The opinion of the Court was delivered by
Mr. Justice Jones.
The plaintiff seeks partition of a tract of land lying in Beech Island, Aiken County, basing his right therefor on a deed of trust, executed March 28th, 1871, whereby the grantor, William Foster, conveyed with general covenants of warranty this tract to the plaintiff, William H. Foster, his heirs and assigns forever, in trust for the sole and separate irse of Mrs. Sarah A. Foster and her children. The deed contains also this provision or language, “and my son, George W. Foster, is requested and desired to reside on the said premises during his life, or as long as it may suit his pleasure or convenience.” George *533W. Foster, sr., is the son of William Foster. Sarah A. Foster was the wife of George W. Foster, sr., and at the time of the execution of the deed had four children, viz: the plaintiff, William H. Foster, and the defendants, Mrs. M. M. Glover, George W. Foster, jr., and Mary E. Foster. Sarah A. Foster died in 1890, leaving as her only heirs at law her husband, the defendant, Geo. W. Foster, sr., and the four children above named. The grantor, William Foster, is dead, and leaves as his only heir at law the defendant, George W. Foster, sr. George W. Foster, sr., now resides on the premises with his daughter, Mary E. Foster. He has been in possession of the land, together with his wife, Sarah A. Foster, up to her death in 1890, and since that time he has continued in possession, the defendant, Mary E. Foster, living with him, the other children having moved elsewhere. These facts are not disputed.
The defendants, M. M. Glover, George W. Foster, sr., Mary E. Foster, and George W. Foster, sr., answered jointly, and after a general denial, set up the plea that the land could not be partitioned, for the reason that George W. Foster, sr., has the right of possession of said property during his lifetime, or at his will and pleasure, and that he is still living, and objects to partition, and that the other defendants join him in said objection. The defendant, George K. Chafee, as receiver, intervened and answered, setting up a mortgage for $58 and interest, and ten per cent, additional for attorney’s fee, executed by the plaintiff to the County Loan and Savings Bank, covering his interest in said lands, and joined in the prayer for partition, and asked for the foreclosure of the mortgage. The defendant, B. F. Turner, intervened and answered, setting up bond and mortgage, executed 30th July, 1894, payable 30th July, 1895, by the defendants, George W. Foster, jr., and George W. Foster, sr., for $700, with interest from date at eight per cent., covering the interest of said George W. Foster, jr., and George W. Foster, sr., in said premises, described in the mortgage to be “to the extent of one-fourth interest.”
*534The Circuit Court made decree, August 3d, 1895, adjudging that George W. Foster had no estate or right of possession of said premises, under the terms of the trust deed; that the trust being passive, the statute of uses executed the trust, and that Sarah A. Foster and her children, M. M. Glover, George W. Foster, jr., Mary F. Foster, and W. H. Foster, took an estate in fee in said land, as tenants in common, at the date of the deed; and that on the death of Sarah A. Foster, in 1890, her interest, one-fifth, descended to her husband, George W. Foster, sr., and the four children named above are her heirs at law. Accordingly he decreed for a sale of the premises, and a division of the proceeds among the parties, according to their interest as fixed by him, and directed that the mortgage in favor of defendant Chafee, as receiver, be paid out of the share of plaintiff in the proceeds, and that the mortgage of defendant Turner be paid out of the shares of the defendants, George W. Foster, jr., and George W. Foster, sr., the amount decreed to be due on this mortgage, being $831.60, which includes $75.60 as counsel fees for collection. The decree fixed the interests of the parties in the premises as follows: an undivided one-twenty-fifth (1-25) interest to the defendant, George W. Foster, sr., and an undivided six-twenty-fifths (6-25) interest to the plaintiff, and to each of the defendants, M. M. Glover, Mary F. Foster, and George W. Foster, jr. '
The defendant, George W. Foster, sr., with whom the 'defendants, M. M. Glover, M. E. Foster, and George W. Foster, jr., join, appeals from this decree on five exceptions set out in the case, which make substantially these questions: (1) Whether George W. Foster, sr., is entitled, under the trust deed, to the possession of the said premises during his life? (2) Whether the plaintiff, and those in like interest with him,, have an absolute estate in fee in said land, or merely a life estate, and whether, after their death, the fee reverted to the heirs of the grantor? (3) Whether the interest of George W. Foster is not 1-15 interest in said premises, instead of 1-25, and that of the plaintiff and the *535other three defendants 7-30, instead of 6-25, under the Circuit Court’s construction of the deed? (4) Whether the counsel fees or commissions may be allowed againt George W. Foster, jr., and George W. Foster, sr., on the mortgage to defendant Turner?
