Carney v. Kain

40 W. Va. 758 | W. Va. | 1895

Holt, President :

On appeal taken by Mary Jane Carney and others, plaintiffs, from a final decree of the Circuit Court of Ohio county, entered on the 9th day of June, 1894, in favor of John J. Kain and others, trustees, defendants, dismissing the bill without reservation.

The suit involves the will of Philip Keilly, deceased, late of the city of Wheeling, W. Va., especially the residuary fund created by the will, and whether the plaintiffs, Mary Jane Carney, the daughter of the testator, and the children ■of his son, John Reilly, deceased, are entitled to have that fund now turned over to them by the trustees under the will.

Philip Reilly, being tbe owner of real and personal property of the value of some one hundred and fifty thousand dollars, departed this life on the 24th day of June, 1SG6, leaving the will which gives rise to this controversy. On the 10th day of July, 3866, on motion of R. V. Whelan, the executor, the will was duly proved and admitted to record, and the executor gave bond, qualified and entered upon the discharge of his duties.

On two former occasions this will has been before this-Court, where it will be found set out with sufficient fullness-to determine its meaning and effect: (1) in the case of Whelan v. Reilly (1869) 3 W. Va. 597, where this Court, reversing the court below, held, inter alia, the will to be valid. (2) In the case of Whelan v. Reilly, 5 W. Va. 356, decided in 1872, Avliere the Court, reversing the court below again, held the language of the fourteenth clause to be clear, the meaning of the testator plain, the will valid as not being inconsistent with any rule of law, and that the court had nothing to-do but to see that the same was carried into effect.

Clause No. 1 made provision for the wife, to be taken in-lieu of dower; but she died in the lifetime of the testator,- and there is a residuary clause.

By clause No. 2 he devised and bequeathed all his estate,real and personal, to Richard V. Whelan, Henry Moore, and Charles W. Russell, of the city of Wheeling, as trustees.

By the codicil, Alonzo Loring was substituted as trustee in place of Charles W. Russell. Richard V. Whelan having-died, Josiah F. Updegraff was appointed in his place, he having died, the present trustee, Thomas O’Brien, was, on the-26th day of April, 1876, appointed in his place; and, Henry’ Moore having resigned, John J. Kain was, on the 2d day of' January, 18S0, appointed in his place. All this was duly done in pursuance of clause No. 3, so that the present trustees-are the defendants Alonzo Loring, Thomas O’Brien, and John-J. Kain; Thomas O’Brien being also the executor d. b. n. c.t. a.

By clause No. 4 the trustees were given power (which might always be exercised by a majority) to sell, lease, convey, manage, and dispose of Ms estate, and of every part thereof, and do all other acts in relation thereto', as fully as the testator could have done if in life, except so far as the exercise of such general powers would in any case defeat a particular intention or provision of the will. The trustees still have intact the Marshall county land, of three hundred acres, and the Glen run tract, of about two hundred and eighty acres. All- the other property real and personal, except the one hundred acres devised to the children of his son John Reilly, has been converted into money, and invested as part of the residuary fund.

By clause No. 5 he provided for six of these plaintiffs, ms: the children of his son John, by setting apart for them by metes and bounds one hundred acres of the four hundred acre-tract situated in Marshall county. John is dead, and his children took it in fee simple; but he died after the death of the testator, and his personal representative is not a party to this suit, and he is not a necessary party, for the personal representative of the testator represents the personal fund so far as the children may come to have any interest. Here the will contemplates that the executor shall be subject to the order of the trustees, pay over to them, and in general manage as they direct. In such case the modern doctrine seems to be that the trustees deal directly with the beneficiaries, not only in paying legacies, but in making distribution of any part which goes under the statute of distribution.

By clause No. 0 he made a similar devise of the remaining three hundred acres of the Marshall county tract, to- be held in trust in fee simple for the children of his son William. But William died m the lifetime of his father, never having married, and leaving no child or other descendant; and this executory limitation in trust to- the children of William, who never came into being, became incapable of taking effect, and passed into the residuary fund, by the express language of the will as well as by operation of our statute of wills (Code Va. 1860, p. 574, c. 122, ss. 11, 14). And as the will, both as to real and personal estate, speaks and takes effect as if it had been executed immediately before the death of the testator, the second clause and twelfth clause of the will operate to make it a part of the residuary fund, which was set aside to be held or invested in good and safe real estate securities.

The law is well settled that where a will expressly or by necessary implication directs land to be turned into money, and such conversion is necessary to carry out the special object of creating the fund, or the general scheme of distribution, equity will treat that which is directed to be done as already done, and treat the land, for purposes of devolution and the transfer of title, as already-converted into personal estate.

The personal representative is the proper representative of the personal estate, and is a proper and generally a necessary party in a suit in which the court passes upon the construction of a will affecting a residuary fund not thereby disposed of. But this question of equitable conversion, if any, is not now deemed important, (1) because the trustees take all the property absolutely as active managing trustees, whose trust is to continue until all its feasible objects and purposes shall be accomplished; and (2) because, as to the property in question, regarded as .that of the testator, it is agreed that defendant O’Brien is before the court both as executor d. b. n. c. t. a. and as trustee, and the limitations of an equitable estate created out of land and money are governed for almost all practical purposes by the same rules. Upon the doctrine of equitable conversion, see Ackroyd v. Smithson, 1 Brown Ch. 503; Attorney General v. Hubbuck, 13 Q. B. Div. 275, 289; and on equitable conversion by trustees or court, see Steed v. Preece, L. R. 18 Eq. 192; Id. Brett Lead. Cas. Mod. Eq. 61, notes.

By clause No. 7 the testator made an executory, equitable limitation in fee of the home farm, called the “Glen Run Tract,” of about two hundred and eighty acres, to the unborn child or children of their descendants and the survivor whom his son Philip should leave at his death. After the death of the testator, and therefore after the will had ceased to be ambulatory, the son Philip died, unmarried and intestate, leaving no child or other descendants, so far as appears by this record. This executory equitable devise failing to take effect tbe G-len run land, by virtue of tbe twelfth clause, passed into and became a part of tbe residuary fund. His next of kin are parties, but not bis personal representative. This clause throws some light on tbe present question of partial intestacy, and cbe effect of section 13, chapter 77, Code, W. Va. p. 660 (Ed. 1891); section 14, chapter 122, Code Va. (Ed. 3860) p. 574. See Hoke v. Hoke (1878) 12 W. Va. 427, 465. Whether he ever claimed or attempted to sell or transfer any interest in this fund as coming to him by intestacy or otherwise does not appear in these pleadings.

