— Stephens J.
By the Court.
delivering the opinion.
[1.] We think the presiding Judge erred in admitting against Wiley Pool and his wife, the sayings of James and Nancy Allen, uttered at any time, except at the division of the negroes. What they said at that time, or what any body else said then, was part of the res gestee, and would be admissible as such. But what they said either before or after-wards, is, as to Pool and wife, mere hearsay. True, they were life-tenants, and Pool and wife were remainder in the same negroes, but they were not pi'ivies with Pool and wife, and therefore their admissions are not evidence against Pool and wife. The rule is, that admissions are evidence against the parties who make them and their privies. This evidence was- admitted upon the idea that Pool and wife were privies *382in estate to Allen and wife. Not so. A privy in estate is a successor to the same estate, not to a different estate in the same property. In this case, the estate of Allen and wife was during Mrs. Allen’s life, and the estate of Pool and wife did not commence till the other was ended.
[2.] We think there was error also, in refusing to allow Pool to amend his bill, by striking his name as complainant and inserting it as defendant. The amendment.Act of 1853 and 1854, is surely broad enough to include this case.
[3.] We think there was also error in the charge, that when Pool and Morris, the husbands of the two women entitled in remainder, and young Allen, the other remainderman, bought out the life estate of Nancy Allen, that life estate Became merged in the remainder. Before a merger of one estate into another can take place, both estates must be owned, not only by the same person, but in the same right. ,Iiere Pool and Morris owned the life estate of Nancy Allen in their own right, for they bought it, but they owned the remainders of their wives in right of their wives. ■
But we consider both of the last mentioned errors to be very immaterial in the view we take of this case. The proposed amendment aimed to abandon Pool’s claim for a new division of the negroes, and to rely solely on the wife’s equity, while we think that in any one of the state of facts claimed as existing in this case, the wife’s equity is gone, and the only case which the complainants can maintain is Pool’s claim for the new division. Hence also, the question of merger, is immaterial, for it apples only to the wife’s equity, which we think is effectually controlled by other principles. If there has been no division, the wife's equity is gone, for the life-tenant, Mrs. Allen, is confessedly dead, and all of the negroes were in the possession of Pool and Morris, a part in Pool’s and a part in Morris’s possession, before this bill was brought. But Pool and Morris, in right of their wives, are joint tenants of the remainder, and the possession of one joint tenant is the possession of all. The negroes in *383possession of Pool after his right of possession had accrued in remainder, as it did immediately upon the death of the life-tenant, were in possession of all the joint tenants in remainder; and those in possession of Morris were in possession of all, that is to say, in possession of Pool. Pool then, was in possession of all the negroes, and the possession and right of possession, being united in the husband, his estate became perfect, exempt from the wife’s equity. The union of possession and the right of possession in the husband, always bars the wife’s equity. But again, suppose there was a division of the life estate only, as the complainants contend was the fact.' Then the same consequence follows. When Mrs. Allen died, all the negroes were in possession of Pool, either in his own person or through his joint tenant Morris, and the right of possession to the remainder at that time, also fell to him, and the same union as before, taking-place, the same consequence follows. Again, suppose the division included both life estate and remainder, as the defendant contends was the fact, and the same effect is produced on the wife’s equity. In this case, Morris was not holding the negroes as joint tenant when Mrs. Allen died, but was holding as his own in severalty. But he was holding under a conveyance from Pool, for the division, if it included the remainder, amounted to a conveyance to Morris of Mrs. Pool’s estate in those negroes which were assigned to Morris. It was a conveyance which Pool could never recall; it effecually carried Ms interest from the first. Then at the death >f Mrs. Allen, Morris stood clothed with Pool’s right of possession, and he had the actual possession in his own person. Igain therefore, the possession and the right of possession vere united in the same person; not in the husband, to be sure, but in one who derived his right from the husband. The husband’s act united the two things in another person. This union, whether it takes place in his own person or in the person of another, is equally effectual to bar the wife’s equity. This is obvious from a consideration of what that *384equity is, and in what cases it can be asserted. It is only in cases where the estate cannot be reduced to possession of the husband or his assignee, without the aid of a Court of Chancery. When the husband or his assignee applies to the Court for the enforcement of his rights, the Court compels him to make an equitable settlement before it lends him its aid. The jurisdiction has been extended, so that the wife herself may move in the matter, whether the husband moves or not; but'she can get the remedy only in cases where the husband would be obliged to resort to the Court to enforce his rights, if they are resisted. That is to say, she can never assert her equity in cases where the husband or his assignee already have the possession, and the right of possession, and where consequently there can be no possible occasion to resort to the Court in order to have anything further done-The death of the life-tenant was the time when the wife’s equity was lost in each of these supposed cases.
[4.] The only remaining question is one on which the whole case turns. We think it was error in the Judge to refuse to charge as requested by complainant, that the division which was made by Pool and Morris and young Allen, in the lifetime of Mrs. Allen, must be presumed to have included only the life estate which they had the power to divide with completeness and finality at that time, and not the remainder which they had no power so to divide before the death of Mrs. Allen. The division was of course meant to be a complete one of whatever was divided, unless the contrary appears. The life estate could have been completely divided at that time, nothing else being necessary to ren der it perfect, but the remainder could not have been so divided at that time, for that division could not be compleG till the death of Mrs. Allen, since up to that event, either c the wives could have disturbed it, by asserting her equity. It is a rational presumption, that men intend to do tha t which they have a right and power to do, rather than whe ¡ *385is beyond their right or power. This presumption must prevail till rebutted by affirmative contrary evidence.
These principles dispose of all the questions raised by the bill of exceptions.
Judgment reversed.