Potts, J.
This action is brought to recover possession of one equal undivided third part of a tract of land called Indian orchard, containing about thirty acres.
This tract was conveyed, in 1818, by Joseph Yan Mater and wife to Benjamin B. Cooper and wife, in trust, “ that they, the said Benjamin B. Cooper and Sarah his wife, or the survivor of them, and in case of the decease of both of them, the heirs, executors, or administrators of the said Benjamin B. Cooper, shall and do receive the rents, issues, and profits of the said lot of land during the minority of their children, Ralph V. M. Cooper and Sarah Ann Cooper, and such other child or children of them, the said Benjamin B. Cooper and Sarah his wife, who may hereafter be born, and pay and apply the said rents, issues, and profits for the maintenance and support of the said children now born, or hereafter to be born of them, the said Benjamin B. Cooper and Sarah his wife, and from and immediately after the said children shall arrive at lawful age, then in trust to grant and convey and assure the same to all such of the said children as may then be living, and to the lawful issue of any such child or children as may then be deceased, in equal shares as tenants in common in fee. Such issue to take and receive only such part or share thereof as his, her, or their parent would have done had he, she, or they been living,” &c.
Benjamin B. Cooper and wife had one child born after the date of the above deed, to wit, William Morris Cooper. His three children, Ralph, Sarah, and William, all survived their parents, and are still living. Ralph was of age at the death of their father ; William came of age in 1844.
Benjamin B. Cooper survived his wife, and died in 1835, having first made his will, by which he devised and be[160]*160queatlied to Ms tMee cMMren, Ralph, Sarah, and William, all the residue, remainder, and reversion of his estate, real, personal, and mixed, or in company with others, wheresoever situated, to he equally divided between them, and to hold to them and their several and respective heirs and assigns for ever.
The contest here is about the title to Ralph V. M. Cooper’s one equal undivided third part of this Indian orchard tract.
The plaintiff produced in evidence—
1. A judgment against R. V. M. Cooper in the Supreme Court, in 1838, an execution issued thereupon, and a sheriffs deed for the said tract, sold under said execution to Abraham Browning, dated October 6, 1838.
2. A deed for the same, from Browning to Joseph Fifield, dated April 19, 1839.
3. A deed from Fifield and wife to Joseph 0. Wills, the lessor of the plaintiff, dated February 10, 1851.
And it appeared that B. B. Cooper was in possession of the premises up to the time of his death; Ralph Y. M. Cooper from his father’s death until the sheriffs sale m 1838; and Joseph Fifield, under his deed, from the time of his purchase up to 1848.
The defendants produced—
1. The deed of Yan Mater and wife, above mentioned.
2. A deed from Ralph Y. M. Cooper to William Morris Cooper for the premises in question, in 1849.
3. A deed from William Morris Cooper and ..wife to George T. Risdon, dated December 6, 1849.
4. A deed from Risdon to William M. Cooper and wife for the same, of same date.
The question in the cause is, had Ralph Y. M. Cooper, at the time of the levy and sale by the sheriff in 1838, such an estate in one undivided third part of this Indian orchard tract as could be taken and sold under a common law execution ?
[161]*161If lie had, the plaintiff is entitled to recover; if he had not, judgment must he for the defendants.
Benjamin B. Cooper aud wife took, under the Yan Mater deed, a trust estate in the premises. Surviving his wife, the legal title, subject to the trust, devolved on him. It was a naked trust; the whole beneficial interest was in the three children.
Upon his decease, the legal title passed either to the three children, under the residuary devise in the will, or it descended to Ralph, as the eldest son, according to the law of primogeniture, our statute of descents not applying to naked trust estates. Rev. St. 337.
1. Did it pass by the residuary clause in the will?
There is no doubt that a trust estate may pass under a devise such as this, unless there is something in the will or in the circumstances of the case from which a contrary intention is apparent. 4 Kent's Com. 538 ; Jackson v. De Lancy, 13 Johns. R. 537 ; Braybroke v. Inskip, 8 Vesey 417; Roe ex dem. Reade v. Reade, 8 Term. Rep. 118; Winn v. Littleton, 1 Vernon 3; Marlow v. Smith, 2 P. Williams 198.