By clause Ho. 8 it was provided that clauses 5, 6 and 7 should be so construed that if any one child of any one of bis said three sons should attain the age of twenty one years, and before that time another child of the same son should have died, leaving a descendant, the descendant of the deceased should have the share which the deceased would have had if living. This has a bearing here as helping to show the general plan or scheme of the will.

By clause No. 9 he directs the trustees to sell all the rest of his real estate as soon as they should find it expedient, and convert all his personal estate into money. Both have been done, and the money has been invested as belonging to the residuary fund, appearing to amount on the 31st day of December, 1892, to the sum of forty one thousand nine hundred and fifteen dollars and sixty one cents, subject to certain deductions for compensation to the trustees and their agents, and perhaps for other things.

By clause No. 10 the trustees were authorized to sell at their discretion, to be exercised within two years, the Marshall county land, of three hundred acres, putting in its place in clause No. 6, his farm lying east o'f and near the city of Wheeling. But this substitution was not made-, but the farm near Wheeling was sold.

Clause No. 11 provided for the investing of any money arising under the will to the amount of ten thousand dollars, to be invested in bonds of the state of Virginia, and to pay the income thereof to his daughter Mary Jane, the plaintiff, during her life, or until she should marry. In 1869 she married Philip Carney, who died on the 9th day of September, 1.874. She Ras remained a widow, Ras never Rad any cRild, and, in tRe course of nature, can Rave none, being sixty five years old. In addition to the income from the ten thousand dollars in Virginia bonds and from the mansion house, etc., of the Rome place, the trustees, from the 3d day of May, 1876, paid her six hundred dollars per year. Afterwards, by decree entered on the 30th day of May, 1884, by the Circuit Court of Ohio county in the chancery cause of Mary Jane Carney v. Alonzo Loriny et al., trustees, said trustees were directed to pay her twenty thousand dollars on or before the first day of July, 1885, and one thousand five hundred dollars per year during her natural life, out of the residuary fund, in lieu of the sum of six hundred dollars per year, the annual payments,theretoforemadetoherbythe trustees; the annuity of one thousand five hundred dollars to commence and be computed from the 1st day of July, 1884, including that day, and to be payable thereafter quarterly in advance. These payments the trustees have so far continued to malee.

Clause Xo. 12 created the residuary fund now composed of the forty one thousand nine hundred and fifteen dollars and sixty one cents, already mentioned, and the two tracts of land, viz. the tract of three hundred acres in Marshall county and the Cien run tract of about two hundred and eighty acres above Wheeling on the Ohio river in Ohio county. This is the fund which plaintiffs claim they have the right to have turned over to them by the trustees, and pray that it may so be directed, and that it may be distributed between them in the proportions agreed upon and set forth in their bill. This right the defendants, in their answer, deny, alleging that no one has such right until after the death of the plaintiff Mary Jane, when, the objects of the trust having been fully accomplished, it would go, in equity, to those who might then be the heirs at law and distributees of the testator.

Clause Xo. 13 directed that the income from the residuary fund should become part of the principal until the death of the last survivor of his three children, William, Philip and Mary Jane, unless the trustees should think proper to apply any part of such income to the support and maintenance of any or all of Ms said three children and families, but such application should be made only according to the uncontrolled discretion of the trustees. It does not appear, nor is it now necessary to ascertain, what if any, of such income, etc,., from the real estate, remains on hand. We have already seen that William died in the lifetime of the testator; Philip died soon after the death of his father; and that Mary Jane, the sole survivor, was paid twenty thousand dollars on the 1st day of July, 1885, and since that time has been receiving quarterly the sum of one thousand five hundred dollars per year.

Clauses Nos. 14 and 19 read as follows: “Fourteenthly. After the death of the last survivor of my three children, ■William, Philip, and Mary Jane, the said residuary fund shall be held in trust for the children and other descendants then living of my said three last named children, or such of them as may have a descendant then living; and all such descendants shall have equal shares, as among themselves,, without regard to any difference in degrees of relationship or descent.” “Ninefeenthly. Notwithstanding anything hereinbefore contained, I desire to confer on the trustees power to encourage my three children William, Philip, and Mary Jane to conduct themselves well through life, and with that view do hereb3r authorize the trustees, whenever and as often as they shall think the same deserved by the good conduct of my said last named three children, or either of them,'to advance and give to them, or either of them, any part or parts of the said residuary fund, whether principal or interest, in money or otherwise, without being accountable for the same to any person whomsoever, the power hereby given to dispose of the said residuary fund to or among my said three last named children, or either of them, being limited and controlled only by the discretion and judgment of the trustees.”

Clause No-. 15 gives to each son fifty dollars in discharge off any claims against the estate.

Clause No. 16 gives the trustees power to fulfill all the testator’s contracts remaining unfulfilled at his death.

Clause No. 17 provides that the trustees shall not be responsible for the acts or omissions of each other, and shall respectively receive a reasonable compensation for acting as such trustees.

Clause No. 18 provides that the phrase “the trustees” shall be held to signify the. persons who at the time referred to shall be the actual trustees under the second or third clause of the will, and that the act, eto., of a majority shall be effective and binding.

Clause No. 20 refers to and provides for the execution of a deed of trust which was contemplated in aid of the trusts created by the will. I lay no great stress upon this clause, but it may have some bearing in the construction of the settlement created by the will as tending to show that he did not regard it as perfected, or in all respects, perhaps, completely declared, so that it might to some; extent be regarded as an executory instrument, for in construing executory trusts in the sense of trusts not perfected or completely declared, the court exercises a large authority in subordinating the language to the intent. L. R. 4 H. L. 543. See Lloyd v. Brooks, 34 Md. 27; Swan v. Frick, Id. 139. For distinction betweenexecutedand executory trusts, see opinion of Mitchell, J., in Gaylord v. City of Lafayette (1888) 115 Ind. 423, 429 (17 N. E. Rep. 899); 27 Am. & Eng. Enc. Law, p. 12, note 1. But this executory clause is evidently confined to its own subject-matter and can, at least, have no direct apparent reference whatever to the residuary fund.

Clause No. 21 appointed Charles W. Russell executor, who never qualified.