The decree of the Circuit Court, the trust deed, and the exceptions of the appellants will be set out in the report of the case.
1 Taking up the first question stated above, whether George W. Foster, sr., has any right of possession of said premises during his life, it is quite clear that he has not. The words in the trust deed relied on to sustain appellant’s contention that George W. Foster, sr., has such right of possession are: “Andmyson, George W. Foster, is requested and desired to reside on the said premises during his lifetime, or as long as it may suit his pleasure or convenience,” coupled with the words describing the consideration of the deed to be “the natural love and affection which I have for my son, George W. Foster, and his family,” &c. We are satisfied with the conclusion of the Circuit Court on this point, well sustained as it is by the authorities cited. The construction contended for by appellants is wholly inconsistent with the scope and purpose of the deed, and would contradict and nullify almost every other word in the deed. The land was set apart “for the sole and separate use of Sarah A. Foster and her children.” The grantor doubtless thought that a trustee was necessary to enable the wife to hold the land, for he used the language usiially employed when it is expressly intended that the husband shall not control the property set apart for the wife. The covenants of warranty bound George W. Foster, as the heir of the grantor, to defend the premises unto the grantee and his heirs against himself. It is true, that the deed was partly made in consideration of the love the grantor had “for George W. Foster and his family;” but this love is well shown in providing for the family of George W. Foster, and the valuable consideration was from the one to whom *536the fee was granted. From such words it is impossible to imply any estate, use, occupancy or trust in conflict with the grant of the whole estate in fee with all its incidents to another.
2 3 We will consider now the second question above, as to what estate the parties take under the trust deed. It is clear, as held in the Circuit Court, that no duty is imposed upon the trustee under this deed; that the trust was simply a dry, passive trust, and, under the Statute of Uses, 27 Henry VII., C, 10, sec. 2089, Rev. Stat., was immediately executed, and the estate vested in the parties entitled to the use. This is well settled, and a reference to the cases cited by the Circuit Court is quite sufficient. Indeed, appellants’ counsel do not dispute this. But the question arises, what estate is vested in the cesttds que tmstent under this deed? The Statute, 27 Henry VII., C, 10, provided, “that when any person shall be seized of bonds, &c., to the use, confidence, or trust of any other person or body politic, the person, &c., entitled to the use in fee simple, fee tail, for life or years, or otherwise, shall from henceforth stand and be seized or possessed of the land, &c., of and in the like estates as they have in the use, trust or confidence, and that the estate of the person so seized to uses shall be deemed to be in him or them that have the use in such quality, manner, form, and condition as they had before in the use.” Our statute, sec. 2089, Rev. Stat., concludes, that “the person, &c., having such use, &c., shall be deemed and adjudged in lawful seizin, estate, and possession of same lands, &c., to all intents, instructions, and purposes in law of and in such like estates as they had, or shall have, in use, trust, or confidence in the same.” The grant in this deed is to the trustee, “his heirs and assigns forever,” but there are no words of inheritance in reference to the cesttds que tmstent. The trustee is simply to hold in trust “for Sarah A. Foster and her children.” There is strong authority for saying that when the statute of uses executes the estate in the cesüd que trust, *537the exact estate given to the trustee is transferred to the cestui que trzist. See Perry on Trusts, vol. 1, 3d ed., § 302, p. 404. The rule in reference to passive trusts is stated in this authority thus: “In all cases where an estate is given to one for the use of another in such manner that the statute of uses steps in and executes the estate in the cestziz que tzmst, the statute executes in the cestui que trzist only the estate that the first donee or trustee takes; that is, the statute executes or transfers the exact estate givezz to the tnistce'1'1 (italics ours). This author goes on to state that a different rule prevails in respect to an estate upon a trust or use not executed by the statute. “In all these cases,” says he, “the extent or quantity of the estate taken by the trustee is determined not by the circumstance that words of inheritance in the trustee ate, or are not, used in the deed or will, but by the intent of the parties, and the intent of the parties is determined by the scope and extent of the trust.”
