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or New York. Lord ELDON himself, in Sherwood v. Sanderson, 19 Ves. 286, declared it to be settled that, if the jury merely find the incapacity of the party to manage his affairs, and will not infer, from that and other circumstances, unsoundness of mind, (which he said has the same effect as idiocy or lunacy,) though the party may live where he is exposed to ruin every instant, yet, upon that finding, the commission cannot go on. For the reason, therefore, that the jury did not find that Mrs. Lindsley was an idiot, or a lunatic of unsound mind, or that her mind was so impaired as to render her incapable of governing herself, as well as her property, we think that the inquisition did not justify the appointment of a guardian both of her person and of her estate, as the statute requires, and hence that it was properly set aside. Unanimously atfirmed.

(44 N. J. E. 525)

MELICK et ux. v. PIDCOCK. (Court of Errors and Appeals of New Jersey. August 6, 1888.) 1. DEEDS—CONSTRUCTION-FEE-SIMPLE.

In a will a fee-simple will pass without the word “heirs,” for in a will a fee-sim. ple doth pass by the intent of the devisor; but in the creation of an estate by deed

the word “heirs" is necessary to pass the fee. 2. TRUSTS—CONVEYANCES TO USES-CONSTRUCTION.

Conveyances to uses are construed in the same manner as deeds, deriving their

effect from the common law. The word “heirs” is necessary to create a fee. 3. SAME-ESTATE OF TRUSTEE.

But where the conveyance is in trust, the trustee will take a legal estate in fee if the trust limited upon it be to the cestui que trust and his heirs. The words of limitation and inheritance in such case, although they are connected with the es. tate of the cestui que trust, will be held to relate to the legal estate of the trustee

in order to give effect to the intention of the parties. 4. SAME.

M., the owner of lands, made a mortgage upon them. He then conveyed the premises by deed to S., party of the second part, in trust for C. and C., children of the grantor, for their use and benefit, and their heirs as tenants in common, "to have and to hold unto the party of the second part, in trust as aforesaid, for the said c. and C., their heirs and assigns, forever. Held, that C. and C. took an equitable estate in fee-simple, and S. a legal estate in fee, and that by the statute the trust

was executed, and the legal estate vested in the cestui que use. 5. SAME-MORTGAGE-FORECLOSURE-SALE-TITLE OF PURCHASER.

That a purchaser at a sale, in the foreclosure suit to which C. and C. were parties, acquired the estate of the mortgagor, and also the fee in the equity of redemp. tion.

MAGIE and PATERSON, JJ., dissent. (Syllabus by the Court.)

Appeal from court of chancery; decree advised by advisory master, WILLIAM S. GUMMERE.

Bill to foreclose a mortgage. See 7 Atl. Rep. 880, for opinion on motion to strike out answer.

James J. Bergen, for appellants. J. G. Shipman and A. C. Hulshizer, for respondent.

DEPUE, J. Tunis D. Melick, on the 20th of April, 1878, made a mortgage to his father, Peter W. Melick, upon certain lands in the county of Hunterdon, which he had acquired under the will of his grandfather. The mortgage was assigned by Peter W. Melick to Fisher Pidcock, the complainant, on the 24th of July, 1884. Subsequent to the making of the mortgage, and prior to the assignment to Pidcock, to-wit, on the 15th of May, 1878, Tunis conveyed the mortgaged premises to Sarah Ann Studdiford, in trust. The deed of conveyance was an indenture of bargain and sale between Tunis D. Melick, of the first part, and Sarah Ann Studdiford, of the second part, whereby the party of the first part, for the consideration of one dollar, did grant, bargain, sell, alien, release, convey, and confirm all that certain in

terest or remainder devised to him by his grandfather in the premises unto the party of the second part, in trust nevertheless for the two children of Tunis D. Melick, Clarence and Caroline, for their use and benefit, and their heirs, as tenants in common, in equal shares and proportions;