Clause No. 22 authorized and required all questions of doubt or controversy arising under this will to be determined, adjudged and finally decided by the trustees. Counsel for defendants claims that this provision is valid, and that in this case, in view of the uncontrolled power and discretion in the premises vested in the trustees, effect should be given it. How far such a clause may be valid, and to what extent it maj be given a controlling effect in the view here taken, can not arise, and is not discussed.

Clause No. 23 provides that no husband his daughter Mary Jane might have should have any title to, interest in, or control over any property which might come to her under the will, or which she might receive through any power given the trustees. She married, as we have seen, and her husband is dead. The effeci of the codicil has already been stated.

Plaintiffs claim that inasmuch as there is now no possibility of Mary Jane, the sole survivor, having children, or leaving any descendant — a fact conceded by defendants in their answer — they have a ¡ ight to have this residuary fund turned over to them, and distributed, and this upon the principle acted upon in the cases of Macomb v. Miller, 9 Paige 265; Male v. Williams, 48 N. J. Eq. 33, (21 Atl. 854); and In re Brown’s Trust L. R. 16 Eq. 239.

There is no controversy about the facts, but the defendants the trustees deny and resist such right, setting up in their answer (1) that their trust is an active and continuing trust, the purposes of which have not been accomplished, and can not be until after the death of Mrs. Oarnev, one of the plaintiffs; (2) because it will go to the heirs, etc., of the testator living at her death, and who they may be can not now be known. The same reasons, so obvious, which prompted the giving of such full management and control of the fund to the trustees, in their opinion, still exist, and that it is in no way made manifest that such intention of the testator should not prevail. It was his to give, and therefore his to say when and how it should be given.' That such intention that the trust should outlast the life of the longest liver is not ambiguous, nor are the trusts, so far as declared, in any respect ill defined, but they are expressed as .clearly and made as certain as the nature of the subject-matter permits.

The scheme of the will as a whole, and the scope and tenor of each and every disposing clause, as well as the one here brought in question, show with a clearness too plain to admit of an j reasonable doubt the intention of the testator to be that his children William, Philip, and Mary Jane were to take, as matter of right, no part whatever of the inheritance of the residuary fund, but that, as a reward of good conduct, and an incentive to its continuance — by that in good part no doubt meaning a shown capacity and disposition of prudent management — the trustees were authorized, by express words set forth in the nineteenth clause, to advance and give to them, or to either of them, any part or all of the residuary fund, principal or interest, in money or otherwise, without accountability to any person whomsoever, and limited and controlled solely by their own discretion and judgment; so that, in the language of the Court in the case of Whelan v. Reilly, 5 W. Va. 356—the same will and the same parties, by privity of representation — “all the interest which William, Philip, and Mary Jane could have in the residuary fund was dependent upon the contingency of the uncontrolled discretion of the trustees.” No good reason is made manifest for faking out of the hands of the trustees the management of the fund while Mary Jane is in life, or for breaking in upon the general scheme of the testator, and frustrating, in whole or in part, his designs, by taking aivay from them the right to judge; and to control their discretion, and to compel them to give a child’s part now to one who was not to take, as matter of light, any part of the inheritance in any event, or at any time, under the will. So far as distributing the fund now, in the lifetime of Mrs. Carney is concerned, the cases of Macomb v. Miller, 9 Paige 265; Male v. Williams, 48 N. J. Eq. 33 (21 Atl. 854); In re Brown’s Trust, L. R. 16 Eq. 239; and like cases — are no answer, for here the trust is active, and for the reasons given is made to continue at least, until after the death of Mrs. Carney. But if it is a case of partial intestacy, as plaintiffs claim, then they may have a present right, subject to the power of appointment vested in the trustees.

It may be proper to say in the beginning that the common-law of England, including- statutes of a general nature in modification thereof, and giving writs remedial and judicial, in aid of the common-law passed prior to the fourth year of the reign of James I. (1607) continues in force within this state so far as it is not repugnant to the principles of the constitutions of the state and of the United States, and laws made in pursuance thereof, and except in those respects wherein it was altered by the general assembly of Virginia before tbe 20tb day o£ June, 1863, or bas been altered by tlie legislature of this state (see Code [Ed. 1891] article VIII, section 21, Constitution p. 41; and chapter 13, ss. 5, 6, p. 122) and where the common-law, by change of time and place, could hare no application. The modifications made by statute bearing upon the questions here invoiced are contained in chapter 71 of the Code of West Virginia, in chapter 116 of the Code of Virginia of 1860; which, among other things, makes the conveyance of real estate lie in grant as well as in livery, and dispenses with the word “heirs,” etc., or other words of. limitation, to pass a fee simple. Our statute of wills, found in chapter 77 of the Code of West Virginia and chapter 122 of the Code of Virginia of 1860. provides as follows: “Every person not prohibited by the following section may by will dispose of any estate ■to which he is entitled at his death and which if not so disposed of would devolve upon his heirs, personal representatives or next of kin.” Code, W.Va., c. 77, s. 1; Code Va. (1860) c. 122. Our statute of descents and distributions is found in chapter 78, Code, W. Va., and chapter 123, Code Va. 1S60. It provides that when an;y person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred, to the classes and in the order named. Section 9 provides that when any person shall die intestate as to his personal estate, or any part thereof, the surplus, after payment of personal expenses, charges of administration, and debts, shall be distributed to and among the same persons, and in the same proportion, to whom and in w-hicli real estate is directed to descend, with certain specified exceptions. Section 24a, chapter 71, relates to the sale and conveyance of lands and estates therein conveyed in trust, with contingent interest in favor of persons unborn. Section 14 of chapter 122 of Code Va. 1849 (Ed. 1860) p. 574, is the one which may in part bear upon this case. It differs from section 13 of chapter 77 of Code of West Virginia (Ed. 1891) p. 660. See Frazier v. Frazier’s Ex’rs (1831) 2 Leigh 642. The only statute of uses whichliaseverbeenenactedinVirginaorin this state is found in section 14 of chapter 71 of the Code of West Virginia, p. 1>34 (Ed. 1891) and in section 14, chapter 116, of the Code of Virginia of 1849 (Ed. 1860) p. 560. This provision has been at different times re-enacted, and as a separate section it jet remains in force. Ocheltree v. McClung (1874) 7 W. Va. 232, 238. See 1 Lomax, Dig. p. 219, side page 188. It will be noticed that it does not speak of wills. In Bass v. Scott (1830) 2 Leigh 356, it is said our statute does not execute uses created by will, we having no general statute of uses. (Cabell, J., pp. 358, 359). It is true that a court of equity may, on its own original principles, direct a trustee to convey the legal title to the cestui que trust whenever it may be proper that that shall be done, as in the case of a naked use; but this poAver is to be exercised according to a sound discretion, and the court ought to refuse to exercise it when, as in the present case, it was manifestly the intention of the testator that the management of the property should be at the discretion of the trustees, and not of the cestui que trust. See note of reporter, page 359. The revisers of the Code of 1849, with this case and the reporter’s note before them, leave the section as it was/saying: “In the case of trusts created by will, it is so often the intention of the testator that the management of the property should be at the discretion of the trustees, and not of the cestui que trust, that there would be some difficulty in enacting a better rule than is laid down by the court in the case referred to.” Revisers’ Report, Code 1849, p. 605. The reporter A\ho appended the note was Benjamin-Watkins Leigh, who had so learnedly and laboriously prepared the revisal of 1819. See preface to Code of 1819. Section 5 of chapter 71 reads: “Any interest or claim to real estate may be disposed of by deed or will.” Up to the re-Adsal of 1849 we had an act against the sale of pretensed titles, to be found in the Code of 1819, p. 375, taken from 32 Hen. VIII., c. 9, ss. 2, 3 (1541). In th revisal of 1849 not only Avas omittedtheoldact against the sale of pretense titles, but, to make the law clear, section 5 of chapter 71 was enacted. See Report of Revisers of Code of 1849, p. 602. “The common-laAv idea of a partial as distinguished from an absolute, alienation of the ownership of land, opens the distinction betwen original estates and derivative estates. The fact that several successive estates may be simultaneously derived out of one original, whereby it comes to pass that a derivative estate may be an estate not in possession, leads tn the distinction between remainders and reversions. The fact that estates may be so limited as to take effect only upon the happening of a contingency suggests the distinction between vested estates and contingent estates, which last mentioned estates can only be remainders, because estates in possession and reversion are necessarily vested.” Challis, Real Prop. c. 9, p. 49.

