Pearson, C. J.
The will of Mrs. Heron shows on its face that it was written by one who had just enough “ law learning ” to confuse him and to confound the judges and lawyers who are called on to say what it means.
Why, the draftsman declares a use to the executors for the use of Frances Heron for life, and then for the use of her children, so as to make it a use upon a use, and take it out of the operation of 27 Hen. 8 ; and why he limits the legal estate to the executors of the surviving executor, instead of to the surviving executor and his heirs, which is the technical woi’d to make a fee simple, we are not able to conjecture. The intention of the testatrix would have been carried out by giving Mrs. Sneade a life estate in the land, with a limitation to such child or children, (and the issue of such as died in her lifetime,) who were living at her death, and should have arrived at the age of twenty-one years, with a power in the executors to join with Mrs. Swann in selling the whole or any part of the land, if in their judgment it was advisable to convert thedand into money — then it would have been plain sailing.
We do not concur with his Honor in the opinion that the plaintiffs were not entitled to recover — meaning that the
defendant had acquired the title by adverse possession, and taking that view only, as is done by the pleading and the argument before us, we think that Mrs. Swann took under the will an estate for life in the trust, as distinguished from the use; in other words, the “ use upon the use,” and that her trust estate was a general trust and not a special trust; in other words, she was entitled to the possession, and the permanency of the profits, and not merely a right to receive the profits from the hands of the trustees for her separate use and maintenance. We also think that the limitation over of this trust to the children of Mrs. Swann, who answered the description, was valid, W'hether as a contingent remainder or an executory contingent trust, it is not necessary to decide ; although we incline to the opinion that it could not be upheld as “a contingent remainder,” because there is a “ possibility upon a possibility,” and because the remainder does not depend on the particular estate and await its termination, for there might be twenty-one years between them. But the limitation will be upheld as an executory devise, as it complies with the rule of perpetuity, “ and must take effect, if at all, in a life in being and twenty-one years and a few months for gestation.”
We also think that the plaintiffs fill the description and are entitled to the estate, unless the land has been transferred under the power or has been lost by reason of adverse possession.
2. The land did not pass in fee simple by the deed executed by W. C. Lord for himself and as agent of Marsden Campbell, and by Mrs, Swann and her husband in 1836.
In the absence of a power of attorney from Campbell to Lord as a part of “ the paper title,” the power of sale wTas not executed. “ When a power of sale is given to two, it is necessary for both to join in' the deed.”
Wasson
v.
King,
2 Dev. & Bat., 262, it is treated as settled law. Mrs. Swann and her husband also executed this deed with all of the formal
ities required by law, and as things have turned out, it becomes a very important matter to ascertain whether her life estate passed to Buck, the purchaser. In 1836, Buck, if he could not get the fee simple under the power, would not have objected to taking the life estate under the common law right of Mrs. Swann to sell it; but now after a long adverse possession, it suits the purpose of the defendant better to say, “ that deed was wholly inoperative.” Buck was a dissiezor, and the title has ripened under the statute, so as to give me the true title. The question in the case is: Did the life estate of Mrs. Swann pass to Buck by her deed of 1836 ? For if it did, then Buck and those claiming under him were not in adverse possession, and were not exposed to the action of the trustees as long as Mrs: Swann lived.
That a married woman owning an estate for life in a trust estate, has
jus disponendi
is laid down in all of the books, unless there be a restraint upon the power of alienation. In our case, the defendants counsel took the ground that the power of sale given to the executors created such a restraint. We do not think that can be inferred by the true construction of the provisions of the will — the power has no reference to the
jus disponendi
of the
life
estate, and leaves that intact, but authorizes a sale of the fee simple, provided the trustees, deem it to be advisable, as supplemental to the-right to sell the life estate, vested in Mrs. Swann, by force-of her ownership of such estate. Again, it was said, Mrs.. Swann owned a life estate in a trust, and her deed passed only the trust, leaving the legal estate in the trustees, whose-duty it was to enforce their legal estate by action. So Buck’s-possession was adverse to them, and their right of action is barred,
ergo,
the trust estate expectant upon the life estate-is defeated under the familiar doctrine, that when the legal estate is lost, the trusts dependent on it, whether vested or contingent, go with it.