it being intended by this indenture to convey the same subject only to such charges and incunibrances as by said last will and testament are set out, it being the object of the said party of the first part to convey all his right, title, and interest therein, with the appurtenances, to have and to hold the aforesaid premises, with the appurtenances, unto the party of the second part, in trust as aforesaid for the said Clarence and Caroline Melick, their heirs and assigns, forever. In this condition of the title, Pidcock, on the 19th of August, 1884, filed a bill to foreclose bis mortgage, and for the sale of his mortgaged premises. To this bill Clarence and Caroline Melick, the cestui que trust, were made parties, and tiled answers. Sarah A. Studdiford died before the bill was filed. Tunis D. Melick was not made a party, he having conveyed by the trust deed his interest in the mortgaged premises. A final decree for the sale of the mortgaged premises was made October 2, 1885. On this decree execution issued to the sheriff of Hunterdon, who made sale of the premises on the 25th of Jannary, 1886. At this sale the complainant became the purchaser. The sale was confirmed by the court, and a d ed in pursuance thereof made and delivered to the complainant. Tunis D. Melick was in possession of the mortgaged premises at the tune of the foreclosure sale, and the complainant applied to the court for a writ of assistance against Tunis D. Melick to have possession of the premises delivered to him. A writ of assistance was refused, on the ground that, there being no word of inheritance in the grant to Mrs. Studdiford, upon her death the interest of the grantor devolved upon him again, and the rights of the cestui que trust terminated. 4 Atl. Rep. 98. The complainant thereupon filed this bill, which is a bill of strict foreclosure, as distinguished froin the usual bill for foreclosure and sale. Its prayer is that Tunis D. Melick may be decreed to pay the complainant the amount due him for principal and interest on the mortgage, and that in default thereof the said Tunis D Melick, and all persons claiming by, for, or under him, may be barred and foreclosed of and from all equity of relemption in the inortgaged premises. To this bill Tunis D. Melick and Sarah M. Melick, his wife, were maile parties. Mrs. Mel.ck was made a party as the assignee of a juilgment recovered on the 6th of April, 1886, by James J. Bergen against Tunis D. Melick, for a debt incurred by Tunis D. Melick prior to the execution of the complainant's mortgage. Tunis D. Melick and Sarah M. Melick both answered the bill, setting up that the complainant's mortgage was made without consideration, and with ihe intent to defraud creditors. Mrs. Melick further, by way of cross-bill, set up that she was also the owner of a judgment recovered by Kline Melick against Tunis D. Melick on the 4th of June, 1878, and asked a decree establishing the priority of both judgments over the complainant's mortgage for the reason above mentioned. The latter judgment was held by Peter W. Melick at the time the original foreclosure suit was begun, and he was made a party to that suit as owner of this judgment. Mrs. Melick's status in this suit depends, therefore, upon the judgment recovered by Bergen, and that judgment was recovered after the decree in the original suit, and after the execution sale and the sheriff's deed to the complainant.