Personal property, alihough originally regarded, from the civil law standpoint of original absolute ownership, not par-tible in the common-law sense of the derivative ownership' ofland, has been gradually assimilated to some extent to the common-law idea of original and derivative ownership of real estate. And this drawing together is due in part to the fact that the ingenuity of conveyancers, operating upon the statute of wills and the statute of uses, and in disregard of the doctrine of abeyance of the freehold, has devised other prospective possibilities unknown to the common-law, as interests to arise at a future time, which are- not estates, but which will be estates when they arise, and makes it necessary to distinguish executory interests from contingent remainders. See Id. And this view of giving personal property some of the qualities of real property, and real estate some of the qualities of personal property, is largely due to- the creation of equitable estates by the conveyance and transfer of both kinds of the legal ownership to- trustees in trust for the cestuis que trustent, accompanied with a power of appointment vested in the trustees, the equitable executory interests-being created by executory devise, etc. In this way the term “vested” has come to bo applied with almost the same meaning in reference to the ownership of both real and personal property, especially when applied to future limitations of equitable estates. The ownership-, original or derivative,may be said to be vested when it has an abiding place, temporary or permanent, in an ascertained owner — vested in interest, when he has the fixed right of future enjoyment; also vested in possession when he has the present right of enjoyment. It may be and is used with reference to the question of remoteness. It is also used in the sense of an ownership capable of transmission to another. See Gray. Perp. § 118; Hawk. Wills, 222, 223; Challis Real Prop. p. 56 et seq.; Fearne Cont. Rem. 218. But it is not in all cases the opposite of contingency. Contingent estates may be limited at common-law, and their distinguishing quality of contingency is conferred upon them by the terms of their limitation: (1) By a provision that the specified person shall not take unless .the contingency shall happen; (2) that he shall not take until the happening of a future event; (2) contingent by reason that the limitation is in favor of a person not ascertained, or not yet in being.

Executory interests do not admit of being limited under the rules of the common-law. They owe their whole existence partly to the statute of wills and partly to the statute of uses. The limitations under which they arise are called “executory limitations,” which in wills are executory devises, and in a deed are springing or shifting uses. In all essential characteristics these uses resemble what we now call “equitable estates,” generally called “trusts.” The legal estate in fee simple and absolute ownership vested in the trustee .and the coterminous trust or equitable estate of the ces-tui que trust are regarded as being two separable things, presumed to be united in the holder of the legal ownership, but capable of separation, and having definite characteristics when separated. When separation takes place, the trust confers the right both to take the profits and also to call upon the trustee to make such conveyance and transfers thereof as the equitable owner shall think fit. Challis, Real Prop. p. 309. They follow the law of their creation, but in dealing with them equity generally follows the analogies of the law. Yet their history, the time when, and the chancellors under whom they originated, as well as their characteristic qualities, show that the elementary notion of them was borrowed from the Roman law. This is the accepted doctrine. See 2 Pom. Eq. Jur. § 976; 2 Story Eq. Jur. § 965; 1 Spence Eq. Jur. 439-442; 27 Am. & Eng. Enc. Law 4; Williams Real Prop. (17th Int. Ed.) c. 7, p. 192; Washb. Real Prop. 384; Tied. Real Prop. § 438, 1 Bl. Comm. 19-80; 1 Bl. Comm. (Hammond’s Ed.) Notes Ed. p. 40 et seq. But see 2 Pol. & M. Hist. Eng. Law, 228 et seq. 236; Id. Introduction, p. 31 et seq.

The chief characteristics of equitable executory interests here inyolyed are: (1) They are with us still under the exclusive jurisdiction of courts of equity. (2) The distinction between real and personal property is reduced to a minimum. Personal property may be limited in the main, as though it were real; and real property is cut loose from the ■common-law prohibition of leaving the ownership of the freehold in abeyance; and of creating freehold interests to rise up and commence vn futuro, and shift as a whole from one to another. Hence arises their great plasticity and ease with which they can be molded to meet the most complex scheme of disposing of property. Both are subject to the rule against remoteness. “They arise, when their time comes, as of their own inherent strength. They dei>end not for protection on any prior estates, but, on the contrary, they themselves often put an end to any prior estates which may be subsisting.” Williams, Real Prop. 433.

