation to the note during his whole life, notwithstanding the administration of the estate by the executor, according to the provisions of the will, is strong confirmation of the idea that he regarded the instrument as defunct.

It is decreed that the bill be dismissed with costs: to be allowed the plaintiff out of his intestate’s estate.

The complainant appealed, on the following grounds:

1. Because it is respectfully submitted that by the terms of testator’s will an absolute estate in the property mentioned in the will was conveyed to the intestate of complainant, and the Chancellor should have so decreed.

2. Because complainant was entitled to recover the amount of the note mentioned in the bill, there being no evidence to invalidate it.

Wright, for the appellant.

*Clinton,*contra.

*Curia, per*JohnstoN, Cx-i.

The second ground of appeal, in relation to the sealed note, has not been pressed here : and the *52court is perfectly satisfied of the correctness of the circuit decree upon that point of the case.

The first ¿¡round of appeal, which was pressed and argued, hy the appellant’s counsel, with zeal and ingenuity, is equally untenable.

It is insisted, that Edmund took an absolute property in the personalty bequeathed by his father, under the rule in *Shelley’s*case, (1 Co. 104.)

The rule is stated in that case to be, that, “when the ancestor, by any gift or conveyance, takes an estate of freehold, and, in the same gift or conveyance, an estate is limited, either me-diately or immediately, to his heirs, in fee or in tail, *the heirs*are words of limitation of the estate and not words of purchase.” It has been supposed to be more fully and accurately defined by Mr. Preston in words to the following efiect: that, “when a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and, in the same instrument, there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 1 Preston on Estates, cited 4 Kent Com. 215. If this rule can be applied to the will under consideration, *the*plaintiff will be entitled to a decree for the personal pioperty of the testator.

There is no doubt that where, by any instrument, an effort is made “to give the property to the ancestor for life only, and yet extend the enjoyment of it to his heirs, in the same manner, and to the same extent, precisely, as if they took by hereditary succession,” they shall not take by purchase, but by inheritance : and “the freehold of the ancestor shall attract to him the estate imparted by the limitation to his heirs.” 4 Kent, 217. And, generally, wherever the question occurs in relation to a legal interest, or in relation to an equitable interest, not executory in its nature, the rule will be applied.

“The rule,” says Mr. Kent, (4 Kent, 218,) “as to legal estates, has hada prescriptive and uncontrollable authority; but the Courts of Equity have not considered themselves bound to an implicit observance of it in respect to limitations which do not include or carry the legal estate.” They have generally yielded to the obligation of the rule, not only in cases of legal interests, but, also, in cases of executed trusts.

*53There is, indeed, the great case of *Bagshaw vs. Spencer,*1 Ves. Sr. 143, decided in opposition to the previous case of *Coulson vs.*Coulson, 2 Atk. 246, 570; Str. 1125, in which Lord Hardwicke endeavored, by an elaborate examination of cases, to establish a distinction between legal estates and trusts of every description ; and to appropriate the rule in Shelley’s case exclusively to the former. But this decision, after being much questioned, was overruled in *Wright vs.*Pearson, 1 Eden, 119, and *Jones vs.*Morgan, 1 Bro. C. C. 206; and the doctrine seems to be well settled, that executory trusts alone are, as a general class, exempted from the operation of the rule. There are, to be sure, other exeptions to its operation not necessary to be noticed here : but this one is sufficient for the decision of this case.

The test of an executory trust is, that the trustee has some duty to perform, for the performance of which, it is necessary that the title be regarded as abiding in him. Here, nothing can be plainer than that the trustee could not perform the trusts conferred on him without retaining the title and the property. His trust was to maintain Edmund and Susanah during their joint lives, and Susannah, if she should be the survivor, out of the profits and income of the property. She actually survived ; and it was, therefore, impossible, that the trust should have been executed at any time during Edmund’s life. The point is too plain for further discussion.

It is ordered that the decree be affirmed, and the appeal dismissed.

Johnson and Dunkin, CC. concurred.