Dorset, J.,
delivered the opinion of this court.
The codicil to the last will and testament of William Beanes contains the following devises, viz: “Whereas, by my said .will, I do will and devise to John Read Magruder, my present .dwelling, and all the grounds, garden, buildings and enclosures attached thereto; also the mill, meadows, and all tire land attached to and adjoining the same, during the life of my brother, *89Colmare, in trust, to receive and apply tile profits thereof to his use and benefit: after his death, do will and devise the same to his grand-sou, Philip Key, in fee simple, reserving the grave yard in the garden, which is to be kept up and in complete order by my executors. Now I do hereby revoke and annul the said clause or clauses, devise or devisees, and do will and devise as follows, to wit: I will and devise to John Read Magruder, Sr., my dwelling, aforesaid, and all the grounds, garden, buildings and enclosures attached thereto, reserving the grave yard, in the garden, which is to be kept up and in complete order by my executors, who are, at all times, to be permitted to have free access to the same ; also the mill, meadows, and all the land attached to and adjoining the same, to hold the same during the life of my brother Colmare, in trust, to receive and apply the proceeds to the use and benefit of my said brother during his natural life; and after his death, I will and devise the said dwelling, grounds, garden, buildings and enclosures attached thereto; and the mill, meadows, and lands attached to and adjoining the same to John Read Magruder, Sr., aforesaid, to hold the same in trust for the use and benefit of Philip Key, the grand-son of my brother, Colmore, and to receive and apply the profits thereof to his use and benefit; and in case the said Philip Key should have issue of his body lawfully begotten, then I will and devise the said dwelling, mill, &c., to the said Philip Key, in fee simple, but in the event of his dying without such issue, I will and direct that the same bo sold by my surviving executor, &c., and the proceeds thereof I bequeath as follows: that is to say, one-half thereof to my nephew, John H. Beanes, and the other half to John Read Magruder, Sr., aforesaid, to hold the same during the life of my sister, Millicent Magruder, in trust for her sole and separate use and benefit, &c.; and at her death the principal to be equally divided among her children. And whereas, also, by my said will, I did give and bequeath to Philip Key, aforesaid, one-fourth part of the residue of my property, real, personal, and mixed, directed by my said will to be sold; and, also, one-fourth part of my debts, which said legacy I do hereby also annul and revoke, and do give and bequeath to the said John Read Ma, *90gruder, Sr., in trust for the use and benefit of the said Philip Key, the said one-fourth part of the proceeds of the residue of the property, aforesaid; and also the one-fourth part of my debts, hereby requesting him to invest the same in stock, or loan it on good security, and apply the interest thereof to the use and benefit of Philip Key, aforesaid, and in case he should have issue of his body lawfully begotten, then the stock or bonds, or other securities in which the said investment may have been made, to be made over and transferred to the said Philip Key; and in the event of the said Philip Key dying without issue of his body lawfully begotten, then I give and bequeath one-third part thereof to my nephew, John H. Beanes; other third part, I give and bequeath to my brother, Colmore Beanes; and the other third part I give and bequeath to the said John Read Magruder, Sr., to hold the same in trust for the sole and separate use and benefit of my sister, Millicent Magruder, during her life, hereby requesting the said trustee to apply the interest thereof, during her life, to her sole and separate use and benefit; and at her death, to divide the principal equally among her children. ”
On reading the herein before recited clause of the codicil, we think the intention of the testator is apparent, that the one-third part of the debts and residue of the testator’s estate, bequeathed in trust for Millicent Magruder, should vest in her trustee at the same time, and upon the same contingencies, with the moiety of the proceeds of the sale of the real estate mentioned in the preceding part of the said clause. Such intention being conceded, it is the duty of the court to carry it into effect, if not inconsistent with some unbending rule of law. In order, therefore, to arrive at a correct interpretation of the bequest in relation to the residue, &c., it is proper to ascertain the true construction of the devise of the real estate disposed of in the preceding part of this section of the codicil. That a trust estate, for life only, is in the first instance given to Philip Key, cannot be denied. That there is no limitation over of the property devised, (conceding that the life estate had been unincumbered by the trust,) to the heirs or issue of the body of Philip Key, so as to let in the operation of the rule in Shelly’s case, is equally undeniable. The limitation over, after the trust estate to him *91for life, is to Philip Key, himself, in feo simple, in the event of his having issue. The superadded limitation over, in favor of John If. Beanes and Millicent Magruder, was not made dependent upon this fee simple estate, or to take effect upon its termination, by the happening of the contingency supposed to have been provided, in the codicil, for its duration. On the contrary, the vesting of the fee simple estate in Philip Key, by his having children, put an end to the limitation over, in favour of John H. Beanes and Millicent Magruder, and left the estate of Key absolute, and exempt from all contingencies for its determination, as far as the codicil of the testator was concerned. The limitation over, in favor of John H. Beanes and Millicent Magruder was intended not to follow the fee simple estate, and to vest and be enjoyed only after its investiture and contingent determination, but was intended as a substitute for the fee simple estate, in case of its never coming into being, according to the contingency provided for its creation.
