Alvuy, J.,
delivered the opinion of the Court.
This is an amicable bill filed by the appellee against the appellants for a specific performance of a contract of purchase of certain real estate in the City of Baltimore. The question presented is as to the sufficiency of the title offered by the vendor, and declined by the vendee; and this question depends upon the construction of two deeds ; the first, from William Key Howard to Charles Howard, dated 6th day of May, 1854, and the second, from William Key Howard and Agnes, his wife, to Charles Howard, dated the 8th of December, 1855.
By the first of these deeds, the estate was granted and conveyed to Charles Howard, his heirs and assigns forever, and, in the habendum of the deed, it was declared to be to him, his heirs and assigns forever, to his and their proper use and behoof, in trust, nevertheless for the uses and purposes therein expressed — that is to say: for the wife, Agnes, of William Key Howard, the grantor, for her life, and, in case the husband should survive the [74]*74wife, then to him for life; and in case there should be any issue of said parties living at the death of the survivor of them, then to the use of such child or children, or their issue, in such proportion as the survivor or longest liver should appoint by will; and, in default of such appointment, then to such children equally ; and, in case William Key Howard and Agnes, his wife, should leave no children or descendants, then to such persons as William Key Howard should appoint, by will; and, in default of such appointment, then to the use of the right heirs of William Key Howard.
By the second deed another piece of property was granted, and the uses and trusts declared were the same as in the former deed ; the only difference being, that in the last deed executed, the estate was simply granted to Charles Howard, his heirs and assigns forever, without the additional words contained in the former deed, “to his and their proper use and behoof,” following the words of limitation.
Mrs. Agnes Howard, the wife, died in 1857, leaving an infant child surviving her, hut which died a short time thereafter, while still an infant. These events occurring, there was a failure of the limitations contained in the deeds, except those to the husband for life, with power of appointment by will, to such persons as he might think proper, and, in default of such appointment, to his right heirs.
In this state of case, in 1859, William Key Howard filed a bill in equity, in the Circuit Court for Baltimore City, against Charles Howard, the only party defendant, to have the trusts under the deeds broken up and surrendered, and to have the legal estate in the property, embraced by both deeds, re-conveyed to him, free and discharged of all the trusts declared in those deeds. And by the decree that was passed, Charles Howard was authorized and required to re-convey to William Key [75]*75Howard the property embraced in the deeds, “ free, clear, and discharged from the trusts of the said several deeds respectively, and the uses therein declared, so that the said complainant may have and hold the said several pieces or parcels of ground, in the same right, interest, and estate as he held the same prior to the execution and, delivery of the said several deeds respectively.” The deed of re-conveyance was accordingly made in pursuance of the decree.
Subsequently, William Key Howard conveyed the property, or nearly all of it, by deed to Mrs. Catharine E. Lee, in fee simple, with covenant of general warranty and for further assurance, and also with covenant against all or any attempt to execute the power of appointment contained in the deeds of trust. The appellee purchased the right and estate of Mrs. Lee, from those holding the estate for her benefit, and it is the title thus acquired that is now made the subject of question in this case.
There are two questions involved: 1st. Whether, by the terms of the deeds of trust, the limitation to William Key Howard for life, and in default of children or descendants of himself and wife, and of the appointments provided for to his right heirs, lie took an estate in fee, either legal or equitable? and, 2nd, Whether, by operation of the decree, and the deed made in pursuance thereof, and the subsequent deed to Mrs. Lee, the power of appointment by will was extinguished?
In neither of these questions do we perceive any room for serious doubt as to the decision required to he made, ypoh settled principle and by force of direct authority.
