#### Daniel A. White, Judge, &c. *versus*Isaac Woodberry Junior.

Devise of “ my real and personal estate unto L., his executors and administrators, upon trust to pay the income to my son during his life, and after his decease the same to descend to his legal heirs; and if by. reason of sickness he shall be unable to g»* a support for himself, the trustee shnJi and may advance to him, from time to time, rrom the personal estate, such sums over and above the income, as the trustee may deem proper.” o *Held>*that the son took only an equitable interest during his life, with a contingent remainder in the legal estate to those who should be his heirs at the time of his death, the trust then becoming extinct.

Where a person interested has notice and is present at the settlement of a trustee’s account in the probate court, he cannot open this settlement in an action on the trustee’s probate bond, in order to correct errors in previous accounts which were settled without notice to him.

This was an action upon a bond given to the plaintiff as judge' of probate, by the defendant as the trustee under the will of William Pousland.

The parties stated a case.

*139William Pousland made his last will, which was duly proved and allowed, containing the following clause:—“ I give, devise and bequeath one third part of my real and personal estate unto Nathaniel Lamson, of &c. his executors and administrators, upon trust, that he the said Nathaniel Lamson, his executors or administrators, shall and do pay the income of said real estate and the interest of said personal estate, to my son Joseph Pousland during his life ; and after his decease the-same to descend to his legal heirs. My will further is, that if my said son shall, by reason of sickness or incapacity, be unaable to get a support for himself or family, in that case the said Nathaniel Lamson, trustee as aforesaid, his executors or administrators, shall and may advance him, my said son, from time to time, from the personal estate, such sum or sums of money, over and above the income of the part devised as aforesaid, as he or they may deem proper.” On the 19th of November, 1822, Woodberry was duly appointed trustee under the will.

Joseph Pousland was a mariner. He had no family to maintain, and was never married. He went to sea in June 1822, and never returned. He died in 1824, but his death was not known here until 1826. He made his will, which has been duly proved and allowed Woodberry has paid the interest and income of the estate to Abigail Pousland, (who had a power of attorney from Joseph to receive the same,) and likewise paid debts of Joseph, as appears by accounts settled by Woodberry in the probate court. Abigail Pousland has demanded, under the will of Joseph, all his personal property; and W. D. Crossfield and Hannah his wife, have demanded a share of the same ; Hannah being a sister of Joseph Pousland, and she and Ruth Pousland being his heirs at law.

W. D. Crossfield was present at the exhibition and examination of the last probate account of Woodberry, settled in July 1827. Notice of the settlement of the other accounts was given only to Abigail Pousland, as attorney of Joseph. In these accounts Woodberry had allowance of sums paid to creditors of Joseph, and to Abigail Pousland, subsequently to the death of Joseph.

*140The case was argued in writing by Saltonstall, for the plain-an(^ *Kimball,*for the defendant.

Parker C. J.

drew up the opinion of the Court. What estate did Joseph Pousland take under the will of his father, William Pousland ?

The legal estate was very clearly devised to Lamson in trust; Joseph became *cestui que trust*for his life only. There was then created by the will a contingent remainder in. those who should be the legal heirs of Joseph at the time of his death. The phrase, “ after his decease the same to descend to his legal heirs,” has reference to the estate itself, for the trust was not to continue longer than the life of Joseph. It is therefore a trust estate in Lamson, during the life of Joseph, with a remainder after his decease to those who should be then his heirs.

This is the construction of the devise without recurring to the statute of 1791, *c.*61, § 3.

But even if this were to be construed a fee simple in Joseph according to the rule in Shelley’s case, there seems to be no reason why the above-mentioned statute does not apply to it. It is said that the statute has relation only to legal estates, and this being an equitable interest only, devised to Joseph for life, and at his death to his legal heirs, by virtue of that rule it became an equitable fee simple and so was devisable by him. No authority is cited by which a distinction is established between legal and equitable estates, and there seems to be no' good reason for such a distinction. It is mere matter of construction founded on the supposed intent of the testator. This construction is settled by *Shelley,s*case one way, and by our statute another. In the case of *Newhall*v. *Wheeler,*7 Mass. R. 189, it is true, a devise in trust for Hunt during his life and then to his heirs, was held to create an equitable fee simple in Hunt, which he could devise. The operation of the statute does not seem to have been considered by the Court, but there is a strong distinction between that case and this. In that, the land is devised to the selectmen to the use of Hunt during his life, and after his decease, if any of the premises should remain, to Hunt’s heirs forever. In the case before us the devise to Lamson is in strict trust, the income tr be paid *141over to the *cestui que trust*during his natural life, and at his death the same, that is, the estate, is to descend to his legal heirs. There was nothing vested in Joseph Pousland but the right to the income and profits of the real estate, and the interest of the personal, with a right to such of the capital as the trustee should deem necessary.1

In regard to the accounts rendered by the defendant, of his disbursements out of this fund, it is proper matter for inquiry in the probate office, where the accounts have been settled and allowed. That settlement cannot be overhauled in this action on the probate bond, as the party, for whose benefit this suit is brought, had notice and was present at the settlement of the last account.

*Defendant defaulted.*

1

 See *Venables*v *Morris, 7*T. R. 342,438; 3 Bro. Parl. Cas 113; 4 Cruise’s Dig. 260, 261.