The Chancellor.
Under the circumstances of this case I am inclined to think the defendant J. Hoxie, who had put in a plea to the whole bill, was not entitled to except to the master’s report. Issue having been joined upon his plea, if that issue should be found in his favor the bill would be dismissed as of course ; and if the plea was overruled as false, the bill as to him was admitted to be true, and was to be taken as confessed. But as that question does not appear to have been considered before the vice chancellor, I shall not pass upon it here. The real question presented upon this appeal is, whether the nephews and nieces of Luke Hoxie took vested estates in prcesenti in his residuary estate, under his will, or whether there was an interest undisposed of during their minorities which is now vested in his heirs at law. This must depend upon the construction of the will itself when taken in connection with certain provisions of the revised statutes. The premises in question are a part of the residuary estate of the testator, who died in 1830. After devising and bequeathing a portion of his property among his relatives, he gave the residue of his estate to the children of his brothers and sisters, by the following residuary clause in his will: “ Also that the remainder of my “ property, after paying the charges incident to my sickness, “ and after releasing one year’s rent to M. & F. of the farm “ they now occupy, to be divided equally among the chil dren of my sister Mary, my brother Solomon and my brother John, when they shall severally become of age.” The vice chancellor arrived at the conclusion that, under this will, the several minor children of the brothers and sister of the testator took mere contingent interests, by way of executory devise, in the residuary estate ; depending upon the contingency of their arriving at the age of twenty-one respectively; and that in the mean time the legal estate descended to the heir at law of the testator. In this I think he was clearly wrong. Even before the revised statutes a future estate was not contingent where the devisee was in esse and ascertained at the death of the testator, and where nothing could prevent the estate from vesting in possession if the devisee lived until the time appointed for that purpose. [192]*192The estate or interest, therefore, which was given to the infant devisees in this case was a vested estate, which upon the death of the devisee under age would have descended to his own children, or heirs at law, and not to the heirs of the testator. The estate is not given to them if they shall arrive at the age of twenty-one, but it is to be divided among them when they respectively attain the age of twenty-one. In the case of Rogers v. Ross, (4 John. Ch. Rep. 388,) the court appears to have supposed that when the enjoyment of the estate was postponed during the minority of the devisee of the whole residuary interest, the heir at law would take the legal estate in the mean time in trust for the infant, although the infant devisee was himself in existence and capable of taking an immediate vested interest. The decision of that question, however, was not necessary in the case then before that court; as the only materia] enquiry there was, whether the infant devisee was entitled to the beneficial interest in the rents and profits of the estate during the suspension of the absolute right of enjoyment. In the case of Farmer v. Francis, (2 Bing. Rep. 151,) upon a case sent from the vice chancellor to the common pleas, which was very much like the one under consideration except that the legal estate was devised in terms to trustees, the court held that the legatees took the whole beneficial interest in the rents and profits during their minority, and that if it had not been for the intervention of the trustees the legal estate would in the mean time have vested in the infant devisees, instead of the heir at law. In that case as in this, the residuary estate was to be divided, share and share alike, between the devisees in remainder who should be living at the death of their mother and grandmother, when and as they should respectively attain the age of twenty-one years.