Now it is true that the will declares it to be the intention of the testator to dispose of all his temporal concerns. The devise is of all the residue of the testator’s estate, wheresoever situated, and no other disposition is made of this trust property. But the consequence of such a construction utterly annuals the trust, for the devise is to the three children, who are the cestui que trusts, to be equally divided between them ; and as under it each would take the legal title in one third of the land, the beneficial interest of each would merge in the legal title ; for there can he no doubt of the general principle, that trust estates are in all cases subject to merge in the legal estate whenever both estates come to the same person. A man cannot be trustee for himself. 1 Cruise, tit. 12, ch. 2, § 35, p. 494; Preston on Merger 42, Law Lib. 6 ; Goodright v. Wells, Douglass 778 ; Hill on Trustees 252 ( Wh. ed.); Lewinon Trustees 24 Law Lib. 16.
[162]*162The trust under the Van Mater deed was 'to continue until the children arrived at twenty-one, that is all the children, as I understand it. Ralph was twenty-one when the ' devise took effect, but the other two, Sarah and William, ' were minors. Benjamin B. Cooper could not, by deed to ' the three children while under age, have conveyed to them the legal title, and thus have divested himself of an unexecuted trust. If he could, any trustee might at any time rid himself of the responsibility of an unexecuted trust by a conveyance to his cestui que trust. Then, if he eOuld not have done so by deed, will the law allow him to do so by will, the effect and consequence being to extinguish the trust entirely? I think not. The legal presumption is, ' therefore, against -such an intention.
2. Then, as the legal title did not pass by the "devisé, it descended to Ralph V. M. Cooper, as heir at law of his father.
He had then, in 1838, the legal title to the whole traet, and the question is, did the equitable estate in the one third of the land, which he took under the Van Mater deed, merge in the legal title ?
When we come to apply legal rules to particular eases, the difficulty of the application grows almost invariably out of the fact, that scarcely any two cases are exactly alike, and it is the peculiarity of the case that creates the doubt.
The case before us has its own peculiarities, and such as, it is insisted by the defendant’s counsel, prevented the merger.
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Potts, J.
This action is brought to recover possession of one equal undivided third part of a tract of land called Indian orchard, containing about thirty acres.
This tract was conveyed, in 1818, by Joseph Yan Mater and wife to Benjamin B. Cooper and wife, in trust, “ that they, the said Benjamin B. Cooper and Sarah his wife, or the survivor of them, and in case of the decease of both of them, the heirs, executors, or administrators of the said Benjamin B. Cooper, shall and do receive the rents, issues, and profits of the said lot of land during the minority of their children, Ralph V. M. Cooper and Sarah Ann Cooper, and such other child or children of them, the said Benjamin B. Cooper and Sarah his wife, who may hereafter be born, and pay and apply the said rents, issues, and profits for the maintenance and support of the said children now born, or hereafter to be born of them, the said Benjamin B. Cooper and Sarah his wife, and from and immediately after the said children shall arrive at lawful age, then in trust to grant and convey and assure the same to all such of the said children as may then be living, and to the lawful issue of any such child or children as may then be deceased, in equal shares as tenants in common in fee. Such issue to take and receive only such part or share thereof as his, her, or their parent would have done had he, she, or they been living,” &c.
Benjamin B. Cooper and wife had one child born after the date of the above deed, to wit, William Morris Cooper. His three children, Ralph, Sarah, and William, all survived their parents, and are still living. Ralph was of age at the death of their father ; William came of age in 1844.
Benjamin B. Cooper survived his wife, and died in 1835, having first made his will, by which he devised and be[160]*160queatlied to Ms tMee cMMren, Ralph, Sarah, and William, all the residue, remainder, and reversion of his estate, real, personal, and mixed, or in company with others, wheresoever situated, to he equally divided between them, and to hold to them and their several and respective heirs and assigns for ever.
The contest here is about the title to Ralph V. M. Cooper’s one equal undivided third part of this Indian orchard tract.
The plaintiff produced in evidence—
1. A judgment against R. V. M. Cooper in the Supreme Court, in 1838, an execution issued thereupon, and a sheriffs deed for the said tract, sold under said execution to Abraham Browning, dated October 6, 1838.
2. A deed for the same, from Browning to Joseph Fifield, dated April 19, 1839.
3. A deed from Fifield and wife to Joseph 0. Wills, the lessor of the plaintiff, dated February 10, 1851.
And it appeared that B. B. Cooper was in possession of the premises up to the time of his death; Ralph Y. M. Cooper from his father’s death until the sheriffs sale m 1838; and Joseph Fifield, under his deed, from the time of his purchase up to 1848.