Assuming this to be a correct view of the intention of the testator, let us see what is the character of the estates, created by this codicil, and how far, according to the established principles of law, applicable to such subjects, this intention of the testator can be carried into effect. In Hoxton and wife’s lessee vs. Archer and others, 3 Gill and John., 199, this court say ccii is a general rale, in the construction of wills, that a limitation, which may operate as a remainder, shall not be construed an executory devise.” And this is but the assertion of a horn-book principle of the Jaw of England. The limitation in fee simple (o Philip Key, cannot operate as a vested remainder as its coming into existence, or vesting, depends on a contingency which may never happen, to wit: Philip Key’s having lawful issue. It is good as a contingent remainder, because of the previously given particular estate for life, on which it depends, and which supports it. The happening of the contingency terminates the life estate in Philip Key, and creates a fee simple in its stead And the non-occurrence of the contingency, and natural termination of ihe particular estate for life, by the death of Philip Key, gives effect to the substituted contingent remainder in fee, in favor of John H. Beanes and Millicent *92Magruder, and causes it to vest. The vesting of the contingent remainder in fee to Philip Key, depending on the contingent termination of his life estate, by his having issue, whilst the substituted contingent remainder, in favour of John H, Beanes and Millicent Magruder, could only take effect, or vest, by the natural expiration of the life estate; that is, by the death of Philip Key, without having had lawful issue. And this kind of alternative limitation is termed a contingency with a double aspect. The interpretation we have given of this first part of the testator’s codicil, is in accordance with the doctrine to be found in Fearne on contingent remainders, p. 373, where it is stated, “ that although a fee cannot, in conveyances at common law, be mounted on a fee, yet two or more several contingent fees may be limited merely as substitutes or alternatives, one for the other, and not to interfere, but so that one, only, take effect, and every substituted limitation be a disposition substituted in the room of the former, if the former should fail to take effect.”
Having, as we suppose, ascertained what, according to the rules of law, was the intention of the testator in the devise made by him, in favor of John H. Beanes and Millicent Magruder, of the real estate mentioned in the first part of his codicil; and having assumed, what we think cannot be denied, that the testator intended that his bequest, in their favor, of the residue of his estate and debts should take effect at the same time, and upon the same contingences that are applicable to tire realty; let us see, as this bequest of the residue, &c., is to be regarded as a disposition of personalty, how far the intention of the testator, in relation to it, can be effectuated according to the established rules of law applicable to such subjects.
According to the old doctrines of the common law, a gift or grant of chattels for life, vested the absolute property in the donee or grantee; and a bequest of them by will for life,f (amounted to so absolute a gift as to invalidate any further limitation after the first legatees death,” But in note (E.,) to Fearne Con. Rem., 402, it is stated, that “in personal property, under which both chattels real and chattels personal are included, there cannot be a remainder in the strict sense of the word; and therefore, *93every future bequest of personal property, whether it be preceded or not preceded by a particular bequest, or limited on a certain or an uncertain event, is an executory bequest, and falls under the rules by which that mode of limitation is regarded.” So 2 Rop. on Leg„ 351, states, that “although the law does not allow of limitations of personal estate by way of remainder, in the proper use of that term, yet by executory bequest or trust, interest in the nature of remainders may be created by will or deed.” And that the same effect would be given to a limitation over in a deed for a chattel, may fairly be inferred from the case of Johnson vs. Negro Lish., 4 H. & J., 441. “In dispositions of personal property, the courts generally incline to the construing a limitation after a dying without issue, to mean a dying without issue at tire death of the first legatee, in order to support, if they can, the limitation over; yet, in relation to real estate, the construction is generally otherwise.” See the case, Newton et al. vs. Griffith et al., 1 H. & G., 111; and in Biscoe vs. Biscoe, 6 Gill & John., 232, this court have said, that in “relation to executory bequests of personal property, dependent upon a dying without lawful heir, or leaving issue, &c., the language of the will may be restricted to mean a dying without issue living at the death of the taker, or another person in esse, by any clause or circumstance in the will that can indicate such intention in the testator; and, in order to support the limitation over, the courts, in such cases, generally incline to lay hold of any expression or circumstance in the will that seems to afford a ground for such a construction. ’ ’ And such is the inclination of the courts to give effect to executory bequests of personalty, that where in the same clause in the same will, there has been a limitation over, of real and personal property, after a failure of issue, they have hold the limitation over, as to the personalty, good, as not being too remote, whilst the same limitation over, as to the realty, has been held to be void, on the ground of its being too remote. Under the influence of such adjudications, and with the assumption we have made, that the testator intended that the limitations over, both as to the realty and the personalty, should take effect at the same time, and upon the same contingen*94ties, how can this court, after having said that the failure of issue, as to the realty,meant “without ever having had issue,” hesitate to give the same construction to the same words in the limitation over, as to the personalty?
