Alvey, J.,
delivered the opinion of the Court.
In disposing of this case, upon the record as now before us, three questions are presented :
1. Whether George Harman took a fee-simple estate in the land in controversy, under the will of his father, Christian Harman ; and if he did not,—
2. Whether a trustee or trustees should he appointed to sell such land for the benefit of those entitled in remainder under the will; and,
3. Whether it was proper to grant an injunction to stay destructive trespass on the land until it could he sold foi1 the benefit of those entitled to the proceeds of sale.
1. By the will under consideration, the testator devised to his wife, in lieu of dower, a tract of land containing about three hundred acres, during her life; and also gave to two of the children of his son George certain pecuniary legacies ; and after certain other bequests, he then devised and bequeathed all the rest of his property, real, personal and mixed, to his son' George, during his natural life, and after Lis death the proceeds thereof to he equally divided between all his, George’s, laivful heirs; “first deducting the bequests already made, and when the others become equal then the balance shall he divided between them share and share alike.”
George Harman, the son, and Christian Harman, the grandson, of the testator, were appointed executors of' the will ; and, by the last clause of the will, the testator empowered his executors to make public or private sale of any of his remaining real or personal property, to pay the bequests thereinbefore made,
The devise or .bequest of all the rest of the testator’s property, real, personal and mixed, included all reversionary interests however remote, which were undisposed of by the previous provisions of the will; and hence the devise to his son George of all the rest of his property included the reversion in the tract of land of three hundred acres previously devised to his wife for life.
[263]*263But notwithstanding the express terms in which the devise is made to George, that is, that it was for his natural life, it is contended for the appellant that this devise to George was enlarged to an estate in lee, in the land by reason of the remainder being limited to his “lawful heirs ; ” and that, consequently, it is a devise within the rule laid down in Shelley’s Case, 1 Co., 96. That rule is, " where the ancestor takes an estate of freehold by gift or conveyance, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs, in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.”
Here, as has been observed from the recital of the devise, the terms of the will are, as applied to both real and personal property, " and after his death,” that is, the tenant for life, " the proceeds thereof shall be equally divided between all his lawful heirs,” followed by words giving specific direction as to the mode of equalizing the distribution. This would seem to be wholly incompatible with the rule of descent; and unless that rule can apply to govern the succession, it is very clear that the devise is not within the rule of Shelley’s Case; for the first principle of that rule is, that the freehold estate in the ancestor and the remainder limited to his heirs shall unite and become an entire estate in the ancestor, so that, if the ancestor die intestate, his heirs shall take by descent from him, and not as purchasers under the original limitation. Tud. Lead. Cases, 482. Where the limitation of the remainder is to the í’ssííe or heirs of him to whom the preceding estate for life is limited, if the term issue or heirs is clearly intended as descriptive merely of the persons to take in succession, and thus become the root of a new inheritance, the individuals embraced by such descriptive terms, take as purchasers, and do not, therefore, come within the rule in Shelley’s Case. When the word heirs is taken as a word of limitation, it is collective, and signifies all the [264]*264descendants in all generations ; but when it is taken as a word of purchase, it may denote particular persons answering the description at a particular time, and in a special sense, according to circumstances. This is established by numerous authorities, and is plainly enough stated in the cases of Horne vs. Lyeth, 4 H. &J., 431, Lyles vs. Digges, 6 H. & J., 364, and Ware vs. Richardson, 3 Md., 544; in addition to which cases, see Tud. Lead Cas., 493, and 2 Wushb. Real Pro., 559.
In the devise under consideration, as the words “lawful heirs ” are followed by words of partition and distribution inconsistent with the devolution of the estate by inheritance, the estate for life cannot he enlarged to a fee-simple, by force of the terms “lawful heirs ;” but the gift being of the proceeds, to be divided in a manner specially prescribed, the terms of the gift must be construed as clearly indicative of an intent to give a life estate only to the son George, with a gift over to those who may be embraced within the terms “lawful heirs” as purchasers.
In the case of Hockley vs. Mawbey, 1 Ves., Jr., 343, 349, Lord' Chancellor Ti-iurlow, in speaking of a devise to a party and his lawful issue, followed by the words, “to be divided among them as he,” the ancestor, “ should think fit,” said : “ The limitation to the son and his issue would be an estate tail; and perhaps the aptest way of describing an estate tail according to the statute ; but it is clear, he did not intend it to go to them as heirs in. tail; for he meant they should take distributively, and according to proportions, to be fixed by the son. It has often been decided in other cases, besides those mentioned at the har, that, where there is a gift in that way, the parties must take as purchasers ;■ for there is no other way for them to take. The immediate consequence of that is, that R., the son, could only take for life, and the consequence of that is, that this is a gift to the wife for life, then to the son for life; and after to his issue, in such distribute shares as [265]*265lie should appoint.” This case of Hockley vs. Mawbey, is referred to, and the principle decided by it clearly announced, in the case of Horne vs. Lyeth, 4 H. & J., 436, citing and relying also upon the case of Jacob vs. Amyatt, 4 Bro. C. C., 542.
