title was not merely nominal, but was connected with some power of actual disposition or management in relation to the lands. Future trusts were al lowed to be created to sell land for the benefit of creditors, or to create charges thereon, or to receive the rents and profits and apply them to the use of any person for life or any shorter term. In construing these provisions the courts of New York have held that a trust to receive and pay over rents and profits is valid; but that a trust for the use and benefit of the beneficiary, not requiring any action or management on the part of the trustee, except, perhaps, to make conveyances at the direction and appointment of the beneficiary, is not a valid trust within the statute, but inures as a legal estate in the beneficiary. This, we think, is the general result of the cases. See Leggett v. Perkins, 3 Comst., 297; Leggett v. Hunter, 19 N. Y., 454; Wood v. Mather, 38 Barb., 477; Anderson v. Mather, 44 N. Y., 257; Frazer v. Western, 1 Barb. Ch., 238.

In applying the principle of these cases to the case before us, we are met by the alternative character of the trust, namely, that the trustee shall either collect and receive the rents and profits and pay them over to Madame Jumel, or, at her election, shall permit her to use, occupy and possess the premises, and collect and receive the rents and profits to her separate use; and in either case to convey as she might direct, or to her heirs in case no direction be given. The first of these alternatives, according to the cases, would be a valid trust; but the second is equivalent to nothing more than a mere trust for her use and benefit. During the life of her husband (who died in 1832), it might perhaps be fairly contended that the existence of the legal estate in the trustee was necessary to protect her in the enjoyment of the property as separate estate free from the control of her husband. But, after his death, the option of managing the property herself being in her, and not in the trustee, we are inclined to think that the trust became a mere passive one, and that the equitable estates were, by the Revised Statutes, converted into legal ones. This view is corroborated by the opinion of Chancellor Walworth, who had before him some questions concerning a portion of the estate in 1839, and who, in relation to Madame Jumel's interest, used this language: "Her equitable interest therein, as cestui que trust, being turned into a legal estate by the provisions of the Revised Statutes;" citing the section above referred to. Jumel v. Jumel, 7 Paige, 595. It is true, as said by the counsel for the appellees, that the point in question was not necessary to the decision in that case; but the observation shows the impressions of an eminent judge, when the very matter was before his mind, and we have not been referred to any New York decisions derogatory to this view of the case.

However, the view which we take of this case will not render it material whether the estates created by the trust and appointment became legal estates or remained as they were originally, merely equitable in their nature. § 131. Power of appointment. When the execution of one of several powers in a deed will supersede others.

The more material question is as to the effect of the conveyances made by Madame Jumel, and by the trustee in obedience to her direction and appointment subsequent to the death of her husband.

We may dismiss the motion which pervades the argument of the counsel for the appellees, that these conveyances were a fraud upon the appointment mnade in behalf of Mary Jumel Bownes (or Mrs. Chase). However proper that appointment may have been, considering the relations which the ap

pointee sustained to Mr. Jumel and his wife, as their adopted daughter, it was, nevertheless, only a voluntary one; and the subsequent appointments can in nowise be regarded as frauds upon it. They were or they were not such appointments as Madame Jumel still had the power to make, and their effect is to be judged of by the nature of her power and by that circumstance alone. It is contended by the counsel for the appellant that, where several distinct powers are given in the same instrument, the execution of one of these powers superior in dignity to others will supersede and override the latter though executed first. This is, to a certain extent, true, as shown and explained by Mr. Sugden in his work on Powers, in the passages referred to. The execution, for example, of a power of sale will supersede all other powers, for it must necessarily do so in order to have any effect. Mr. Sugden, in illustrating the rule, says:

"Thus a power of sale must defeat every limitation of the estate, whether created directly by the deed or through the medium of a power, except estates limited to persons standing in the same situation as the purchaser, for example, a lessee; for the very object of a power of sale is to enable a conveyance to a purchaser discharged of the uses of the settlement, and it is immaterial whether any particular use was really contained in the original settlement or was introduced into it in the view of the law by the execution of a power contained in it." 2 Sugd. on Powers, 47, 48 (6th ed.).

In the present case there was a power to lease and a power to convey, assure and dispose. That the latter power included a power to "sell" is not only manifest from the words, but from a subsequent passage of the trust, which directs as to the disposition of the purchase money "in case of an absolute sale." At the same time the words are so general as to authorize a disposition in favor of a volunteer or gratuitous beneficiary. Here, then, are really two distinct powers contained in one clause; and, according to the rules laid down by Mr. Sugden, the power to sell is the superior power, and will override the other power and supersede it, if previously exercised.

§ 132. Relative priority and dignity of different powers in the same instru

ment.