As to the legal ownership in the trustee (1) it may be a dry, passive trust, a mere resting place for the legal title; (2) or, •as in this case, it ma.y be an active continuing trust, with the duties imposed of active management and control of the property. And a court of equity may direct a trustee to convey the legal title to the cestui que trust whenever by the language of the instrument, or in contemplation of the settlor, such management and control ought to come to an end. But this power of the chancellor is to be exercised according to a sound discretion; and the Court ought to refuse to exercise it when, as in the present case, it was manifestly the intention of the testator that the control and management of the property should remain with the trustees. Bass v. Scott (1830) 2 Leigh 356. Such instruments are frequently, as in this case, accompanied with a power to appoint and to sell and convey. Such uncontrolled discretion of the trustees is not to be interfered with, in the absence of bad faith (Whelan v. Reilly (1872) 5 W. Va. 356; Gisborne v. Gisborne, 2 App. Cas. 300); and here none is charged, or in any way intimated.

The estate taken by the trustees is commensurate with the powers conferred and the purposes intended to be accomplished — in this case a fee simple absolute in fact as well as in name; no matter what period of time, if any, may be set for the ending of the trust. If, however, the trust is a dry one, or limited to await an event such as the death without issue of the beneficiary, and she has passed the age of childbearing childless, as in this case, so that, without harm to -any one, we may look forward and say that for all practical purposes, the event for distribution has come, it may be made. Male v. Williams, 48 N. J. Eq. 33 (21 Atl. 854); Macomb v. Miller, 9 Paige 265; In re Brown’s Trust, L. R. 16 Eq. 239. Anditisdoneorrefused at that time in the exercise of a sound discretion. But, however tire fact of passing the age of childbearing may bear on such a practical question, it has no bearing when we come to determining tire quality and quantity of estates, and ascertaining rights and interests dependent on her actual death leaving no issue. In such cases the law considers that the possibility of issue continues so long as the person lives, no matter how improbable it may be from the great age of the party; for in such cases a possibility of issue is always supposed in law to- exist, unless extinguished oy death. For 'such purpose the possibility of issue is commensurate with life. See Williams, Real Prop. 115; 2 Bl. Comm. 126; Co. Litt. 40a; Litt. Ten. § 34; Jee v. Audley, 1 Cox 324; List v. Rodney (1877) 83 Pa. St. 483, 492. And the unborn devisee of an equitable contingent executory interest in lee simple absolute, limited by a contingency determinable within the rule against remoteness, and the estate limited not contravening such rule, will, as a matter of interpretation in contemplation of law, as a probable possibility, come into .existence and take. For the will, as in this case, must be read and construed as we find it — a fact fixed by the death of the testator — and is to be read not by the light of subsequent events; and, if the unborn devisee does in fact come into existence, as well as in contemplation of law, we can not hold that he will take by purchase under the will as de-visee that of which the testator died intestate. Nor will the law intend that the testator meant to die partially intestate. Gaston, J., in Vanhook v. Vanhook, 1 Dev. & B. Eq. 589, 596.

I have said enough to justify the decree complained of, if, instead of being as it is, a final decree of absolute dismissal on hearing of all the equities and issues presented in the pleadings, it had been a dismissal without prejudice. Being a final unqualified decree presents another question of vital importance, it may be, to the children of John Reilly; cer' tainly to those who may hereafter claim under Mrs. Carney; and that requires us to look further into the matters of law and fact presented by this record. This latter question lias-led to a learned and exhaustive discussion of the nature (1) of the estate in this fund created by the settlor; (2) the characteristics of base fees, qualified fees, fees on condition, conditional fees, and fees determinable, and conditional limitations generally, and the nature and peculiar distinguishing marks of what are called “possibilities of reverter,” and “possibility of rei’ersion,” and their capacity to pass by alienation and descent. For a discussion of this general subject I now refer to Gray Perp. c. 2, § 5 et seq, 236, where this case, when first in this Court, is cited, among others, in the note. Whelan v. Reilly (1869) 3 W. Va. 597, 613; Challis Real Prop. p. 197 et seq.; 19 Am, & Eng. Enc. Law 1035, 1055, notes; Ocheltree v. MoClung (1874) 7 W. Va. 232; Minor. Inst. (2d Ed.) 86, 87; Willion v. Berkley (1652) 1 Plow. 223, 244; Proprietors v. Grant (1855) 3 Gray 142, 148; Purefoy v. Rogers (1681) 2 Saund. pt. 2, pp. 380, 381.

TVhat is the nature of this instrument? The testator gave all his property of every kind, the real estate in fee simple, the personal estate absolutely, as a residuary fund, impressed with individuality, to trustees, with power to do all acts in relation thereto as fully as the testator could do if he were in life; nevertheless in trust to execute the directions therein given, and carry out the purposes thereby declared. It was an active, continuing trust, and required the constant control, care, and management of the trustees until the purposes of its creation had been accomplished. The testator was induced to adopt this mode of disposing of his property: (1) To avoid some of the legal questions which have been so learnedly discussed, among others that mentioned by Black;stone (2 Bl. Comm. 173.) The common-law, if it recognized the equitable estate at all, recognized it only as in coalescence with the legal estate; and, if we keep insisting on the equitable estate being Tested in the heir at law until the unborn beneficiary comes into being, we are shackling the trust with a common-law idea, which it w^s the very purpose of the de-visor to shake off and escape. He intended that the trustees should hold in trust for the unborn devisee, and not for the heirs. Why insist on anything being vested in the heir, who can only take, if at ail, in the after-contingency, so remote and improbable that the testator did not deem it necessary to provide for it at all ? And as to the income in the meantime, the beneficiaries took that under the uncontrolled discretion of the trustees, and not as a matter of right. (2) To render such estate plastic, easily and safely molded to fit future contingencies, and carry out his general scheme of disposing of his property. (3) And, perhaps mainly, to provide for his children a comfortable maintenance and support during life, without subjecting his property to the hazard of being dissipated and wasted by their improvidence, and to put it in the power of the trustees to reward good conduct, and to hold oiit inducements for its continuance. He had unbounded faith in the fidelity of his trustees and in their practical good sense and capacity to control and manage judiciously the property in the interest and to the benefit of the objects of his bounty, who were, as to ultimate ownership, his grandchildren and their issue. His children were to take nothing except under the power of appointment. And the power given the trustees, within the purposes of the trust, “was limited and controlled only by their discretion and judgment.” Whelan v. Reilly (1872) 5 W. Va. 356-357 a case in which the same will came in question between the same parties or their privies.

So far' as this record shows, no one had a right to complain of being stinted, for Mrs. Garney received out and out the sum of twenty thousand dollars at one time, and, in addition, is now receiving an annuity of one thousand five hundred dollars, equal to a six per cent, income from a sum of twenty ñve thousand dollars. But the question remains, did the testator fail to dispose of any part of his ownership, or does the will create a resulting trust in the nature of a possibility of reverter to his heirs at his death, and if so, what is the nature and effect thereof?