Whether by the deed of Swann and wife in 1836 the legal
estate for her life passed to the purchaser by power of the statute (1 Rich., Ill), together with the trust, is a question which we are not called on to decide. Mr. Sanders, in his learned treatise on the doctrine of uses and trusts (see pages 36-42), expresses the opinion that a use upon a use does not come within the operation of that statute, for the reason that at the date of the statute this subtle idea had not been conceived, and was only started to evade the statute. 27 Hy. VIII, page 48. This reason in respect to a trust in fee simple is not satisfactory, as it seems to me. The mischief which 1 Rich., Ill, was intended to remedy, to wit, a fraud on the purchaser of a use, by a transfer of the legal title to some third person before making a deed to the purchaser, •extends equally to the purchaser of a “use upon a use;” •and as the statute in general words provides, “ the purchaser of a use shall have the legal estate without a conveyance by -the trustee,” it would seem to follow that the purchaser of •“ a use upon a use ” should also have the legal estate by this '“parliamentary magic,” and it will be noted that the exception of “ a use upon a use,” out of the operation of 27 Henry VIII, is put on the ground that as the statute carries the 'legal estate to the taker of the first use, it would involve an .■absurdity if the statute,
“uno flatus”
took the legal estate ■from the taker of the first use and carried it to the taker of ■the second use. This reasoning has no application to the -purchaser of
“
a use upon a use,” under 1 Richard III, and ■no attempt was made to evade it by any such subtlety. 'However this may be, it is clear from all the authorities, and from principle, that the purchaser of a trust estate for ‘life does not acquire the legal estate under 1 Richard III; "there is no provision for
dividing
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Pearson, C. J.
The will of Mrs. Heron shows on its face that it was written by one who had just enough “ law learning ” to confuse him and to confound the judges and lawyers who are called on to say what it means.
Why, the draftsman declares a use to the executors for the use of Frances Heron for life, and then for the use of her children, so as to make it a use upon a use, and take it out of the operation of 27 Hen. 8 ; and why he limits the legal estate to the executors of the surviving executor, instead of to the surviving executor and his heirs, which is the technical woi’d to make a fee simple, we are not able to conjecture. The intention of the testatrix would have been carried out by giving Mrs. Sneade a life estate in the land, with a limitation to such child or children, (and the issue of such as died in her lifetime,) who were living at her death, and should have arrived at the age of twenty-one years, with a power in the executors to join with Mrs. Swann in selling the whole or any part of the land, if in their judgment it was advisable to convert thedand into money — then it would have been plain sailing.
We do not concur with his Honor in the opinion that the plaintiffs were not entitled to recover — meaning that the
defendant had acquired the title by adverse possession, and taking that view only, as is done by the pleading and the argument before us, we think that Mrs. Swann took under the will an estate for life in the trust, as distinguished from the use; in other words, the “ use upon the use,” and that her trust estate was a general trust and not a special trust; in other words, she was entitled to the possession, and the permanency of the profits, and not merely a right to receive the profits from the hands of the trustees for her separate use and maintenance. We also think that the limitation over of this trust to the children of Mrs. Swann, who answered the description, was valid, W'hether as a contingent remainder or an executory contingent trust, it is not necessary to decide ; although we incline to the opinion that it could not be upheld as “a contingent remainder,” because there is a “ possibility upon a possibility,” and because the remainder does not depend on the particular estate and await its termination, for there might be twenty-one years between them. But the limitation will be upheld as an executory devise, as it complies with the rule of perpetuity, “ and must take effect, if at all, in a life in being and twenty-one years and a few months for gestation.”
We also think that the plaintiffs fill the description and are entitled to the estate, unless the land has been transferred under the power or has been lost by reason of adverse possession.
2. The land did not pass in fee simple by the deed executed by W. C. Lord for himself and as agent of Marsden Campbell, and by Mrs, Swann and her husband in 1836.
In the absence of a power of attorney from Campbell to Lord as a part of “ the paper title,” the power of sale wTas not executed. “ When a power of sale is given to two, it is necessary for both to join in' the deed.”
Wasson
v.
King,
2 Dev. & Bat., 262, it is treated as settled law. Mrs. Swann and her husband also executed this deed with all of the formal
ities required by law, and as things have turned out, it becomes a very important matter to ascertain whether her life estate passed to Buck, the purchaser. In 1836, Buck, if he could not get the fee simple under the power, would not have objected to taking the life estate under the common law right of Mrs. Swann to sell it; but now after a long adverse possession, it suits the purpose of the defendant better to say, “ that deed was wholly inoperative.” Buck was a dissiezor, and the title has ripened under the statute, so as to give me the true title. The question in the case is: Did the life estate of Mrs. Swann pass to Buck by her deed of 1836 ? For if it did, then Buck and those claiming under him were not in adverse possession, and were not exposed to the action of the trustees as long as Mrs: Swann lived.
That a married woman owning an estate for life in a trust estate, has
jus disponendi
is laid down in all of the books, unless there be a restraint upon the power of alienation. In our case, the defendants counsel took the ground that the power of sale given to the executors created such a restraint. We do not think that can be inferred by the true construction of the provisions of the will — the power has no reference to the
jus disponendi
of the
life
estate, and leaves that intact, but authorizes a sale of the fee simple, provided the trustees, deem it to be advisable, as supplemental to the-right to sell the life estate, vested in Mrs. Swann, by force-of her ownership of such estate. Again, it was said, Mrs.. Swann owned a life estate in a trust, and her deed passed only the trust, leaving the legal estate in the trustees, whose-duty it was to enforce their legal estate by action. So Buck’s-possession was adverse to them, and their right of action is barred,
ergo,
the trust estate expectant upon the life estate-is defeated under the familiar doctrine, that when the legal estate is lost, the trusts dependent on it, whether vested or contingent, go with it.