It

This rule with regard to the relative priority and dignity of different powers in the same instrument, though depending on construction and the presumed intention of the donor, is somewhat analogous to the rule adopted by the courts in construing the act of 27 Elizabeth respecting fraudulent conveyances. has been invariably held under that act that a conveyance to a purchaser avoids all prior voluntary conveyances of the same lands; though, as between two voluntary conveyances or two conveyances to purchasers, the first will take the precedency. Roberts on Fraud. Conv., pp. 33, 641. So, in regard to double powers, a power to sell or exchange, when exercised, overrides all other distinct powers; for they are necessarily exclusive of all others; whereas the uses appointed under other powers may possibly be served out of the estate procured by the price of the sale or by the exchange. But when a mere power to convey, as distinguished from a power to sell, is once executed in favor of a voluntary beneficiary, it cannot be revoked without reserving a power of revocation, and will not, therefore, be superseded by a subsequent conveyance equally voluntary, made under the same power.

Had the transactions in question been real and effective sales to actual purchasers for valuable consideration, they would undoubtedly have superseded the voluntary appointment in favor of Mary Jumel Bownes. The position of the

appellees' counsel, that no subsequent appointment could displace this without having expressly reserved a power of revocation, cannot be maintained, for, as we have seen, a sale does have that effect. There is no doubt, therefore, that the conveyances to Kingsland and Martin were valid and effectual. And the execution of those conveyances cannot be characterized as in any manner fraudulent. They were conveyances which Madame Jumel, under her original power of appointment, had a right to make, notwithstanding the previous appointment in favor of her adopted daughter.

But the conveyances made to Hamilton and Phillippon were of a different character, and seem to have been intended merely as means of restoring the property to its original trusts or of vesting it absolutely in Madame Jumel herself, freed from the said appointment. On this point there can be no dispute, so far as regards the deed to Phillippon. It was a mere formal conveyance, made to enable him to reconvey the property to Madame Jumel. As such it was simply voluntary, and could have no paramount effect over the previous appointment in favor of Mary Jumel Bownes.

The conveyance to Hamilton may admit of more doubt. But looking at the whole transaction, the conveyance and the reconveyance, we cannot avoid the conclusion that it was intended as a means of getting rid of the former appointment. The reconveyance by Hamilton to Werckmeister was equivalent to a cancellation of the pretended purchase. It was not a sale made by Hamilton to Werckmeister, nor a settlement made by him for any purposes of his own. It was simply a handing back of the property. In our judgment, therefore, the two conveyances amounted to a mere formal transfer and retransfer; and, if any sale was ever intended, it was rescinded by the mutual consent of the parties to it. We are of opinion that this transaction did not, any more than that with Phillippon, affect the appointment in question or the estate of the appointee, whether that estate is to be regarded as a legal or an equitable

one.

The next question is as to the title of the appellees to equitable relief for protecting them in the title which they have thus acquired. Madame Jumel died in 1865; and the appellees immediately entered into full possession of all the property in question, both that which was derived from Stephen Jumel and that which is conceded to have been the proper estate of Madame Jumel; and they have been in possession ever since. The appellant, by his several actions of ejectment, seeks to deprive them of that possession. With regard to the Stephen Jumel property, the title to which we have been considering, and which the appellees claim under and by virtue of the said trust and appointment, it is apparent that, if the estate which they thus acquired is to be regarded as still an equitable estate, their right to the protection of a court of equity is undoubted, no matter where, or in whom, the legal estate may be,— whether in the heirs of Werckmeister, the trustee, or in the heirs of Madame Jumel by virtue of the conveyances above referred to. On the other hand, if, by virtue of the Revised Statutes, the equitable estate of the appellees became converted into a legal estate, they would still have good cause to come into a court of equity for the purpose of removing the cloud upon their title created by the subsequent appointments and conveyances to Hamilton and Phillippon. These instruments on their face purport to be conveyances to purchasers, setting forth pecuniary considerations to a large amount, and, by themselves, would import such a disposition of the lands conveyed as would defeat the appointment made in favor of Mrs. Chase. It is only by bringing

them into juxtaposition with the sequent transactions in each case respectively, that is to say, by the introduction of supplemental evidence, that they are shown to be ineffective. In view of these considerations, and of the fact that the whole title involves the true construction of the trust and the power of appointment, and the further fact that Madame Jumel was in full possession of the property, using and treating it as her own absolute estate until her death, the appellees were perfectly justified in coming into a court of equity to have these conveyances declared void and without effect.

To this extent we think they are entitled to a decree, including also a decree for a perpetual injunction against the appellant, prohibiting him from prosecuting any action or suit for the recovery of the lands embraced in the appointment made in favor of Mary Jumel Bownes, by the deed of appointment executed by Eliza B. Jumel, and bearing date the 21st day of November, 1828.

As to the residue of the relief prayed for,—namely, that the appellees should have the lands and real estate of which Madame Jumel indisputably died seized in fee-simple appropriated to them in satisfaction of the supposed frauds committed by her against the trust, and of the engagements which she is supposed to have made to settle her estate, or a portion thereof, upon Eliza Jumel Chase, in consideration of her marriage with Mr. Pery,- we are unable to perceive any valid ground for granting the prayer of the bill. If there were no other objections to the decree sought in this behalf, we cannot agree with the counsel of the appellees, that any such fraud as is supposed was practiced. if attempted, that the attempt was successful; and we fail to see anything in the proofs adduced with regard to the negotiations of the said marriage sufficient to sustain such a decree.

or,

Nor do we think that the nature of the litigation created by the actions of ejectment, the character and amount of the evidence, or the number of suits, is such as to lay the foundation for the assumption of the entire controversy by a court of equity. Supposing the relationship of the appellant to Madame Jumel to be such as he pretends it is, there does not seem to be any unnecessary multiplication of actions. All the property in the city of New York is included in one suit, and the actions in Saratoga are brought against the several tenants in possession. The power of the courts of law to consolidate actions depending between the same parties, and upon the same questions in controversy, is probably sufficient to prevent any practical inconvenience not inherent in the case itself. If the evidence is merely voluminous or tedious, that circumstance is not sufficient cause for removing a case from a court of law to a court of equity.