First. As to the personal part of the residuary fund, it can not be a conditional fee, changed by the statute de doms into a fee tail, and the latter, by our statute, converted into a fee simple; for the word employed by the statute of entails is “tenement,” and mere personal chattels are not entailable (2 Minor Inst. 78 (88); and so our statute docking entails deals only with estates in land. Code W. Va. c. 71, s. 9; Code Va. 1860, c. 116. This fund, however, created by the will, is given an individuality apart from the portions of the estate which compose it — see In re Kenyon, 17 R.I.149 (20 Atl.294)—and comprises the two unsold tracts of land and forty one thousand dollars odd in money, which also' comprises an uncertain amount of rents and income from- these lands, which amount does not now appear.

Second. There can be no conditional fee in the land, for no estate therein, as has already been seen, is given to the children William, Philip and Mary Jane, either expressly or by any necessary implication; and for a fee conditional there is but one condition, namely, that the grantee shall have issue or heirs of his body. 2 Minor Inst. 78 (87). The conditions admissible for the purpose of creating a condi-tionahfee are restricted to a single type, which always takes the form of a limitation expressed to be to the heirs of the body of the donee or donees, either generally or to a special class of such heirs. The word “heirs” limits a fee or estate of inheritance, while the imposed restriction prevents thq fee from being a fee simple in the proper sense of the term. Challis Real Prop. pp. 44, 209. He did not intend the issue or descendants of his grandchildren to take through his children, but required both grandchildren and their descendants to be then living, and to take directly and immediately from himself. Therefore there is no fee tail to be turned into a fee simple. This gift, is therefore, in form and effect, a fee simple absolute, determinable in the sense that it is future and contingent, and may never vest in interest, because the-donees are unborn, and may never come into existence. But this modifying quality is not expressed in the limitation fixing the quantity of ownership, but is only implied from the nature and circumstances of its origin as a gift to an unborn-donee. It is not a condition subsequent which may defeat a fee simple already vested, but is rather of the nature of a condition precedent, not to the creation of the future estate, but precedent to its vesting in interest or in possession. This-contingency is itself determinable within the rule against remoteness, and, so far as it bears upon the question of partial or total intestacy, it will itself, in contemplation of law, determine or end; that is, the unborn donee will in all likelihood for some purposes come into existence; and in this light it must be regarded in construing the will, and not by the light of subsequent events. I need not stop to give it a name. I have given its characteristics as I now see them, and its necessary effect in preventing partial intestacy. Section 8 of chapter 71 of the Code makes this devise without any words of limitation a devise of an equitable interest in fee simple-to the same extent as if the devisor had added the first sentence in Litt. Ten. (1475) “to hold to him and his heirs forever.” It can not be a remainder of any kind or a reversion in any proper sense, for they are respectively but parts of one whole; the one created by the parties, and the other by operation of law. ISlor do sections 12 and 13 of chapter 71 of the Code change this character of a remainder, but they only provide that it shall not fail for want of a particular-estate. Therefore this equitable, executory future interest in trust, created by this executory devise, exhausts all the equitable ownership that it is capable of; is commensurate with and rounded out to the full measure of the fee simple and absolute ownership conveyed and transferred to the trustees. This seems to be comprehended in and to be inferred from the view taken of this will in Whelan v. Reilly, 5 W. Va. 356, in which this same will was then before the Court and, it seems, between the same parties or parties in interest, their privies in right or in representation. In that case the majority of the Court say (page 375): “When the language of a testator is plain, and Ms meaning- clear, the courts hare nothing to do hut to carry out the will of the testator if noi inconsistent with some rule of law. By no construction of the language used in the nineteenth clause of the will can it be held that the testator intended to give to the said William, Philip or Mary Jane, or to either of them, any vested interest in the residuary fund, 'or in fact any interest in said fund. By the fourteenth clause there is an absolute disposition of the residuary fund in'trust for the children and other descendants of the said William, Philip and Máry Jane living at the time of the death of the last survivor of the said persons. All the interest which the said William, Philip and Mary Jane could have in the residuary fund is dependent on the uncontrolled discretion of the trustees, and is therefore a contingent interest.”

This brings us to what the books call a “possibility of re-verter,” which has been so fully and ably discussed. See 2 Minor Inst. 420; 1 Lomax Dig. (2d Ed. 1855) 603 et seq.; 4 Kent. Comm. p. 10 et seq., 354 (381); 2 Bl. Comm. 174, 175; 1 Washb. Real Prop. (4th Ed.) p. 90; Tied. Real Prop. (2d Ed.) § 385 et seq.; Gray Perp. § 13; Challis Real Prop. 58, 63; 19 Am. & Eng. Enc. Law 1028, 1055, note; Proprietors v. Grant, 3 Gray 142; Society v. Boland, 155 Mass. 171 (29 N. E. Rep. 524); Scheetz v. Fitzwater (1847) 5 Pa. St. 126; Id., 2 Shars. & B. Lead. Cas. Real Prop. 11, notes 17; Ocheltree v. McClung (1874) 7 W. Va. 532; Willion v. Berkley (1562) 1 Plow. 223, 244; 2 Pol. & M. Hist. Eng. Law, c. 4, § 1, pp. 21, 23. The freehold estate in right of present enjoyment, in possession, will come back by operation of law. In the case of remainder this residual ownership has also gone out of the donor; but to stay out — •remain away — is not to come back, but goes to another. Possibility of reverter denotes no estate, but, as the name implies, only a possibility to have an estate at a future time. Of such possibilities there are several kinds, of which two are usually denoted by the term now under consideration. (1) The possibility that a common-law fee may return to the grantor by breach of a condition subject to which it was granted; and (2) the possibility that a common-law fee other than a fee simple may revert to the grantor by the natural determination of the fee. Since every remainder and every reversion is a part only of the estate of the grantor or settlor, it follows that by the common-law no remainder can be limited in expectancy upon the determination of a fee, and that no reversion car remain in a grantor or settlor who parts with a fee. There can- not exist two common-law fees in the same land. Co. Litt. 18a; Willion v. Berkley, 1 Plow. 223, at page 248, and authorities cited in the margin. In regard to a fee simple and a determinable fee this proposition has never been disputed. Cliallis Real Prop. 63. But by ex-ecutory devise it has been, since the statute of wills, possible to limit a fee simple upon the determination or in defeasance of another fee simple. Id. It remains, Therefore, in the trustees, awaiting the event fixed for vesting in the unborn beneficiaries. During that time it needs no other abiding place than with the legal fee simple absolute. Then, if no one of them is in existence, it arises in its integrity as a vested interest for those who may then be entitled as of right, for the natural inherent determinable quality of such a gift by executory'- devise relates to and operates upon the fund as a whole, and not upon any part of the ownership, such as a possibility of a right. Section 14, chapter 122, Code Va. 1849 (Ed. 1860) p. 574, may be thought to have some bearing, for the testator died in 1866. It reads as follows: “Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised in any devise in such will which shall fail or be void or otherwise be incapable of taking effect shall be included in the residuary devise (if any) contained in such will.” To this the Code of West Virginia adds: “And if there be no residuary devise therein, such real estate or interest shall go to the heirs at law of the testator as if he had died intestate.” Code W. Va. (Ed. 1891) c. 77, s. 13, p. 660. This addition was made by act of 9th March, 1882. See Acts 1882, p. 196, c. 84, s. 13.