Whether by the deed of Swann and wife in 1836 the legal
estate for her life passed to the purchaser by power of the statute (1 Rich., Ill), together with the trust, is a question which we are not called on to decide. Mr. Sanders, in his learned treatise on the doctrine of uses and trusts (see pages 36-42), expresses the opinion that a use upon a use does not come within the operation of that statute, for the reason that at the date of the statute this subtle idea had not been conceived, and was only started to evade the statute. 27 Hy. VIII, page 48. This reason in respect to a trust in fee simple is not satisfactory, as it seems to me. The mischief which 1 Rich., Ill, was intended to remedy, to wit, a fraud on the purchaser of a use, by a transfer of the legal title to some third person before making a deed to the purchaser, •extends equally to the purchaser of a “use upon a use;” •and as the statute in general words provides, “ the purchaser of a use shall have the legal estate without a conveyance by -the trustee,” it would seem to follow that the purchaser of •“ a use upon a use ” should also have the legal estate by this '“parliamentary magic,” and it will be noted that the exception of “ a use upon a use,” out of the operation of 27 Henry VIII, is put on the ground that as the statute carries the 'legal estate to the taker of the first use, it would involve an .■absurdity if the statute,
“uno flatus”
took the legal estate ■from the taker of the first use and carried it to the taker of ■the second use. This reasoning has no application to the -purchaser of
“
a use upon a use,” under 1 Richard III, and ■no attempt was made to evade it by any such subtlety. 'However this may be, it is clear from all the authorities, and from principle, that the purchaser of a trust estate for ‘life does not acquire the legal estate under 1 Richard III; "there is no provision for
dividing
the legal estate, as is done ¡by 27 Henry VIII; and if the entire legal estate passes to ■the purchaser of a particular estate in the trust, the other parts of the trust would have nothing to support them. See
Battle
v.
Petway, 5
Ired., 576;
Badham
v.
Cox,
11 Ired., 456,
in regard to sales of trusts under execution. Assuming that Buck, being the purchaser of “ a use upon a use
”
for the life of Mrs. Swann, did not acquire the legal estate, but that it remained in the trustees, it is certain that if the trustees had brought an action against Buck or those claiming under him during the lifetime of Mrs. Swann, their action would have been enjoined in equity on the ground that Buck was the assignee of the trust estate, to which Mrs. Swann was entitled for her life. So the trustees could not have maintained an action and recovered posseesion of the land until after the death of Mrs. Swann, in 1871; and, granting to its full extent the rule that when the action of the trustee is barred by the Statute of Limitations the equitable estate of the
cestui que use
is gone also, except so far as there may be a remedy against the trustees for compensation for negligence in permitting the adverse possession to be uninterrupted until it ripened into a good title. In our case the trustees could not have interrupted the possession of Buck during the lifetime of Mrs. Swann ; so, whether the legal title passed to Buck for the life of Mrs. Swann, or whether the legal title continued in the trustees, fettered by the fact that Buck was the assignee of the trust estate for the life of Mrs. Swann, the possession of Buck and those claiming under him, did not become adverse until the death of Mrs. Swann.
For the error of his Honor in ruling that the possession under Buck was adverse, there must be a
venire de novo.
We are not at liberty to give judgment for the plaintiffs on the issues found, for the facts are not set out as on a special verdict, or a case agreed. Perhaps it is well, as the value of the property is large, as shown by the affidavit for removal, that the case should assume in some measure the nature of the old action of ejectment, which did not conclude the title. We think proper to call the attention of the counsel of plaintiffs to the fact, that the complaint has no averments,
as to the executors of J. R. London. Are they living or dead ? Did they die testate or intestate ? These are matters about which the Court must be satisfied by the pleadings before a judgment can be rendered in favor of the plaintiffs “ to have possession of the land and recover damages.” They “ own a use upon a use ” ; how are they to get the legal title ? Can a
cestui que trust
maintain an action for land, without joining the trustees ?
What was the quantity of estate given to the executor of the surviving executor ? If only a particular estate, where is the legal estate ? Who are the heirs at law of Mrs. Heron, and of the executors of the living executor? These questions are not presented by the pleadings, and were not noticed on the argument, but there must be an adjudication in respect to them, before the case can be disposed of by final judgment. If Mrs. Swann was the .heir or one of the heirs of Mrs. Heron, how does that fact affect the operation of her deed to Buck ?
The necessary amendments may be allowed in the Court below.
Error.
Per Curiam. Judgment accordingly.