Badgett and Wife vs. Keating and Wife. for its payment, no preference is given. Yet that there are cases where the debt may be collected without filing the claim, and sharing in the distribution of the assets, is undoubtedly true. As where the creditor holds a mortgage on property of deceased, or where property has been pledged to secure the payment of the debt, or where there has been a recovery and an execution issued and levied in the life time of the deceased, in each of these cases, the property thus bound may be sold after the debtor's decease, in satisfaction of the debt. In each of these cases the creditor has acquired a lien, and the specific property has been appropriated either by the debtor, or by the law, for its satisfaction, and the death of the debtor can in no wise affect the rights of the creditors." The judgment must be reversed, and the cause remanded to the court below with instructions to sustain the demurrer to the petition to recall and quash the vend. ex., and permit appellant to take out an alias vend, ex. BADGETT AND WIFE VS. KEATING AND WIFE. Miles Killian, and Elizabeth, his wife, for a nominal consideration expressed in the deed, conveyed certain land belonging to the wife, to Badgett, upon the following trusts: "That the said Killian and wife, for and during their natural lives, respectively, without impeachment of or for any manner of waste, should have, hold and enjoy said tract of land, * * and receive and enjoy the rents and profits thereof; and, upon trust also, that the said Badgett, upon the written request of said K. and wife, or the survivor of either of them, may, at any time, and shall, upon such request, mortgage or sell the said tracts of land, or any part thereof; and the said K. and wife, or the survivor, to receive the entire consideration received upon such mortgage or sale: And said trustee, or any one that may be appointed, shall have full power to make valid title in such cases, and if no such disposition shall be made thereof, then, at the expiration of said life estate, the remainder shall descend to the heir of said Elizabeth Killian." The wife had no children by K., and *Badgett and Wife vs. Keating and Wife. died, leaving one daughter, the issue of a former marriage; K. married again, and, for a nominal consideration, conveyed the trust estate to one Moore who, on the same day, for the like consideration, conveyed it to K.'s second wife; the trustee died without having executed his trust by mortgage or sale. Held: First-That Killian was merely a nominal party to the deed of trust, and not properly a cestui que trust, because the legal estate did not pass from him to Badgett, the trustee, but from the wife, in whom the equitable estate remained. Second-K. acquired a life interest in the rents and profits of the land, and, upon sale or mortgage, in the money realized therefrom. Third-There being nothing for the trustee to do under the provisions of the deed, but to carry out its directions according to the letter, it created an executed trust: and it seems rather to have reserved the rents and profits to the grantors, than to have entrusted the collection of them to the trustee. Fourth-The effect of the deed was to separate the legal from the equitable estate; to vest the first in the trustee; the second in the cestui que trust, Mrs. Killian. Fifth-Declarations of trust are construed in the same manner as common law conveyances, and the trust estate is governed by the same rules; the cestui que trust is seized absolutely of the freehold. in contemplation of a court of equity. Sirth-A trust once created attaches to the legal estate, and cannot be detached from it and extinguished, except by the union of the two estates in one person, when the equitable, will merge into the legal estate. This rule excludes the idea of the legal and equitable estate uniting in K., he never having been seized of a legal estate, could not, as cestui que trust, hold an equitable estate. The only estate held by him at the time of the execution of the deed to Moore, was the life interest acquired under the deed of trust. Seventh-Badgett could not, by denying the validity of K.'s deed, renounce the trust. A trust, once accepted, cannot be renounced by the trustee, or his heirs, upon whom it is cast at his death; nor can he discharge himself of it without the consent of the cestui que trust, or the court. Eighth-The power to sell was to be invoked by a request in writing. It must be a request to mortgage or sell, not to ratify a sale made by another. As regarded price, and time, and manner of sale, a discretion was vested in the trustee. Ninth-Upon proper application, the trustee might have been required to mortgage or sell; but this not having been done during his life, the estate in remainder passed to and vested in the heirs of Elizabeth Killian. Tenth-The deed from Killian to Moore was inoperative, and, upon his death, Mrs. K. having died previously, the purposes of the trust were completed; nothing remained to be done, and the legal estate passed to, and united with the equitable estate, in the heir of Mrs. K., to whom the estate was limited in remainder. Vol. XXXI.