The chief object of section 14 of chapter 122 of the Code of 1849 (1860) was to modify the doctrine of lapse, and substitute residuary legatees for the heirs of the testator where there is a. residuary devise. Haymond, J., in Hoke v. Hoke (1878) 12 W. Va. 427, 472. See 1 Jarm. Wills (Bigelow’s 6th Ed.) c. 11, side pages 307, 309; McGreevy v. McGrath, 152 Mass. 24 (25 N. E. Rep. 29.) The statute in question (section 14, chapter 122, Code 1860) was taken from St. Vict. 1 c. 26, § 25. See 1 Jarm. Wills, side pages 321, 322. See 3 Lomax Dig. (2d Ed.) side page 114, top page 188; 2 Minor Inst., top page 1057, side page 947, as to lapse. In 1 Jarm. Wills, top page 336, it is said the doctrine of lapse is properly extended to the case of gifts on contingency. See 2 Woerner, Adm’n 911. Here the devise in question was of the residuary fund itself, and therefore this statute can have no application. This, however, leaves such possibility of the contingent resulting trust to go to his heirs at law at the testator’s death, to become an executory interest vested in right of possession in such heirs as may be living, and therefore able to take in the event of the devise to the unborn donee being thenceforth incapable of taking effect by his failure to come into being on the event prescribed; and then, and not before, such interest goes to the heirs at law of the testator as if he had died intestate thereof, meaning by necessary implication, that it did not fail to take effect by reason of partial or total intestacy. For the law as it now is, see Code (Ed. 1891) p. 660, c. 77, s. 13. The heirs at the death of the testator had no present interest vested in right. There was a possibility of the happening of a future event, which, if it should occur, would then give birth to some right or interest in them. It was a present possibility of a future executory interest coming to them as a whole. Such was its character, whatever we may call it, whether it was then vested in the sense of being transmissible or for any purpose, such as having a right to look after it in a court of chancery, or to sell for a valuable consideration, subject to the doctrine of relief given to expectant heirs against unconscionable bargains is the ultimate question. It may be called a possibility of a right of reversion in the trustees, a contingent, executory resulting trust to them for those who can show themselves entitled to take-in case the unborn donee is not in existence in the given event; and it comes and goes, as a whole, after the manner of executory interests, if it goes at all, for this was their characteristic in the beginning, lying at the foundation of the whole doctrine; and it remains so to this day, giving them their great capacity of being molded to any desired form and consequent adaptability and convenience.

There is another view that might perhaps be suggested in order to give effect by necessary implication in such a will to the partly, but imperfectly, expressed intention of the testator, without running counter to the restraint imposed by the maxim, “Yohiit sed non dixit” I give it, and must confess that it would impress me with great force if the tendency of our decisions were not strongly against applying the doctrine of implication in such cases. The scheme of this will excludes the heirs of the testator who may be living at his death in every instance in favor of his issue who may survive and be in existence when the given event happens. Such is the scheme of the fifth clause in favor of the children of John. It is to be held in trust for the then and thereafter born children equally in fee simple, and to the survivor or his issue attaining the age of twenty one. The same plan is followed in the sixth clause in favor of the children of William; in the seventh clause in favor of the children of Philip; in the eleventh clause in favor of the children, etc., of Mary Jane living at her death; and when we reach the fourteenth clause — 'the one disposing of the residuary fund — we find it going to those descendants of William, Philip, and Mary Jane living at the death of the last survivor of these three. So that we find that each disposing clause, including the fourteenth, which disposes of the residuary fund created by the twelfth, and kept in accumulation by the thirteenth clause, follows this same general plan, which shows clearly the design that the testator’s children were to take nothing except what should be given them in life under the uncontrolled discretion of the trustees, Avith the exercise of which the Court will not interfere in the absence of bad faith. Thus we see thatthroughoutthewili as a whole, and in each and every disposing clause, including the one in question, such general and predominant purpose stands out in plain view. Why, then, does not the necessary implication arise of a devise to his then living heirs in the event of the unborn donees not coming into existence, and that they are to take “without regard to any difference in degree of relationship or descent?” The exclusion of William, Philip, and Mary is plainly expressed. Is not this implication necessary as a component part of the will? See Bartlett v. Patton (1889) 83 W. Va. 72, (10 S. E. Rep. 21); Graham v. Graham (1883) 23 W. Va. 46. There is no such deficiency of expression as to compel the construction of a partial intestacy, as the intention to dispose of the whole clearly appears. See Trust Co. v. Coffin (1890) 152 Mass. 95 (25 N. E. Rep. 30) and 8 Lawy. Rep. Ann. 740, notes. Therefore it maj be said it is not a case which rests on conjecture of what we infer the testator would have said had he gone further and said more, but it is a case of plain intention to dispose of his whole property, as shown by the creation of the residuary fund, and by his will, taken as a whole. In contemplation of law he had a right to suppose that some of the ultimate beneficiaries would come into existence, and, if they did not, that those of his heirs who were then living would take by express words, helped out by necessary implication, without embarrassing his will by alternative express dispositions to meet such a remote contingency. If the declarations of trust as to the residuary fund could be regarded as in any degree incomplete, executory, then I have no doubt the correct view would be for the fund to go per capita by purchase under the will .to the heirs, etc., of the testator living .at the deatli of the last survivior of William, Phillip, and Mary Jane, no unborn donee having come into existence.. But, for reasons already given, I do not regard the declaration of trust as incomplete. Such an alternative limitation can not be implied from a provision that the three children shall not take, for, unless the testator meets the contingency of its failing to take effect by giving it to some one else (Boissieau v. Aldridges, 5 Leigh 222), it results to the heirs at law in analogy to descent cast. Here the testator has given no intimation, direct or indirect, that he had in mind such a contingency. He has certainly not met it by an alternative exe-cutory deArise to any one else. Nor has he, in express words, said that the heirs should in no event take, which might perhaps have prevented a resulting trust to arise to them. See Attorney General v. Green (1789) 2 Brown Ch. 492; 2 Crabb Real Prop. § 1794. Thus we have seen that the legal ownership and estate in fee simple absolute and in ownership absolute is expressly devised to and vested in the trustees for the clearly manifested purpose, among others, of cutting off all likelihood of partial intestacy. The corresponding equitable trust estateis also in the trustees, and the two are presumed to abide there in union until the time comes for the trust estate tospringupandvestintitleor in enjoyment,as the case may be. In the meantime the trust estate is marked out, and is capable of separation, and so will have definite characteristics when the time to separate comes; and when such separation and vesting does take place, such vested ownership of the trust will confer upon the cestui que trust the right to the rents and profits, and also the right to call upon the trustees to convey the legal title' as the equitable owner may direct, subject, however, to the doctrine laid down in Bass v. Scott, 2 Leigh 356, relating to active continuing trusts. In devolution of ownership it then follows the statute of descents and distribution. In its creation it is not complicated with the doctrine of abeyance of the freehold, or the common-law prohibition against creating freeholds to commence in the future, for neither applies to such an instrument, the fundamental idea of which is to comprehend real and personal property as near as may be in one and the same limiting words in the same disposing clause; and to cause the equitable ownership to abide its time in the trustee, and to rise up or shift as a whole when the event prescribed shall happen, provided it does not contravene the rule against remoteness. In other respects it follows tlip analogy of legal ownership. Here the equitable ownership of the trust fund as created and declared by the devisor is coextensive in quantity and runs parallel with the legal ownership in the trustees; but it is liable to be prevented from ever rising up and vesting in title to any right of ownership by reason of the inherent quality of being given to one designated, but not yet in existence. This quality is in the nature of a condition precedent, but technically it is not such, because it is not express, but mainly because we are in a court of equity dealing with trust property. So far as it is an executed trust exhaustively created and declared, we take it as we find it at the death of the testator, uncontrolled and unqualified by the current of subsequent events; but, so far as the instrument is incomplete, ex-ecutory, we should pursue the manifest intention of the testator to the end as near as may be. In this view, and in the event supposed, the donee not having come into existence, a resulting trust for the first time separated from the legal ownership, and for the first time vested, would spring up and vest in the then heirs, eie., of the devisor.