1. As to the first question: The deeds of trust express 3 money consideration, and profess to be made thereon, though the amounts are merely nominal. The deeds therefore, containing appropriate terms, are to be treated as deeds of bargain and sale. Matthews vs. Ward, 10 Gill & John., 449. And such being their character, the general principle applicable in respect to the operation [76]*76of the St. 27 H 8, ch. 10, known as the Statute of Uses, is well established and familiar. That Statute enacted that any person having any use in lands should be actually seised of the legal estate of the person seised to their use. By long settled construction, an estate cannot be conveyed to one by bargain and sale to the use of another, because the bargainor hmself is seised to the use, and consequently the use to the bargainee is the .first use, and attracts the Statute and exhausts its operation to the extent of the estate limited; the principle being that a use cannot be limited upon a use, — the Statute executing only the first use, and the second and all subsequent uses being but trusts cognisable exclusively by Courts of equity. Matthews vs. Ward, supra. The nature of the estate, says Sanders, (Uses and Trusts, p. 315,) “since the Statute is the same as it was before; that the bargainee is still but a cestui, que use, and though he has a legal, instead of a fiduciary estate, since the Statute, yet, that legal estate is made such by force of the Statute of Uses, and not according to the rules of the common law. Upon this principle, it has been held, and- is now established, that no use can be limited to arise out of the estate of the bargainee to a third person, for that would be to limit a use to arise upon a use. Therefore, if A. bargains and sells in fee to C., to the use of A., (the bargainor,) or to any other person, for life, or in fee, this limitation to the use is void% But though this declaration of the use is void as a use under the Statute, yet it will be supported as a trust in chancery.” To the same effect, and substantially in the same terms, is this principle of construction of the Statute, with illustrations, found to be stated in Gilbert on Uses and Trusts, by Sugden, top p. 347, and in the Touch., pp. 506, 507, and also in Sudg. on Poto. Intro., pp. 10,11; and that principle has been the foundation of numerous decisions. Matthews vs. Ward, supra; Hopkins vs. Hopkins, 1 Atk., 591; Jackson vs. Cary, 16 Johns., 302 ; Croxall vs. Shererd, 5 Wall., 266, 282. See Leonard vs. Diamond, 31 Md., 541.
[77]
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Alvuy, J.,
delivered the opinion of the Court.
This is an amicable bill filed by the appellee against the appellants for a specific performance of a contract of purchase of certain real estate in the City of Baltimore. The question presented is as to the sufficiency of the title offered by the vendor, and declined by the vendee; and this question depends upon the construction of two deeds ; the first, from William Key Howard to Charles Howard, dated 6th day of May, 1854, and the second, from William Key Howard and Agnes, his wife, to Charles Howard, dated the 8th of December, 1855.
By the first of these deeds, the estate was granted and conveyed to Charles Howard, his heirs and assigns forever, and, in the habendum of the deed, it was declared to be to him, his heirs and assigns forever, to his and their proper use and behoof, in trust, nevertheless for the uses and purposes therein expressed — that is to say: for the wife, Agnes, of William Key Howard, the grantor, for her life, and, in case the husband should survive the [74]*74wife, then to him for life; and in case there should be any issue of said parties living at the death of the survivor of them, then to the use of such child or children, or their issue, in such proportion as the survivor or longest liver should appoint by will; and, in default of such appointment, then to such children equally ; and, in case William Key Howard and Agnes, his wife, should leave no children or descendants, then to such persons as William Key Howard should appoint, by will; and, in default of such appointment, then to the use of the right heirs of William Key Howard.
By the second deed another piece of property was granted, and the uses and trusts declared were the same as in the former deed ; the only difference being, that in the last deed executed, the estate was simply granted to Charles Howard, his heirs and assigns forever, without the additional words contained in the former deed, “to his and their proper use and behoof,” following the words of limitation.
Mrs. Agnes Howard, the wife, died in 1857, leaving an infant child surviving her, hut which died a short time thereafter, while still an infant. These events occurring, there was a failure of the limitations contained in the deeds, except those to the husband for life, with power of appointment by will, to such persons as he might think proper, and, in default of such appointment, to his right heirs.
In this state of case, in 1859, William Key Howard filed a bill in equity, in the Circuit Court for Baltimore City, against Charles Howard, the only party defendant, to have the trusts under the deeds broken up and surrendered, and to have the legal estate in the property, embraced by both deeds, re-conveyed to him, free and discharged of all the trusts declared in those deeds. And by the decree that was passed, Charles Howard was authorized and required to re-convey to William Key [75]*75Howard the property embraced in the deeds, “ free, clear, and discharged from the trusts of the said several deeds respectively, and the uses therein declared, so that the said complainant may have and hold the said several pieces or parcels of ground, in the same right, interest, and estate as he held the same prior to the execution and, delivery of the said several deeds respectively.” The deed of re-conveyance was accordingly made in pursuance of the decree.
Subsequently, William Key Howard conveyed the property, or nearly all of it, by deed to Mrs. Catharine E. Lee, in fee simple, with covenant of general warranty and for further assurance, and also with covenant against all or any attempt to execute the power of appointment contained in the deeds of trust. The appellee purchased the right and estate of Mrs. Lee, from those holding the estate for her benefit, and it is the title thus acquired that is now made the subject of question in this case.