The deed froin Tunis to Mrs. Studdiford conveyed to her an estate upon a simple trust, without any discretionary powers or active duties to be performed by the trustee. Under such a conveyanıe the incidents of the trustestate are a jus habendi, or right of actual possession in the cestui que trust; and also the jus disponendi, or right in the cestui que trust tu require the trustee to convey to the legal estate as the cestui que trust may direct.-Lewin, Trusts, 18. The trust in its nature and quality is such as would be executed by the statute. Revision, p. 165, par. 66. The trust, as declared in the deed, is for the use of Clarence and Caroline, and their heirs and assigns, forever; words which, in a legal estate, would create a fee. In construing the limitation of trusts, courts of equity adopt the rules of law applicable to legal estates. Cushing v. Blake, 30 N. J. Eq. 689. On the assuinption that the trustee took only a legal estate for life, Clarence and Caroline took an equitable estate in fee-simple. It is clear that the equitable estate vested in them did not terminate at the death of Mrs. Studdiford even if she took by the deed only an estate for her life; for it is a maxim in equity that a trust once created shall not fail for want of a trustee, and the court will follow the estate into the hands of a legal owner, whoever he may be, and compel him to give effect to the trust by the execution of proper assurances, unless the legal estate has gone to a bona fide purchaser for value. 2 Lewin, Trusts, 833. In Weller v. Rolason, 17 N. J. Eq. 13, the testator directed his executor to invest the residue of his estate in the purchase of a house and lot to belong to his widow during her widowhood, and on her death to be sold and equally divided among his chudren. The executor made the purchase, and took a deed to himself, as executor, without words of inheritance. The executor and the widow having died, on a bill filed by the testator's children, to have the lands applied to the purposes of the trusts declared in the testator's will, a decree was made against a purchaser from the grantor's heirs, having knowledge of the trust, that a conveyance be made in fee, and that the lands be sold, and the proceeds applied to the trusts declared in the testator's will. If Mrs. Studdiford took only a life-estate by the deed, and the legal title reverted to the grantor on her death, the trust-estate in his children was not thereby destroyed. The lands would remain in the grantor's hands charged with the trust. Nor did the trust deed, upon a construction of all the limitations contained in it, grant to Mrs. Studdiford only an estate for life. It is undoubtedly the common-law rule that an estate of inheritance cannot be created by deed without the word "heirs." In a will, an estate of inheritance may pass, without the word "heirs,” for in a will a fee-simple duth pass by the intent of the devisor; but in feuffments and grants the word “heirs" is the only word that will make an estate of inheritance. Co. Litt. 8, 96. The rule of the common law that, in the creation of an estate by deed, the word “heirs" is necessary to pass the fre, has not been altered in this state by statute, nor lias it been modified or relaxed by judicial construction. No synonym can supply the omission of the word “heirs, nor can the legal construction of the grant be affected by the intention of the parties. Keurney v. MaComb, 16 N. J. Eq. 189; Adams v. Ross, 30 N. J. Law, 505; Sisson v. Donnelly, 36 N. J. Law, 433, 434. But it is also a maxim of the highest antiquity in the law that all deeds shall be construed favorably, and as near the apparent intention of the parties as is possible, consistent with the rules of law. 4 Cruise, Dig. 272. To create a fee, the limitation must be to “heirs;" but it may be either in direct terms, or by immediate reference, and it is not essential that the word "heirs" be located in any particular part of the grant. 4 Kent, Comm.6; 2 Prest. Est. 2; Shep. Touch. 101; 4 Com. Dig. “Estate,” 10, (A 2;) 3 Bac. Abr. 425, “Estate, B. In Doe v. Martin, 4 Term R. 39-65, the deed of settlement was “to the use of all and every the child or children of a marriage, equally, share and share alike. If more than one, as tenants in common, and not as joint tenints; and, if but one child, then to such only child, his or her heirs and assigns, forever.” The words “his or her heirs,” considering, as was said by Lord KENYON, “the whole settlement and the manifest intention of the parties, were allowed to op-rate as wurus of limitation on all the preceding words of the sentence. Conveyances to uses are construed in the same manner as deels, deriving their effect from the common law. 4 Cruise, Dig. 258. The word “heirs" is necessary to create a fee. But, where the conveyance is in trust, the trustee will take the legal estate in fee, although ted to him without the word “heirs,” if the trust which he is to execute be to the cestui que trust and his heirs. The words of limitation and inheritance in such case are connected with the estate of the cestui que trust, but are held to relate to the legal estate of the trustee, because without such construction the trustee would not be able to execute the trust. 1 Washb. Real Prop. 57; Newhall v. Wheeler, 7 Mass. 189; Stearns v. Palmer, 10 Metc. 32; Cleveland v. Hallett, 6 Cush. 404; Welch v. Allen, 21 Wend. 147; Neilson v. Lagow, 12 How. 98-100; North v. Philbrook, 34 Me. 537. Stearns v. Palmer, supra, is very like the present case. By a deed of bargain and salę lands were conveyed to A., B., and C., in trust for the inhabitants of the parish of S., for a burying-ground, forever; “to have and to hold the said lands to them the said A., B., and C., in trust for the use of the inhabitants of said parish and their heirs, forever, as a burying-yard.” It was held that the deed conveyed to A., B., and C. a fee-simple estate. WILDE, J., said: “The words 'their heirs' in the deed may be construed as applied to the immediate grantees, and ought to be so construed to effectuate the clear intention of the parties.”

The rule of construction adopted in the foregoing cases applies as well to a grant upon a simple trust as to grants with special powers or active duties in the trustee, and is not a whit more liberal than that adopted by the king's bench in Doe v Martin, in the construction of the successive limitations, to effectuate the manifest intention of the parties. Conveyances upon simple trusts are regarded in law as grants for the benefit of the cestui que trust. In every such conveyance the intention of the grantor is to give the quantum of the estate limited in the declaration of use. The estate of the trustee and the use limited upon it are parts of one entire conveyance, the trustee's estate being subsidiary to the purpose of the trust. A construction which will apply words of inheritance in the trust to the trustee's estate is absolutely necessary to give effect to the intent of the grantor. Our statute, which extends to every person to whom the use in lands is given, granted, limited, released, or conveyed by deed, grant, or any other legal conveyance whatsoever, and converts the equitable estate into a legal estate, should have great weight, if not a controlling effect, upon the construction of a deed to uses within its purview. Revision, p. 165, par. 66. A use expressed in words of inheritance demonstrates that the grantor, by his deed, intended to convey a fee. The statute declares that the grantees to whom the use is given, limited, granted. or conveyed shall be deemed in as full and ample possession, to all intents, constructions, and purposes, as if such grantees, their heirs and assigns, were possessed thereof by solemn livery of seizen and possession. Unlike the English statute of uses, (27 Hen. VIII, c. 10,) our statute acts upon the use granted, without referring to the trustee's estate, and converts the former into a legal estate. There is nothing in Adams v, Ross or Kearney v. MaComb contrary to this view. In Adams v. Ross the word "heirs” was neither in the granting part of the deed nor in the habendum. It was found only in the covenants for title annexed to the grant. Covenants for warranty or for title are mere incidents of the grant, designed for indemnity or security for the estate granted. They can neither enlarge nor narrow the grant, and will themselves be restrained and limited to the estate conveyed. 4 Com. Dig. “Estate," 10, (A 2;) Clanrickard y. Sidney, Hob. 273; Seymour's Case, 10 Coke, 97; Hawle, Cov. 199, 415-524. The decision in Adams v. Ross, in this court, was expressly put upon the ground that covenants for title were no part of the conveyance. The error of the supreme court for which its judgment was reversed was in calling in aid covenants for title to enlarge the grant. In Kearney v. Macomb the deed was to A. K. K., his legal representatives and assigns, to hold the same and the proceeds thereof upon the trusts and conditions set forth in an antenuptial contract. Neither the deed nor the antenuptial contract contained the word "heirs." In both these cases the words indispensable to create a fee in a grant were entirely wanting, and there was