The construction of a will must depend upon the intention of the testator, to be ascertained from a full view of every thing contained within the four corners of the instrument. And where, from the will itself, it is evident that the testator meant that the heir at law, or any other person, should take the legal estate for the benefit of the real devisee, the court will consider the estate as devised in trust, although [193]*193no formal words of devise to the trustee are used. But where it is clear that a person in esse, and capable of taking the legal estate at the time of making the will, was intended to have the whole beneficial interest in the estate during his minority, as well as afterwards, and there are no words in the will indicating an intention to give the legal estate in trust to another person for his use, I can see no good reason for giving the legal estate to the heir at law, as the trustee for the infant, instead of giving it to the infant himself to be taken care of in the mean time by his legal guardian. In this case there is no doubt that the testator intended his nephews and nieces should have the whole beneficial interest in his residuary property, from his death, to be set off to them, or put into their actual possession, when they should respectively attain the age of twenty-one. But he does not appear to have had any definite idea as to where the legal title should remain in the mean time. And as this will was made since the adoption of the revised statutes, it would be wrong to give it such a construction as to create an illegal trust, and thereby to defeat the object of the testator, when by construing it as an immediate devise to the objects of his bounty the devisees will take the same legal and equitable interest in the property which he intended they should have. If Chancellor Kent was right in supposing that the heir at law, in a case of this kind, would by the common law take the legal estate, by implication, as a naked trustee for the devisee, then the operation of the 45th and 47th sections of the article of the revised statutes relative to uses and trusts, (1 R. S. 727,) converted the whole beneficial interest in the subject of the devise into a legal estate in the devisees. The 45th section provides that every estate and interest in lands shall be deemed a legal right, cognizable as such in courts of law, except when otherwise provided for in that chapter of the revised statutes. And by the 47th section the person entitled to the actual possession of land and to the rents and profits thereof, by virtue of any grant, assignment or devise, has a legal estate in the land, of the same quality and duration and subject to the same conditions as his beneficial interest. As this is not the case of an express trust, within [194]*194any of the subdivisions of the 55th section of that article, it seems to follow that the devisees have a legal estate in the rents and profits of the premises, during their respective minorities, to the extent of the beneficial interest in the property which the testator intended to give to them by his will.
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The Chancellor.
Under the circumstances of this case I am inclined to think the defendant J. Hoxie, who had put in a plea to the whole bill, was not entitled to except to the master’s report. Issue having been joined upon his plea, if that issue should be found in his favor the bill would be dismissed as of course ; and if the plea was overruled as false, the bill as to him was admitted to be true, and was to be taken as confessed. But as that question does not appear to have been considered before the vice chancellor, I shall not pass upon it here. The real question presented upon this appeal is, whether the nephews and nieces of Luke Hoxie took vested estates in prcesenti in his residuary estate, under his will, or whether there was an interest undisposed of during their minorities which is now vested in his heirs at law. This must depend upon the construction of the will itself when taken in connection with certain provisions of the revised statutes. The premises in question are a part of the residuary estate of the testator, who died in 1830. After devising and bequeathing a portion of his property among his relatives, he gave the residue of his estate to the children of his brothers and sisters, by the following residuary clause in his will: “ Also that the remainder of my “ property, after paying the charges incident to my sickness, “ and after releasing one year’s rent to M. & F. of the farm “ they now occupy, to be divided equally among the chil dren of my sister Mary, my brother Solomon and my brother John, when they shall severally become of age.” The vice chancellor arrived at the conclusion that, under this will, the several minor children of the brothers and sister of the testator took mere contingent interests, by way of executory devise, in the residuary estate ; depending upon the contingency of their arriving at the age of twenty-one respectively; and that in the mean time the legal estate descended to the heir at law of the testator. In this I think he was clearly wrong. Even before the revised statutes a future estate was not contingent where the devisee was in esse and ascertained at the death of the testator, and where nothing could prevent the estate from vesting in possession if the devisee lived until the time appointed for that purpose. [192]*192The estate or interest, therefore, which was given to the infant devisees in this case was a vested estate, which upon the death of the devisee under age would have descended to his own children, or heirs at law, and not to the heirs of the testator. The estate is not given to them if they shall arrive at the age of twenty-one, but it is to be divided among them when they respectively attain the age of twenty-one. In the case of Rogers v. Ross, (4 John. Ch. Rep. 388,) the court appears to have supposed that when the enjoyment of the estate was postponed during the minority of the devisee of the whole residuary interest, the heir at law would take the legal estate in the mean time in trust for the infant, although the infant devisee was himself in existence and capable of taking an immediate vested interest. The decision of that question, however, was not necessary in the case then before that court; as the only materia] enquiry there was, whether the infant devisee was entitled to the beneficial interest in the rents and profits of the estate during the suspension of the absolute right of enjoyment. In the case of Farmer v. Francis, (2 Bing. Rep. 151,) upon a case sent from the vice chancellor to the common pleas, which was very much like the one under consideration except that the legal estate was devised in terms to trustees, the court held that the legatees took the whole beneficial interest in the rents and profits during their minority, and that if it had not been for the intervention of the trustees the legal estate would in the mean time have vested in the infant devisees, instead of the heir at law. In that case as in this, the residuary estate was to be divided, share and share alike, between the devisees in remainder who should be living at the death of their mother and grandmother, when and as they should respectively attain the age of twenty-one years.