In the case at bar, the fee was given to the trustee, and if the estate was immediately executed in the cestziis que trustent, being a passive trust, fhen under this authority, if it be law, the fee is in the cestui qzie trust. It may be said here, in passing, that while it is true that Sarah A. Foster was a married woman at the execution of this deed in 1871, and up to the time of her death, in 1890, still, this fact, since the Constitution of 1868, will not prevent the operation of the statute of uses. Georgia C. & N. Ry. Co. v. Scott, 38 S. C., 34.
4 *5405 *537• But we will not rest this case on the authority cited above from Perry on Trust. AV'hile there are no cases in this State in conflict with the rule above stated, it seems that the decided cases in this State have proceeded on the theory that, notwithstanding the grant is to the trustee in fee, the Court should look further into the trust deed to ascertain the intent of the grantor. It is not doubted that, as a general "rule, the word “heir” is necessary to carry a legal estate, nor is it doubted that, as an *538exception to this rule, the word “heir” is not necessary to give an equitable estate the character of inheritability, provided the intention of the party creating the trust to grant the fee to the benificiary or cestui que trust can be made out from the whole instrument. This is conclusively so ruled in Bratton v. Massey, 15 S. C., 277; Fuller v. Missroon, 35 S. C., 328, and the authorities in these cases cited. In seeking this intent, Courts of Equity, in their jurisdiction over trust, will not be bound by the technical rules of the common law. In Bratton v. Massey, which was a case in which the fee was conveyed to the trustee without words of inheritance in reference to the beneficiary, the Court, as was stated by Mr. Justice Pope in Fuller v. Missroon, supra, “seized upon the almost unlimited power of disposition given to the beneficiary to deduce the intention of the grantor that the estate created by his deed was a fee simple, by in effect supplying the word “heir.” So, in Fuller v. Missroon, the Court, from the power of sale contained in the deed and the direction, that the property “shall vest in the issue absolute,” deduced the intent that the issue should take the fee. What estate, therefore, did the grantor intend-to convey to the cestni que trust? It is settled by the two cases cited above, that where a trust deed is based upon a valuable consideration, however small, this fact may be taken as evidence of the intention of the grantor to convey the whole estate, and it will usually be held to prevent a resulting trust in the grantor or his heirs. In this case the deed was made in consideration of $50, paid by the trustee. It is evident, therefore, that the grantor meant to convey the whole estate without resulting trust to the grantor or his heirs. The grant of the fee to the trustee with no possibility of reverter, discloses the intent that the whole estate conveyed should go to the beneficiaries, the object of his love and bounty. If this was not the grantor’s intent, what was his intent? The alternative is that the fee would remain in the trustee, and appellants could scarcely complain that the trustee, who is plaintiff, is willing to parti*539tion the estate among them. 'Looking further into the deed itself for the intent of the grantor, we find on the surface a fact which is conclusive. That fact is, that W. H. Foster, the plaintiff, is not only trustee, who has paid a valuable consideration, but he is, also, one of the beneficiaries, being a child of Sarah A. Foster. Now, while it may be true that the statute of uses would execute the trust, so far as it related to the estates of Sarah A. Foster, M. M. Glover, Mary B. Foster, and George W. Foster, jr., but have no application to the estate of W. H. Foster, since, as to his own interest as beneficiary, he is not “a person seized to the use of some other person,” one of the three circumstances necessary to the execution of a use by the statute (see Williams v. Holmes, 4 Rich. Eq., 485); still, under the doctrine of merger, the plaintiff took an absolute title to a part of said premises. “If the trustee be one of the beneficiaries of the trust, he is absolute owner of a share of the estate equal to his interest.” 