Assuming then, that John H. Beanes, or he who represents him, is entitled to the fund sought to be reached in the present proceeding, and that the trastee of Millicent Magruder is entitled to the sum bequeathed to her under the residuary clause of the testator’s codicil, the remaining enquiries are, has he shewn himself entitled to recover it, under the proceedings now before us? And if so, to what amount is the recovery to be had?
The opinion we have formed upon the first of these enquiries superseded the necessity of our consideration of the second, and also our determination of a large proportion of the numerous questions which were raised and discussed in the trial of this cause.
To entitle a party seeking to recover in a court of equity, against one of several sureties in a trustee’s bond, the whole amount of his claim against the defaulting trustee, he must prove not only the insolvency of the principal in the bond, but of all the other co-securities. In the record before us there is no evidence to shew, that Philip Key, one of the securities, died insolvent, or that his estate in die hands of his representatives is not abundantly sufficient to meet all liabilities against him, in virtue of his suretyship. Nor have his representatives been made a party to this proceeding of the trustee of Millicent Magruder, nor have they had any opportunity of answering his petition. The order of the chancellor, appealed from, is erroneous upon this ground, if exempt from the many other errors which have been imputed to it. But apart from this objection the whole proceeding on die part of die trustee is clearly erroneous, upon another ground: a court of chancery has no power to grant the relief prayed for under the circumstances existing in this case; it has no such jurisdiction over the subject matter as would warrant its granting the relief which, has been prayed.
*95In Richardson vs. Jones, 3 Gill & John., 163, where an effort was made to compel a purchaser and his sureties under a chancery sale to the former, to bring into court the purchase money, this court determined, that “when a bond is given to the trustee for the purchase money, under an order of sale from chancery, requiring a bond to be given, and the sale has been ratified, the purchaser and his sureties cannot be compelled to pay the bond in a summary way, by an order from chancery. This constitutes a legal contract to be enforced at law.” And in a like case of Boteler and Belt vs. Brookes, 7 G. & J, 143, this court said “the sureties of such a trustee have no official duties to perform, assume no responsibility to the court, but, in general, enter into a merely pure, legal contract of suretyship, incapable of coercion, except through the medium of the appropriate forum, for the enforcement of such contracts—a legal tribunal.” The same may be emphatically said of the suretyship now in question before us; and the condition of the surety is in no wise changed by the simple fact, that he is a distributee, or entitled to a sum of money to be paid over to him, under the order of the chancery court. That fact, of itself, gives to the chancery court no authority to enforce his compliance with his mere legal liabilities. The remedy for their non-performance, if attainable there, must be sought in a court of law. As regards the jurisdiction acquired by the chancery'court, in consequence of there being a fund there distributable and payable to him, over whom the jurisdiction is attempted to be exercised, there is no distinction between a surety, and any other debtor thus entitled. And surely it will not be contended, that the mere circumstance of a debtor being entitled to fund in chancery, is to disfranchise him of his invaluable common law right of contesting before a jury of his country, all legal claims which his creditors may prefer against him. The establishment of such a doctrine is the necessary result of giving to the trustee of Millicent Magruder the relief he has sought in the proceedings before us.
It is true, that where, in a suit in chancery, there is a fund in court for distribution, a person, not a party to the suit, (if all the necessary parties are before the court,) may, in the sum*96mary way of petition, assert his right to the whole, or any portion of the fund. But what must he shew to entitle himself to the relief he seeks? simply (as here,) that he is, at law, a creditor of one of the distributees of the fund? Assuredly not. If he thus claims, as a creditor of a distributee, he must shew himself remediless at law, or that he has some lien or title to the fund sought, which it is the duty of a court of equity to enforce. The trustee of Millicent Magruder has shewn himself in no such predicament; he has no such claims to the interposition of a court of equity: bis claim is strictly a legal one; he can obtain the full benefit of it at law, and there he must pursue it. The estate of John II. Beanes, in the hands of his representatives, has been proved to be abundantly sufficient to meet it.
The order of the chancellor, of the 12th of May 1843, appealed from in this case, is reversed with costs.
order reversed with costs.