Here the gift to the “lawful heirs” of the son George is of the proceeds, to be distributed in the manner directed by the testator himself; hence, those answering the description must, for the reasons stated by Lord Thurlow, take as purchasers. Whether this devise of the proceeds should be regarded as equivalent to a devise of the land itself, upon the same principle that a devise of the “rents and profits” of land is equivalent to a devise of the land itself, it is not necessary now to decide. Upon this question, see the cases of Doe dem. Goldin vs. Lakeman, 2 B. &Ad., 30, and Cassilly & Wife vs. Meyer, 4 Md., 1.
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Alvey, J.,
delivered the opinion of the Court.
In disposing of this case, upon the record as now before us, three questions are presented :
1. Whether George Harman took a fee-simple estate in the land in controversy, under the will of his father, Christian Harman ; and if he did not,—
2. Whether a trustee or trustees should he appointed to sell such land for the benefit of those entitled in remainder under the will; and,
3. Whether it was proper to grant an injunction to stay destructive trespass on the land until it could he sold foi1 the benefit of those entitled to the proceeds of sale.
1. By the will under consideration, the testator devised to his wife, in lieu of dower, a tract of land containing about three hundred acres, during her life; and also gave to two of the children of his son George certain pecuniary legacies ; and after certain other bequests, he then devised and bequeathed all the rest of his property, real, personal and mixed, to his son' George, during his natural life, and after Lis death the proceeds thereof to he equally divided between all his, George’s, laivful heirs; “first deducting the bequests already made, and when the others become equal then the balance shall he divided between them share and share alike.”
George Harman, the son, and Christian Harman, the grandson, of the testator, were appointed executors of' the will ; and, by the last clause of the will, the testator empowered his executors to make public or private sale of any of his remaining real or personal property, to pay the bequests thereinbefore made,
The devise or .bequest of all the rest of the testator’s property, real, personal and mixed, included all reversionary interests however remote, which were undisposed of by the previous provisions of the will; and hence the devise to his son George of all the rest of his property included the reversion in the tract of land of three hundred acres previously devised to his wife for life.
[263]*263But notwithstanding the express terms in which the devise is made to George, that is, that it was for his natural life, it is contended for the appellant that this devise to George was enlarged to an estate in lee, in the land by reason of the remainder being limited to his “lawful heirs ; ” and that, consequently, it is a devise within the rule laid down in Shelley’s Case, 1 Co., 96. That rule is, " where the ancestor takes an estate of freehold by gift or conveyance, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs, in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.”
Here, as has been observed from the recital of the devise, the terms of the will are, as applied to both real and personal property, " and after his death,” that is, the tenant for life, " the proceeds thereof shall be equally divided between all his lawful heirs,” followed by words giving specific direction as to the mode of equalizing the distribution. This would seem to be wholly incompatible with the rule of descent; and unless that rule can apply to govern the succession, it is very clear that the devise is not within the rule of Shelley’s Case; for the first principle of that rule is, that the freehold estate in the ancestor and the remainder limited to his heirs shall unite and become an entire estate in the ancestor, so that, if the ancestor die intestate, his heirs shall take by descent from him, and not as purchasers under the original limitation. Tud. Lead. Cases, 482. Where the limitation of the remainder is to the í’ssííe or heirs of him to whom the preceding estate for life is limited, if the term issue or heirs is clearly intended as descriptive merely of the persons to take in succession, and thus become the root of a new inheritance, the individuals embraced by such descriptive terms, take as purchasers, and do not, therefore, come within the rule in Shelley’s Case. When the word heirs is taken as a word of limitation, it is collective, and signifies all the [264]*264descendants in all generations ; but when it is taken as a word of purchase, it may denote particular persons answering the description at a particular time, and in a special sense, according to circumstances. This is established by numerous authorities, and is plainly enough stated in the cases of Horne vs. Lyeth, 4 H. &J., 431, Lyles vs. Digges, 6 H. & J., 364, and Ware vs. Richardson, 3 Md., 544; in addition to which cases, see Tud. Lead Cas., 493, and 2 Wushb. Real Pro., 559.
In the devise under consideration, as the words “lawful heirs ” are followed by words of partition and distribution inconsistent with the devolution of the estate by inheritance, the estate for life cannot he enlarged to a fee-simple, by force of the terms “lawful heirs ;” but the gift being of the proceeds, to be divided in a manner specially prescribed, the terms of the gift must be construed as clearly indicative of an intent to give a life estate only to the son George, with a gift over to those who may be embraced within the terms “lawful heirs” as purchasers.