The defendants produced—
1. The deed of Yan Mater and wife, above mentioned.
2. A deed from Ralph Y. M. Cooper to William Morris Cooper for the premises in question, in 1849.
3. A deed from William Morris Cooper and ..wife to George T. Risdon, dated December 6, 1849.
4. A deed from Risdon to William M. Cooper and wife for the same, of same date.
The question in the cause is, had Ralph Y. M. Cooper, at the time of the levy and sale by the sheriff in 1838, such an estate in one undivided third part of this Indian orchard tract as could be taken and sold under a common law execution ?
[161]*161If lie had, the plaintiff is entitled to recover; if he had not, judgment must he for the defendants.
Benjamin B. Cooper aud wife took, under the Yan Mater deed, a trust estate in the premises. Surviving his wife, the legal title, subject to the trust, devolved on him. It was a naked trust; the whole beneficial interest was in the three children.
Upon his decease, the legal title passed either to the three children, under the residuary devise in the will, or it descended to Ralph, as the eldest son, according to the law of primogeniture, our statute of descents not applying to naked trust estates. Rev. St. 337.
1. Did it pass by the residuary clause in the will?
There is no doubt that a trust estate may pass under a devise such as this, unless there is something in the will or in the circumstances of the case from which a contrary intention is apparent. 4 Kent's Com. 538 ; Jackson v. De Lancy, 13 Johns. R. 537 ; Braybroke v. Inskip, 8 Vesey 417; Roe ex dem. Reade v. Reade, 8 Term. Rep. 118; Winn v. Littleton, 1 Vernon 3; Marlow v. Smith, 2 P. Williams 198.
Now it is true that the will declares it to be the intention of the testator to dispose of all his temporal concerns. The devise is of all the residue of the testator’s estate, wheresoever situated, and no other disposition is made of this trust property. But the consequence of such a construction utterly annuals the trust, for the devise is to the three children, who are the cestui que trusts, to be equally divided between them ; and as under it each would take the legal title in one third of the land, the beneficial interest of each would merge in the legal title ; for there can he no doubt of the general principle, that trust estates are in all cases subject to merge in the legal estate whenever both estates come to the same person. A man cannot be trustee for himself. 1 Cruise, tit. 12, ch. 2, § 35, p. 494; Preston on Merger 42, Law Lib. 6 ; Goodright v. Wells, Douglass 778 ; Hill on Trustees 252 ( Wh. ed.); Lewinon Trustees 24 Law Lib. 16.
[162]*162The trust under the Van Mater deed was 'to continue until the children arrived at twenty-one, that is all the children, as I understand it. Ralph was twenty-one when the ' devise took effect, but the other two, Sarah and William, ' were minors. Benjamin B. Cooper could not, by deed to ' the three children while under age, have conveyed to them the legal title, and thus have divested himself of an unexecuted trust. If he could, any trustee might at any time rid himself of the responsibility of an unexecuted trust by a conveyance to his cestui que trust. Then, if he eOuld not have done so by deed, will the law allow him to do so by will, the effect and consequence being to extinguish the trust entirely? I think not. The legal presumption is, ' therefore, against -such an intention.
2. Then, as the legal title did not pass by the "devisé, it descended to Ralph V. M. Cooper, as heir at law of his father.
He had then, in 1838, the legal title to the whole traet, and the question is, did the equitable estate in the one third of the land, which he took under the Van Mater deed, merge in the legal title ?
When we come to apply legal rules to particular eases, the difficulty of the application grows almost invariably out of the fact, that scarcely any two cases are exactly alike, and it is the peculiarity of the case that creates the doubt.
The case before us has its own peculiarities, and such as, it is insisted by the defendant’s counsel, prevented the merger. He contends—
First. That the beneficial interest was for the maintenance and Support all the children until they should arrive 'at twenty-one; that it was a joint interest, incapable -of division until the youngest came of age.
Second. That the absolute legal title could not pass to either of them tmtil the youngest reached maturity, and that until then the trust could not be fully-executed.
[163]*163Third. That to both estates there was a condition annexed, that in case either died during the rrdnority of any ■ of the others, that' share went, by the terms of the trust deed, to the children of the deceased, or, in default of issue, to the survivors.