-26. Badgett and Wife vs. Keating and Wife. APPEAL from Pulaski Chancery Court. Hon. JOHN R. EAKIN, Chancellor. Wassell & Moore, and T. D. W. Yonley, for appellants. WALKER, J.: Badgett and wife brought this action in ejectment for the possession of certain lands therein described, to which Keating and wife interpose an equitable defense, asserting title in the wife to the same lands, and, upon their motion, the cause was transferred to the equity court. The answer was made a cross bill; plaintiffs filed an amended complaint, and an answer to the cross bill. The cause was heard before the chancellor upon the pleadings, exhibits and an agreed state of facts, upon consideration of which, the chancellor decreed in favor of the defendants, from which decree the plaintiffs appealed to this court. The facts upon which the respective parties claim title to the land in controversy are, that before the 28th of May, 1861, Elizabeth McLain was the legal owner of the lands in controversy, and continued to own them until the time of her marriage with Miles Killian; that after such marriage, on the 28th of May, 1861, Killian, and his wife Elizabeth, for the consideration of one dollar, and for other good considerations, conveyed said lands by deed to William B. Badgett in trust, that the said Killian and wife, for and during their natural lives, respectively, without impeachment of, or for any manner of waste, should have, hold and enjoy said tract of land, with the hereditaments and appurtenances, and receive and enjoy the rents and profits thereof; and upon trust also that the said Badgett, upon the written request of said Killian and wife, or the survivor of either of them, may, at any time, and shall, upon such request, mortgage or sell the said tracts of land, or any part thereof, and the Badgett and Wife vs. Keating and Wife. said Killian and wife, or the survivor, to receive the entire consideration received upon such mortgage or sale; and said trustee, or any one that may be appointed, shall have full power to make valid title in such cases, and if no such disposition shall be made thereof, then, at the expiration of said life estate, the remainder shall descend to the heir of said Elizabeth Killian. The plaintiff, Lucetta Badgett, was the only heir of Elizabeth Killian, by a former marriage. So far as appears, Elizabeth had no children by her marriage with Killian, and died in the year 1862. On the 26th of February, 1866, Killian married the defendant, Ruth A. Keating. On the 28th of February, 1868, for the consideration of one dollar, he conveyed the lands in controversy, by quit claim deed, to James S. Moore, who, on the same day, conveyed said lands by deed, for a like consideration, to Ruth A. Keating, then the wife of Miles Killian. In less than a month after this Killian died, and, on the 5th of May, 1869, defendant Keating and Ruth, the widow of Killian, were married. William B. Badgett, the trustee, after the death of Killian also died without having executed his trust by either mortgage or sale. The plaintiff, Noah H. Badgett, married Lucetta, the daughter and heir at law of Elizabeth Killian. It is under this title Lucetta and her husband assert title to the lands in controversy. The title set up by defendants is by deed from Miles Killian, executed after the death of his wife Elizabeth. The title held by Killian, and his right to convey, is a question of paramount importance in determining the issue involved. If the title to the land was in Killian, then the heir, Lucetta Badgett, acquired no estate in the remainder, after Killian's death. A decision of the case turns upon this question. Badgett and Wife vs. Keating and Wife. That the lands belonged to Elizabeth Killian, and that Lucetta Badgett was her sole heir by a former marriage, and was married to Noah H. Badgett, are conceded facts. Miles Killian and Elizabeth, his wife, had no children of that marriage, and, consequently, Killian, at the time of joining his wife in making the deed of trust, had no estate in the lands by courtesy, but only a right to rents and profits during the life of his wife. The lands were the property of his wife; she alone had power to declare a trust upon them. Washburn on Real Property, vol. 2, p. 270, says: "Upon the question who may make a declaration, or create a trust, which shall attach to an estate, it may be stated in the first place, that it must be one who has the legal title in the same; his act is the source, or origin, of two estates, which flow on afterwards independent of each other, in point of ownership, until they merge by being again united in one person." Killian was a mere nominal party to the deed, and was not properly a cestui que trust, because the legal estate did not pass from him to Badgett, the trustee ; it was the wife's property, and the equitable estate remained all the time in her. By the terms of the deed, Killian acquired a life interest in the rents and profits of the land, and, also, upon mortgage or sale, the money received for the same. The trust is what is ordinarily termed an executed trust, that is, a trust in which all of the directions for its execution are given, so that the trustee has nothing to do with it but to carry out the provisions of the trust, according to its letter. Perry on Trusts, vol. 1, p. 44; 2 Washburn, p. 452; and at page 426, Washburn excepts cases where the cestui que trust is a femme covert, and, in illustration, says: "A grant, or devise, to A in trust for B, or to permit B to take the rents and profits, would be an executed trust in B, unless B was a femme covert, when, in order to carry out the grantor's or |