no room for construction. In Weller v. Rolason reformation of the deed was necessary. The deed did not contain the word “heirs, nor did the trust appear in any way in it. Price v. Sisson, 13 N. J. Eq. 168, affirmed in 17 N. J. Eq. 475, decided that a conveyance to grantees and their heirs, for the use of the grantees and their heirs, in trust for persons beneficially interested, did not vest the legal estate in the beneficiaries, because of the common-law rule that when a use is limited upon a use the statute executes only the first use.

In the deed to Mrs. Studdiford the first and only use declared is for the beneficiaries, Clarence and Caroline, and their heirs; and all the authorities, ancient and modern, agree that the statute executes the first use, and converts it into a legal estate, except where the powers and duties conferred upon the donee to uses are such as require in him the legal estate for their discharge. Under the trust deed the children of Tunis took an equitable estate in fee-simple, and Mrs. Studdiford, as trustee, a legal estate in fee, and there was no estate to revert to Tunis on the trustee's death. By the statute the legal estate of the trustee became vested in the cestui que use.

The complainant, as purchaser under the foreclosure decree to which the children of Tunis were parties, acquired the estate of the mortgagor, and also the fee in the equity of redemption. This bill was unnecessary to perfect the complainant's title under the original foreclosure suit. Indeed, in any aspect, the prayer of the bill, which is that Tunis redeem the complainant's mortgage or be foreclosed, is inappropriate. If any relief by bill was needed, the prayer should have been that Tunis convey to the complainant as owner of the equitable estate, and a decree for conveyance would have been as of course. A decree dismissing the complainant's bill for this reason would be inequitable. The defendants' opposition to the allowance of a writ of assistance was on the ground that the complainant's title under the foreclosure was imperfect, and the denial of the writ for that reason cast a cloud upon the complainant's title. The defendants did not demur or object to the bill. The complainant made Mrs. Melick a party to this suit. By her answer and a crossbill she set up that the mortgage held by the complainant was made by her husband without consideration, for the purpose of defrauding his creditors. The complainant answered the cross-bill, joining issue on the allegation in it. The bill may and should, under the circumstances, be treated as a bill by the complainant to remove a cloud upon his title. The master found against the defendants on the merits, and advised a decree for the complainant. The burden of proof is upon the defendants. The testimony is conflicting and unsatisfactory, and in some respect unreliable. The evidence was taken orally, in the presence of the masters, with opportunity to see and observe the demeanor of the witnesses. On a consideration of the whole case, as presented by the testimony, I find no reason to reverse the finding of the master, and the decree advised by him should be confirmed.

MAGIE and PATERSON, JJ., dissent.

MAGIE, J., (dissenting). I vote to reverse the decree below, and for a decree dismissing the original bill filed by Fisher Pidcock. Upon the facts stated in this bill, Tunis D. Melick had no title or interest in the mortgaged premises. For the reason given in the opinion of the majority of the court, it is clear that Tunis D. Melick had conveyed to Sarah Ann Studdiford a fee by implication, in trust for Clarence and Caroline Melick. The judgments of Sarah M. Melick were not entered until after that conveyance. There was therefore no equity to sustain the specific prayer for relief. I do not think the bill ought to be sustained as a bill to put at rest a doubt respecting the title obtained by the previous foreclosure, which was against Clarence and Caroline Melick. That doubt is said to have arisen by reason of the refusal of a writ of assistance, on the ground that Mrs. Studdiford acquired only a

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