And it is argued, that though upon the death of his father the naked trust, the technical legal title, descended to Ealph, yet that he had not the absolute .interest in either the legal or the equitable estates; that both .depended upon contingencies; that they .they were not coextensive nor commensurate; that the merger would defeat the intention of the donor, which was that the whole estate should remain for the purposes of the trust until the youngest child was of age, and would be prejudicial to the interests of Ealph, as it might operate to deprive him .of the .support he derived from it.
But it is to be observed, as to the interest the cestui que trusts took under the Van Mater deed — ■
■ 1. That it was present interest, vesting, upon the delivery of the deed, beneficially in Ealph and Sarah, and opening afterwards to let in William, who was subsequently born. 4 KenSs Com. 205.
2. That the interest of each of the children was equal; they were placed on terms of perfect eqnality, the rents and profits were for their support until all came of age; and after William’s birth, each child became in fact beneficially interested in one third of the profits, and was to continue so until the trust was finally executed.
3. That though the legal title was not to be conveyed by the trustees to the cestui q%ie trusts, by the terms of the trust, until the youngest child became ,of age, yet that as to one third, Ealph’s part of the estate, the law executed the trust by casting the legal title on him by descent. This must be so, for he could not remain trustee for himself nor make a conveyance to himself.
4. That as to the clause making provision for the case [164]*164of the decease of any one of the cestui que trusts, it amounts simply to this, that in that contingency the estate went to the children or heirs of the person dying precisely as it would have gone had the clause not been in the deed.
The intention of the donor is, I think, fairly, carried out if each of the eestui que trusts remain secure in the enjoyment of one third of the rents and profits, for this is in effect precisely what is granted. And the merger of Ralph’s beneficial interest in his legal estate did not affect the beneficial interest in either of the other thirds. And as to Ralph, a merger in 1835 was clearly for his interest, for it made him the absolute owner of his one third of the land some eight or nine years earlier than he would have been had the estate not been cast on him.
It may be true that if Ralph had died leaving no issue, before William Morris came of age, that his one third would have gone under the Yan Mater deed to the survivors, Sarah and William. But that condition in the deed could not prevent the merger; though the estate, after merger, in whosesoever hands it was, might thereby have been defeated.
Now as to the legal title, it having passed to Ralph by descent, the trust, as to his one third part, was an executed trust, and as to the other two thirds, he held the title as trustee for his brother and sister. This seems to be ■-the inevitable result, as he could not remain a trustee for himself. ■
• Then what became of his equitable estate %
It was a vested beneficial interest, for he had the present enjoyment, as well as the legal title, to him and his heirs, under the Yan Mater deed. Ordinarily, when such an interest or estate meets and unites with the legal title in one person, the former merges in the latter. Preston on Merger 6, 315, 441.
And even though the other cestui que trusts had a con tinuing interest in the whole tract, this, it seems, would [165]*165not prevent a merger, for as against one person, the estate may he merged, while as against another, it may have a continuance íd uoint of title, which happens as often as some third person has a continuing interest under the lesser estate. Preston on Merger 39.
So it may have a partial operation. It may operate upon an undivided portion of the estate. Preston on Merger 88, 89 ; 4 Kent's Com. 100.
The rule as stated in Hill on Trustees 252, is, that “where the legal and equitable estates become vested in the same person, the latter will he absorbed, and merge in the former “ for this purpose, however, the two estates must be coextensive and commensurate, or, more accurately, the legal estate must be equally extensive with, or more extensive than the equitable estate, for the equitable fee will not merge in a partial or particular legal interest.”
Here the legal estate cast upon Ealpb by descent was undoubtedly broad enough to cover bis equitable interest; and it is, I think, sufficiently clear that, upon the fair construction of the Van Mater deed, his equitable beneficial interest and the absolute legal estate which he took by the descent clear of the trust were precisely coextensive and commensurate; each extended to one undivided third part of the premises, and each subject to the same conditions.
' I am of opinion, therefore, that upon the descent cast upon Ralph V. M. Cooper at the death of his father in 1835, his equitable merged in his legal estate, and that he had at the time of the levy and sale by the sheriff, in 1838, such an estate in the one undivided third part of the premises as could he taken and sold under a common law execution.
The plaintiff, therefore, is entitled to recover.
C. J. Green and Ogden, J., concurred.
Cited in Cueman v. Broadnax, 8 Vr. 511; Bolles v. State Trust Co., 12 C. E. Gr. 310.