The claim made by the appellees to recover from the appellant the sura of $2,500, procured by him by way of compromise from a grantee of Mr. Chase, is, in our opinion, utterly groundless.

Decree reversed, and cause remanded with directions to enter a decree in conformity with this opinion.

§ 133. Use, when executed.-Where by will the title to land is vested in a trustee to uses, and there are no duties required at his hands, the use is executed and the legal title vests in the cestuis que use. Webster v. Cooper, 14 How., 488.

§ 134. A. and B., his wife, conveyed her estate to C. and his heirs, to the use of A. and B. during their joint lives, and to the use of the survivor in fee-simple. Held, that this deed operated as a feoffment, and the uses were well raised out of the seizin of C., and were executed by the statute of uses. Durant v. Ritchie, 4 Mason, 45.

§ 135. Under the statute of uses of 27 Henry VIII., chapter 10, in force in South Carolina, a cestui que use takes a complete title to lands devised to another for his use, and the relation of trustee and cestui que trust does not exist. Henderson v. Griffin,* 5 Pet., 151.

§ 136. Where an estate was devised to A. and B. in trust for C. and her heirs, the estate, by the settled rules of the courts of law and equity in South Carolina, as applied to the statute of uses of 27 Henry VIII., in force in that state, passed at once to the object of the trust as soon as the will took effect by the death of the testator. The interposition of the names of A. and B. had no other legal operation than to make them the conduits through whom the estate was to pass, and they could not sustain an ejectment for the land. C., the grandchild of the testator, is a purchaser under the will, deriving all her rights from the will of the testator, and obtaining no title from A. and B., and A. and B. were as much strangers to the estate as if their names were not to be found in the will. Ibid. $137.

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when executory— Use upon a use.— A covenant in the marriage articles by the father of the girl, to stand seized to her use after marriage, does not operate after marriage to pass the legal estate by the statute of uses (27 Henry VIII.); the use remains executory in the trustee and his heir at law. Magniac v. Thompson, 1 Bald., 344.

§ 138. A use limited upon a use is not executed or affected by the statute of uses. The statute executes only the first use. In the case of a bargain and sale the whole force of the statute is exhausted in transferring the legal title in fee-simple to the bargainee. But the second use may be valid as a trust and enforced in equity according to the rights of the parties. Croxall v. Shererd, 5 Wall., 268.

§ 139. Entry under statute of.— Under the statute of uses an entry was not essential to a complete title. Barr v. Galloway, 1 McL., 476.

§ 140. By the statute of uses an actual entry by the lessee is not necessary to enable him to receive a release to enlarge his estate, and the freehold estate which vests in him by enlargement is an estate at common law, and did not require the aid of the statute to execute the possession to the use. Hurst v. McNeil, 1 Wash., 70.

§ 141. Under a conveyance, taking effect under the statute of uses, the bargainee has a complete seizin in deed without actual entry or livery of seizin. Green v. Liter, 8 Cr., 229.

§ 142. When use and when trust deemed to have been created. —Language in a conveyance which might otherwise raise an executed use in a cestui que use is controlled by an intent manifested in the instrument to have the legal estate remain in the trustees. Neilson v. Lagow,* 12 How., 98.

§ 143. There is no doubt that the words "in trust" in a will may be construed to create a use, if the intention of the testator or the nature of the devise requires it. But the ordinary sense of the term is descriptive of a fiduciary estate or technical trust; and this sense ought to be retained until the other sense is clearly established to be that intended by the testator. In the present case there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being, and of course, if such issue should come in esse, a long minority must follow. During this period it was an object with the testator to uphold the estate in the father for the benefit of his issue; and this could be better accomplished by him as a trustee than as a guardian. If the estate to the issue were a use it would vest the legal estate in them as soon as they came in esse; and if the first-born children should be daughters, it would vest in them, subject to being divested by the subsequent birth of a son. A trust estate would far better provide for the first contingencies than a legal estate. King v. Mitchell, 8 Pet., 326.

§ 144. State statutes.-The effect of the Wisconsin statute of 1850, that "every person who, by virtue of any grant, assignment or devise, now is or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or equity, shall be deemed to have the legal estate therein," was to abolish all passive trusts in which the trustee held a mere naked or dry trust for the use of the cestui que trust, and to vest the title in the beneficiary. McGoon v. Scales, 9 Wall, 23. .

§ 145. Statute of uses has been adopted by Vermont and generally in the New England states. Society for Propagation of Gospel v. Town of Hartland, 2 Paine, 536.

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