The construction of a will must depend upon the intention of the testator, to be ascertained from a full view of every thing contained within the four corners of the instrument. And where, from the will itself, it is evident that the testator meant that the heir at law, or any other person, should take the legal estate for the benefit of the real devisee, the court will consider the estate as devised in trust, although [193]*193no formal words of devise to the trustee are used. But where it is clear that a person in esse, and capable of taking the legal estate at the time of making the will, was intended to have the whole beneficial interest in the estate during his minority, as well as afterwards, and there are no words in the will indicating an intention to give the legal estate in trust to another person for his use, I can see no good reason for giving the legal estate to the heir at law, as the trustee for the infant, instead of giving it to the infant himself to be taken care of in the mean time by his legal guardian. In this case there is no doubt that the testator intended his nephews and nieces should have the whole beneficial interest in his residuary property, from his death, to be set off to them, or put into their actual possession, when they should respectively attain the age of twenty-one. But he does not appear to have had any definite idea as to where the legal title should remain in the mean time. And as this will was made since the adoption of the revised statutes, it would be wrong to give it such a construction as to create an illegal trust, and thereby to defeat the object of the testator, when by construing it as an immediate devise to the objects of his bounty the devisees will take the same legal and equitable interest in the property which he intended they should have. If Chancellor Kent was right in supposing that the heir at law, in a case of this kind, would by the common law take the legal estate, by implication, as a naked trustee for the devisee, then the operation of the 45th and 47th sections of the article of the revised statutes relative to uses and trusts, (1 R. S. 727,) converted the whole beneficial interest in the subject of the devise into a legal estate in the devisees. The 45th section provides that every estate and interest in lands shall be deemed a legal right, cognizable as such in courts of law, except when otherwise provided for in that chapter of the revised statutes. And by the 47th section the person entitled to the actual possession of land and to the rents and profits thereof, by virtue of any grant, assignment or devise, has a legal estate in the land, of the same quality and duration and subject to the same conditions as his beneficial interest. As this is not the case of an express trust, within [194]*194any of the subdivisions of the 55th section of that article, it seems to follow that the devisees have a legal estate in the rents and profits of the premises, during their respective minorities, to the extent of the beneficial interest in the property which the testator intended to give to them by his will.
Again, if the testator intended to give to the nephews and nieces who were under age at the time of his death future estates in his real property, to vest in possession upon their attaining the age of twenty-one, the law has given to them the rents and profits of the premises in the mean time, as the persons presumptively entitled to the next eventual estate. I am satisfied, however, that in this case the will of the testator cannot be carried into effect, under the provisions of the revised statutes, according to his intent appearing from the will itself, in any other way than to consider the infant devisees as taking the legal estate, in their several shares, from the death of the testator; but to be held as tenants in common among those who were under twenty-one until they should respectively attain to that age. And that the testator contemplated some process by which the share of each devisee in the real estate was to be partitioned off to him when he became of age, in the same manner as the executors w'ould under his will be bound to assign to him his share of the personal estate at that time. The result, therefore, is that no interest in the testator’s property, legal or equitable, descended to the heir at law, and that the master’s report was right in declaring that the rights and interests of the several parties in the premises were as set forth in the complainant’s bill. So much of the decree of the vice chancellor as allows any part of the exception to the master’s report, and as declares that the proper parties are not before the court and that the bill is defective in form and substance, together with the consequential direction founded upon such erroneous conclusion of the vice chancellor, must be reversed with costs, to be paid by the defendant John Hoxie. And the exceptions to the master’s report must be overruled with costs,and the report confirmed. As it appears by the report of the master that a sale will be necessary, there must be a further reference to him to en-[195]*195quire and report as to general liens ; to the end that on the coming in and confirmation of that report, such decree for the sale of the premises may be made as may be just. All further questions and directions are in the mean time reserved; and the proceedings are remitted to the vice chancellor of the fifth circuit, so that this decretal order may be carried into effect before him.