There are two questions involved: 1st. Whether, by the terms of the deeds of trust, the limitation to William Key Howard for life, and in default of children or descendants of himself and wife, and of the appointments provided for to his right heirs, lie took an estate in fee, either legal or equitable? and, 2nd, Whether, by operation of the decree, and the deed made in pursuance thereof, and the subsequent deed to Mrs. Lee, the power of appointment by will was extinguished?
In neither of these questions do we perceive any room for serious doubt as to the decision required to he made, ypoh settled principle and by force of direct authority.
1. As to the first question: The deeds of trust express 3 money consideration, and profess to be made thereon, though the amounts are merely nominal. The deeds therefore, containing appropriate terms, are to be treated as deeds of bargain and sale. Matthews vs. Ward, 10 Gill & John., 449. And such being their character, the general principle applicable in respect to the operation [76]*76of the St. 27 H 8, ch. 10, known as the Statute of Uses, is well established and familiar. That Statute enacted that any person having any use in lands should be actually seised of the legal estate of the person seised to their use. By long settled construction, an estate cannot be conveyed to one by bargain and sale to the use of another, because the bargainor hmself is seised to the use, and consequently the use to the bargainee is the .first use, and attracts the Statute and exhausts its operation to the extent of the estate limited; the principle being that a use cannot be limited upon a use, — the Statute executing only the first use, and the second and all subsequent uses being but trusts cognisable exclusively by Courts of equity. Matthews vs. Ward, supra. The nature of the estate, says Sanders, (Uses and Trusts, p. 315,) “since the Statute is the same as it was before; that the bargainee is still but a cestui, que use, and though he has a legal, instead of a fiduciary estate, since the Statute, yet, that legal estate is made such by force of the Statute of Uses, and not according to the rules of the common law. Upon this principle, it has been held, and- is now established, that no use can be limited to arise out of the estate of the bargainee to a third person, for that would be to limit a use to arise upon a use. Therefore, if A. bargains and sells in fee to C., to the use of A., (the bargainor,) or to any other person, for life, or in fee, this limitation to the use is void% But though this declaration of the use is void as a use under the Statute, yet it will be supported as a trust in chancery.” To the same effect, and substantially in the same terms, is this principle of construction of the Statute, with illustrations, found to be stated in Gilbert on Uses and Trusts, by Sugden, top p. 347, and in the Touch., pp. 506, 507, and also in Sudg. on Poto. Intro., pp. 10,11; and that principle has been the foundation of numerous decisions. Matthews vs. Ward, supra; Hopkins vs. Hopkins, 1 Atk., 591; Jackson vs. Cary, 16 Johns., 302 ; Croxall vs. Shererd, 5 Wall., 266, 282. See Leonard vs. Diamond, 31 Md., 541.
[77]*77It is very clear, therefore, that Charles Howard, the bargainee in the deeds of trust, took the legal estate in fee in the property conveyed by those deeds, by force of the Statute of Uses; and that the uses declared and limited therein in favor of Agnes Howard and William Key Howard were mere equitable estates. The words in the first of those deeds, ie to his and their proper use and behoof,” following the words of limitation to Charles Howard and his heirs, when used in deeds of bargain and sale, like those before us, have no particular meaning or effect in determining either the extent of the interest conveyed or the nature and quality of the estate intended to be vested. In such conveyances they serve no office whatever. Doe vs. Passingham, 6 B. & Cr., 305; Jackson vs. Cary, 16 John., 302.
Nor would the result be different if the deed were treated as a feoffment, as has been suggested it should be. The legal estate or seisin would still be executed in Charles Howard; for it is perfectly well settled, that a conveyance by way of feoffment to A. and his heirs, to the use of him and his heirs, will give him the legal estate. It is true, the Statute does in express terms require that one person be seised to the use of another, to make the case in which the trust or use to that other shall be transferred into possession by the Statute. But, notwithstanding the words of the Statute, to use the language of Mr. Sugden, “ there are several cases in which it vests the possession in the very person in whom the seisin is vested: the strict words of the Act, in these instances, appear to have given way to the intention of the parties; and at this day a limitation unto, and to the use of the same person, is considered so clearly to vest the legal estate in him, that an, express declaration, that he should stand seised to the use of another, would only have an equitable operation.” Note 2, by Sugden, to Gilbert on Uses and Trusts, lop p, 369; Sammer’s Case, ¡3 Co. Hep., 56. In such case, “ it [78]*78is not an use divided from the estate, as where it is limited to a stranger, hut the me and the estate go together;” and consequently, the legal estate vests in him to whom, by the words of the instrument, the use is limited, Meredith vs. Jones, Cro. Car., 244; Whetstone vs. Bing, 2 P. Wms., 146; Doe vs. Passingham, 6 B. & Cr., 305.
