and his heirs, and comprehends the whole estate. By the terms of the will, there was devised to the heirs an equitable remainder after the determination of the equitable life estate given to their ancestor. The trustee took the legal estate for the use of the testator's daughter during her life and for the use of her heirs afterwards. But for the heirs it was a mere dry trust, and the remainder was executed in them as a legal estate under the statute of uses. A use executed by the statute is a legal estate to all intents and purposes, as much as if it had been given by the instrument creating the estate without the intervention of a trustee. Where lands are given in special trust for the life of one person, and after his death in general trust for the heirs of the same person, the latter use being within the statute, and the former not, the estates are of different qualities, and the rule in Shelley's Case cannot apply. Such precisely was the case of Lady Jones v. Lord Say and Seal, 1 Eq. Cas. Abr. 383, where the word "heirs" was held for that reason to be a word of purchase, and not of limitation. The remainder in this case was therefore legal, and if the life estate was not also legal, the opinion of the common pleas that the first taker had but a life estate was right.

Special trusts are not within the statute of uses; and a trust to hold for the separate use of a married woman is special: Harton v. Harton, 7 T. R. 652. If, therefore, the testator's daughter had died during her coverture, this case would have been clear enough. But her husband died in 1821. When she became sole the trust for her separate use ceased; it was no longer a special trust, and the legal estate vested fully in her. It was held by this court in Mark v. Mark, 9 Watts, 410, that where an estate was devised for the use of children, there being a special trust until the youngest came of age, the children acquired the legal title when that event happened. This is in accordance with the doctrine in England, where it is laid down in Ross v. Parker, 1 Barn. & Cress. 360, as a general rule, that when an estate is devised to trustees for a particular purpose the legal estate vests in them as long as the execution of the trust requires it, and no longer.

Here, then, we have the case of a devise giving an equitable estate for life to one person, and remainder, also equitable, to her heirs. But the remainder immediately became an executed legal estate in the heirs, while the life estate was executed not immediately, but some time afterwards. Both were legal estates at the time of the first taker's death, and at the time of her conveyance in fee to the defendant. Does this state of things leave the case within the exception which says that

the two estates cannot unite unless they be of the same quality? It is somewhat curious that no direct authority can be found on this point. A dictum of Lord Hardwicke in Spencer v. Bagshaw, 2 Atk. 270, has been cited to the effect that nothing which happens after the death of the testator can change the estates of the devisees. But that case can hardly be considered as authority, for it has been in effect overruled by several later decisions, and it has not stood the test to which the criticisms of the textwriters have subjected it: Fearne on Cont. Rem. 121; Hays' Ent. Tab. 2, No. 47; 2 Kent's Com. 219. Besides, Lord Hardwicke was speaking of changes produced by the acts of the parties which made a question not at all analogous to this.

This is not a question of interpretation, in which the object is to get at the meaning of the testator. If it were, and if the will afforded us no other means of judging, we might consider the difference in the qualities of the two estates, though existing only for a time, as a strong argument for the plaintiff. But we are considering the application of a rule of law-a rule which often disregards the intention, however clearly expressed. We have no doubt what was meant by this will. Like ninety-nine in a hundred of the cases to which the rule in Shelley's Case, has been held to apply, it was the purpose of the testator to give the first object of his bounty a life estate merely. But the law will not treat that as an estate for life which is essentially an estate of inheritance, nor permit any one to take in the character of heir unless he takes also in the quality of heir. It does not stand with the interest of the state that lands so devised should be tied up from alienation during the life of the first taker and the minority of his heirs.

It is to be observed that this case is literally within the rule as laid down by the judges in Shelley's Case. The testator's daughter took an estate for life under the will, and in the same instrument there is a limitation of the fee to her heirs by way of remainder. The life estate she took was legal after the special trust had ended, and there was then nothing in the quality of the two estates to prevent them from uniting. I have said that a use executed under the statute is a legal estate. Can it make any difference that it was not executed immediately, if it was executed at all within the period of its duration? I cannot see why it should. Chancellor Kent, 2 Com. 215, says the rule applies whether the ancestor takes the freehold by express limitation, by resulting use, or by implication of law. His name will perhaps establish any legal proposition not opposed by the

AM. DEC. VOL. LXVII-29

judicial authorities; and if he be right in this, it is manifest that the words of Lord Hardwicke have been understood by the plaintiff's counsel in too broad a sense.

On the whole, we are of opinion that the testator's daughter, having taken under the will what became after the death of her husband a legal estate for her life, and the remainder in fee being also legal, and limited to her heirs by the same instrument, the two estates united and became a fee-simple estate in her, which therefore she had good right to convey at the date of her deed to the defendant.

Judgment reversed, and judgment here for the plaintiff in error (who was the defendant in the common pleas), with costs of suit.

LOWRIE, J., delivered the following concurring opinion: This is a devise to one in trust for the separate use of the testator's daughter, a married woman, during her life, and then to her heirs in fee. The daughter became single, and then she and her daughter and only child joined in selling it. She outlived her daughter, and died leaving grandchildren, and one of them is now claiming that the deed of his mother and grandmother could convey only an estate for the life of his grandmother. Is it so?

Strike out the trust, and it is a devise to one for life with remainder to her heirs, which is plainly a fee-simple. Now, the trust was struck out by an event involved in the nature of the gift--that is, when the testator's daughter became sole; for then its purpose had been satisfied, and after that the trust stood for the sole benefit of a single woman, and was immediately executed by the statute of uses, and became a legal estate in her.