In the case of Hockley vs. Mawbey, 1 Ves., Jr., 343, 349, Lord' Chancellor Ti-iurlow, in speaking of a devise to a party and his lawful issue, followed by the words, “to be divided among them as he,” the ancestor, “ should think fit,” said : “ The limitation to the son and his issue would be an estate tail; and perhaps the aptest way of describing an estate tail according to the statute ; but it is clear, he did not intend it to go to them as heirs in. tail; for he meant they should take distributively, and according to proportions, to be fixed by the son. It has often been decided in other cases, besides those mentioned at the har, that, where there is a gift in that way, the parties must take as purchasers ;■ for there is no other way for them to take. The immediate consequence of that is, that R., the son, could only take for life, and the consequence of that is, that this is a gift to the wife for life, then to the son for life; and after to his issue, in such distribute shares as [265]*265lie should appoint.” This case of Hockley vs. Mawbey, is referred to, and the principle decided by it clearly announced, in the case of Horne vs. Lyeth, 4 H. & J., 436, citing and relying also upon the case of Jacob vs. Amyatt, 4 Bro. C. C., 542.
Here the gift to the “lawful heirs” of the son George is of the proceeds, to be distributed in the manner directed by the testator himself; hence, those answering the description must, for the reasons stated by Lord Thurlow, take as purchasers. Whether this devise of the proceeds should be regarded as equivalent to a devise of the land itself, upon the same principle that a devise of the “rents and profits” of land is equivalent to a devise of the land itself, it is not necessary now to decide. Upon this question, see the cases of Doe dem. Goldin vs. Lakeman, 2 B. &Ad., 30, and Cassilly & Wife vs. Meyer, 4 Md., 1. Nor do we deem it necessary to decide, as the case is now presented, at what time the conversion from realty to personalty should be regarded as having taken place; whether from the death of the testator, or the expiration of the particular estates, with respect to the gilt of the proceeds to the “lawful heirs” of George. But, by fair construction of the terms employed, in order to obtain the end which the testator had in view, that is, the distribution of the proceeds among the parties designated, these terms must he taken to amount to a direction to sell the land, either subject to the life estates, or after the death of George. Green vs. Belchier, 1 Atk., 506. Whether at the one time or the other is now immaterial; as it is conceded that the life estates have terminated.
Being thus of opinion that George Harman, the son, under the residuary clause of his father’s will, took but a life estate in the tract of land that had been devised to the testator’s wife for life, of course, neither he, nor his insolvent trustees, could sell more than he was entitled to under the will. Lienee Mrs. Fulton, the present claimant of the [266]*266land., can derive no valid title through George Harman, or his insolvent trustees, of a greater value or extent than that owned by George Harman, that is to say, an estate that terminated with his natural life.
2. Having thus concluded with respect to the estate of George Harman, the next question is, whether, upon the present application, a trustee or trustees may be appointed by the Court to sell the land as contemplated by the will. And upon this question we cannot perceive room for doubt.
By the Code, Art. 16, sec. 66, it is provided that where any person dies, leaving real or personal property to be sold for the payment of debts, or other purposes, and shall not appoint any person to sell and convey the same, or if the person appointed dies, or neglects or refuses to execute such trust, the Court, upon the petition of any person interested in the sale of such property, may appoint a. trustee to sell and convey the same, and apply the money arising from the same to the purposes intended. The proceedings under the provision of the statute have generally been of a less formal character than the present, and most generally ex parte. Hammond vs. Hammond, 2 Bland, 221; Dorsey vs. Thompson, 31 Md., 46. It is not required that all the parties interested in the sale should join in the application for the appointment of a trustee under this statutory provision ; but the Court may appoint a trustee and . direct a sale upon the application of only a part of those interested. Shriver’s Lessee vs. Lynn, 2 How., 43. If, therefore, it be true as alleged, that George Harman is dead, and that Christian Harman, the other executor, though living, .declined and refused to execute the trust under his grandfather’s will, the case is clearly within the provision of the statute, and the Court could rightfully appoint a trustee to make sale of the property under the will.
3. The only other question presented is that in regard to the injunction to restrain'the destruction of timber on [267]*267the land, pending the proceedings for the appointment of trustees to make sale of the land under the will.
(Decided 7th March, 1876.)
As to the first injunction, that issued on the original bill, against Joseph Eulton, the propriety of the order awarding that writ is not before us, as the record does not contain the original bill, but only the amended bill upon which an injunction was ordered as against Elizabeth Fulton, the wife of Joseph Fulton. But as to this latter injunction, we think, under the facts and circumstances disclosed, it was properly issued. The trespass complained of went to the destruction of that which is essential to the value of the estate, and to the destruction of the estate itself, in the character in which it has been enjoyed. The case of Shipley vs. Ritter, 7 Md., 408, is ample authority to authorize the injunction in this case.
The record transmitted to this Court is exceedingly defective, containing neither the original bill, the order thereon for injunction, nor the answers of some of the defendants, and it is entirely destitute of all proof. Whether there was any proof taken does not appear. The main object of the present appeal seems to be to obtain a construction of the will of Christian Harman ; but as the case is now presented by the record in this Court, we can neither affirm nor reverse the decree appealed from, but must remand the cause, under the Code, Art. 5, sec. 28, that the omissions in the record may be supplied, and further proceedings had, as authorized by the provision of the statute referred to.
Cause remanded, under Code, Art. 5, sec. 28.