2 Wash. Real Prop., 516. Though doubted -by Chancellor Kent, 6 John Ch. R., 426, it is settled law that a merger may b& pro tanto (Trimmier v. Vise, 17 S. C., 499), and as to certain persons among the cestuis que trust. 25 N. J. Law, 137; 103 Ind., 533" court="Ind." date_filed="1885-11-19" href="https://app.midpage.ai/document/hancock-v-fleming-7048054?utm_source=webapp" opinion_id="7048054">103 Ind., 533. Here, then, to the extent of the interest or estate of the plaintiff, W. H. Foster, as a beneficiary, was a union of the legal and equitable estates, and the equitable merged into the legal. The deliberate act of the grantor in conveying the legal estate in the whole and the equitable estate in a part of the premises to the same person, clearly discloses an intent that the quality of the estate in the whole premises should be carried into the estate in a part thereof. If a person should grant land to A, in fee trust for A, could any one doubt that the grantor intended that A should have the fee? Would it not be equally certain, if he should convey the land in fee to A, in trust for A, B. C, D, and B, that the grantor intended A to have an estate in fee in one-fifth of the land? The intent, therefore, to grant a fee in this land to W. H. Foster, as one of the beneficiaries, is demonstrable. But *540this beneficiary is but one of a class, or of several, for whom the grantor wished to provide. “Sarah A. Foster and her children” were the objects of his love and bounty. The trust was for each alike. Conceding the intent that one beneficiary shall take in fee, we must concede the intent that all shall take in fee. Wallace v. Craig, 27 S. C., 514, and McNair v. Craig, 36 S. C., 100, settled that, tinder a deed to a trustee, “his heirs or assigns,” in trust for the sole and separate use, &c., of B, a married woman, and her children, the married woman took an equal share with each of her children living at the execution of the deed. So that Sarah A. Foster and each of her children, at the execution of said deed in 1871, took one-fifth of the land in fee. Sarah A. Foster having died in 1890, her interest descended to her husband, George W. Foster, sr., and her children, as heirs at law, one-third thereof to the husband and one-fourth of two-thirds thereof to each of said children. That is to say, one-fifteenth of the whole premises goes to the defendant, George W. Foster, sr., and seven-thirtieths of the whole to each of the four children, the plaintiff and the defendants, M. M. Glover, Mary E. Foster, and George W. Foster, jr.
From what has been said, we must overrule the first, second, and third exceptions of appellants.
6 The Circuit Judge in his decree evidently errs, no doubt inadvertently, in stating the interest of George W. Foster, sr., to be one-twenty-fifth, instead of one-fifteenth, and in stating the interest of the plaintiff, and the three defendants in like interests to said premises to be six-twenty-fifths, instead of seven-thirtieths. This error is the foundation of exception four, which must be sustained. Respondents’ attorneys concede this, and ask that the proper correction may be made.
*5417 *540Exception five alleges error in the Circuit decree, in allowing counsel fees to amount pf $75.60 against the defendant, George W. Foster, jr., and George W. Foster, sr. We find nothing in the bond and mortgage to defendant, *541Turner, to warrant this allowance for counsel fees. This seems to be conceded. Counsel for defendant, Turner, have filed no argument in this case, and counsel for appellants in their argument state that “counsel for Mr. Turner have notified us that they abandoned this claim.” Exception five is sustained. The Circuit decree should be modified in the two particulars above specified, but in all other respects it should be affirmed.
It is the judgment of this Court, that the judgment of the Circuit Court be modified in accordance with the principles herein announced, and it is remitted to the Circuit Court for such purpose, and for such further proceedings as may be necessary.