This is therefore an estate in trust for the daughter during coverture, with remainder to her for life, and remainder in fee to her heirs. It is a gift of a legal freehold to her and them, in the same will, a limitation of the fee to her heirs, which makes a fee-simple in her: Hileman v. Bouslaugh, 13 Pa. St. 351 [53 Am. Dec. 474]. And we need not say what would be the effect if the estates were of different qualities. When, therefore, she sold the land to Steacy she had full right to sell.

RULE IN SHELLEY'S CASE, WHEN AND WHERE OPERATES: See Ware v. Richardson, 56 Am. Dec. 762, and cases cited in note 781.

STATUTE OF USES, EFFECT TO EXECUTE USE AND TO VEST LEGAL TITLE: See Chapman v. Glassell, 48 Am. Dec. 41; Moore v. Schultz, 53 Am. Dec. 448, and note; Ware v. Richardson, 56 Id. 762,

DEVISE IN TRUST TO WOMAN, WHAT PASSES BY, EFFECT OF MARRIAGE, AND OF SUBSEQUENT DEATH OF HUSBAND: See Whichcote v. Lyle's Ex'rs, 28 Pa. St. 87; Bush's Appeal, 33 Id. 87; McKee v. McKinley, Id. 93; Kay v. Scates, 37 Id. 37; Barnett's Appeal, 46 Id. 406; Freyvogle v. Hughes, 56 Id. 230; Megargee v. Naglee, 64 Id. 218; Estate of Harris, 3 Phila. 327, where the principal case is cited and followed on this point.

GERMAN V. GERMAN.

(27 PENNSYLVANIA STATE, 116.]

LIFE ESTATE IN PERSONAL PROPERTY GIVES DONEE RIGHT TO CONSUME the same where it cannot be used without consuming it, or to wear it out where it cannot be used without so doing.

LIABILITY OF LIFE TENANT OF PERSONALTY OVER TO REMAINDERMAN is governed by the intention of the donor, as manifested by the instrument which evidences the gift.

WHERE LIFE ESTATE ONLY IN PERSONALTY IS GIVEN, AND REMAINDER IS Given over to OTHERS, the representatives of the donee for life should account for the value of the property according to the principles of the civil law, as adopted by the courts.

INTENTION OF TESTATOR IN MAKING BEQUEST IS TO BE ASCERTAINED, not from particular clauses of the will, but from the whole instrument; and where seemingly repugnant clauses appear, the last is to be regarded as expressing his final design on the subject.

PROVISION IN TESTATOR'S WILL, GIVING TO HIS WIDOW PRIVILEGE TO CHOOSE AND KEEP DURING HER WIDOWHOOD "all such personal property as she may think proper," and directing that "all such property as may then be left” shall be sold by his executors, entitles the widow to such property without security for such articles as may be consumed or disposed of during her life or widowhood; but under such a bequest the widow is not entitled to take money in testator's possession at his death, nor choses in action.

ACTION on agreed case, between the widow of a testator as plaintiff and the executors under testator's will as defendants, to determine what will pass to plaintiff under certain bequests in said will. The further facts appear in the opinion.

Merrill, for the plaintiff in error.

Slenker, for the defendant in error.

By Court, LEWIS, C. J. Personal property is so transitory and destructible in its nature that a right to enjoy it during life necessarily carries with it privileges which do not belong to the grant of a life estate in land. A life estate in personal property undoubtedly gives the donee a right to consume such articles as cannot be enjoyed without consuming them, and a right to wear

out by use such as cannot be used without wearing out. But the extent of liability over to the remaindermen is to be governed by the intention of the donor, as manifested in the instrument which evidences the gift. It is in general a just rule, that where a life estate only is given, and the remainder is given over to others, the representatives of the donee for life should account for the value of the property according to the principles of the civil law as adopted by the courts: Just. Inst., b. 2, tit. 4; Domat., pt. 1, b. 1, sec. 989; Civ. Code La., art. 542; Frederician Code, pt. 2, b. 4, tit. 5, sec. 3; Holman's Appeal, 24 Pa. St. 178. Where the parties claim under a will, the intention of the testator is to be collected, not from particular clauses, but from the whole instrument; and where seemingly repugnant clauses appear, the last is to be regarded as expressing his final design on the subject.

By the will of John German, his wife Barbara was to have "the privilege to choose and keep during her natural life or widowhood all such personal property as she may think proper." If this clause was the only one in the will bearing on the question, the widow's estate might be held to some measure of accountability for the articles used, consumed, or disposed of during her life. But nothing is given over at her death except "such property as may then be left." When it is considered that the testator professed an intention to dispose of his whole estate, the implication seems clear that the widow's representatives were not to be held accountable for anything beyond the articles "left" at her death. Any other construction by which a claim upon her estate is reversed would leave her husband intestate as to such claim; and this is manifestly contrary to his intention.

But the personal property which the widow is at liberty to choose does not include money in possession or choses in action. The clauses of the will directing the sale of the articles not selected by her, as well as those which may be left at her death, show that the testator in this part of his will did not intend to embrace any other than such articles as are usually sold by executors for the payment of debts and for the purpose of distributing the proceeds. The note of Peter German, ninetyeight dollars and four cents, and the cash for wheat sold, two hundred and twenty-one dollars and nine cents, must therefore be deducted from the amount claimed by the plaintiff in error, and judgment should be entered in her favor, without security any kind for the residue.

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