It being clear, therefore, in any view of the case, that Charles Howard took the legal estate, in trust for the uses declared by the deeds, and the interest or estate in the property conferred upon William Key Howard being merely equitable, the question is, whether the estate for his life, to commence at the death of his wife, so united and coalesced with the ultimate limitation to his right heirs, as to constitute an equitable fee simple in him, notwithstanding the intervening power of appointment? Of this we can entertain no doubt.
The estate limited to him for life and that to his right heirs being both equitable, the rule in Shelley’s Case plainly applies. That rule applies to equitable as well as to legal estates ; and it is now well settled, that the mere power of appointment is wholly ineffective until the power be executed; and in the case of a limitation to one for life, with power of appointment, and, in default of appointment, to his right heirs, the remainder limited to the right heirs will become an executed fee in the taker for life, under the rule in Shelley’s Case, subject to be divested by the exercise of the power. In the case of Cunningham vs. Moody, 1 Ves , 174, Lord Hardwicke, in speaking of the vesting of estates before the execution of powers, said, “nor does the power of appointment make any alteration therein ; for the only effect thereof is that the fee which was vested was thereby subject to be divested, if the whole were appointed.” That case, and the principle of it, were fully adopted in the case of Doe vs. Martin, 4 Dunf. & East, 39, 64.
2. Now, as to the second question: — We entirely agree with the learned Judge below, that the powers of appoint[79]*79ment to, or fclie use declared in favor of, the child, children, or descendants of William Key Howard and Agnos, his wife, must be taken in a collective sense, and not distributively; and that the only child, children, or descendants, contemplated by the deeds, were those of the joint product of William Key Howard and his wife Agnes. And that being clear, if there was nothing moro than the decree, and the deed made in pursuance of it, we should think the power of appointment effectually destroyed, and that William Key Howard would never thereafter he at liberty to exercise it. But the subsequent deed to Mrs. Lee, conveying the property in fee simple, with covenant of general warranty, effectually extinguished the power, if it were not otherwise destroyed. The power was appendant to the equitable fee simple estate of William Key Howard, and by a conveyance of his interest, upon which the power was dependent for its operation, the power was surrendered. In 1 Sugd. on .Poto., sida page 79, it is said: “ Where an estate is limited to such uses as A. shall appoint, and in default of and until appointment, to him in fee, the power is clearly appendant, and, by a conveyance of his interest, would be destroyed.” And in the case of Penn vs. Peacock, Gas. in Pq., temp., Lord Talbot, 41, an estate was convoyed to a trustee in fee, in trust, to pay the rents to the separate use of a woman for life, and after her death, in trust, 1'or such uses as she should by will appoint, and, for want of appointment, to her own right heirs. She joined with her husband in conveying the estate by demise, with a fine, to a mortgagee. And Lord Chancellor Talbot, in holding the power to be extinguished, said: “ Tis very well known, that the operations of fines and recoveries are the same upon trust estates as upon legal estates ; and that being so, it must inevitably follow, that an estate for life limited to the wife, and the remainder limited to her own right heirs, in default of any appointment made by [80]*80her last will, are both disposed of by the fine: That the power was one coupled with an interest and annexed to the inheritance, and so destroyed by the fine-: That a lease and release, or any other conveyance, will carry with them all powers that are joined to the estate.” The same principle was affirmed in the case of Webb vs. Shaftesbury, 3 M. & K., 599.
(Decided 30th June, 1881.)
Upon the whole, we are clearly of opinion, that the decree, and the deed.made in pursuance thereof, re-invested William Key Howard with the full and complete legal estate, and absolute ownership and dominion, in and over the property in question, free, clear and discharged, of all trusts declared by the deeds; and that all powers of appointment therein declared have been completely and effectually extinguished. And as we perceive no valid objection to the title offered by the appellee to the appellants, and think with the Court below that the contract of purchase should be performed, we shall affirm the decree appealed from, with costs.
Decree affirmed, and cause remanded.