The law of this case and of cases like it shows that the division into vested and contingent is not exhaustive. See Challis, Real Prop. p. 56 As to the origin of the use of the term, see 2 Pol. & M. Hist. Eng. Law, p. 85. Nor is vested always the opposite of contingent or of executory, nor does the fact of vested or non-vc-sted always determine the question of transmissibility; especially under our statute of wills and descents. And under section 5 of chapter 71 of the Code, which reads, “Any interest in or claim to real estate may be disposed of by deed or will,” that which descends may be devised, and generally that which may be devised may be sold and conveyed. The word “vested” had originally no reference to the absence of contingency. Hawk. Wills 221; Gray Perp. p. 62, § 99. See Id. § 11, note 2. So that it by no means follows that because an estate is contingent, therefore it is non-transmissible; for many contingent remainders and contingent executory interests are transmissible by descent, and if so, they are alienable by will and by deed. In fact, such would seem to be the general rule under our statutes. Contingency does not necessarily negative transmissibility. It is in a state of contingency and doubt whether it will ever go to any one save the unborn devisee, but if it does not go there, by reason of his not coming into existence, then, by reason thereof, the interest in the fund comprised in such devise has become, by an event after the death of the testator, incapable of taking effect. By law it then comes by descent, as a right now vested in possession, to the heirs of the testator then living. As a possibility of a resulting trust, coupled with an interest, it had come to the heirs of the testator living at his death. Such possibility came to an ascertained class, but one liable to open and let in others before the contingent and future event giving the right of enjoyment might happen. During this period of suspension this possibility of a resulting trust to the heirs and a contingent executory interest to the unborn devisee remains with the legal title, awaiting the prescribed event which is to determine, within the rule against remoteness, where the contingent interest will go as a fixed right of property. And during this period of doubt and suspénsion of vesting fixed by law as not unreasonable, and not against public policy, the equitable ownership has its true and only abiding place with the legal ownership, vested for that purpose, among others, in the trustees. And in this lies the fundamental principle and consequent simplicity, flexibility, and convenience of this mode of alienation; and the attempt to import into it and go by the irreconcilable common-law rules and principles of contingent remainders can but result in producing confusion and uncertainty.

If this view is correct, there is no partial intestacy, no such want of express language of disposition as to leave any part of the ownership of the residuary fund undisposed of, although the testator left a remote contingency which could only be met by the law of descents. This we have called the possibility of a resulting trust, and although such possibility was no part of the equitable ownership, yet depending upon the contingency of the unborn devisee not coming into being, it is said to be coupled with an interest, and therefore belonged to the heirs of the testator living at his death — might have been granted, assigned or devised by them, and under our statutes of descents and distribution would pass to their heirs or personal representatives — for a man may have a possibility of reverter where no remainder can be limited (see Gray on Perp., p. 22), and in this State (Va.) it has been thought that a right of entry was devisable under our Statute of Wills. See opinion of Green, Judge, in Watts v. Cole, 2 Leigh 653, 664 (1830.)

The decree complained of would have been right if it had said that on final hearing of the equities plaintiffs were not then entitled to the relief prayed for, followed by a final decree of dismissal, but without prejudice. Such correction couldnowbemade,and (he decree thus corrected be affirmed. Such is the usual course. But it is likely that the trustees desire henceforth to act under the guidance and direction of the Court, and to make a settlement of their accounts; and the plaintiffs have in their pleadings laid the foundation for taking such account. It seems proper that this cause should be retained in the Circuit Court for all proper relief if the parties see fit to ask it.

The decree complained of is therefore reversed, with costs against the fund, and the cause is remanded for further proceedings)