Appellant brought her action at law (ejectment) upon the theory that the trustee's deed, purporting to convey the fee to "R. E. Lindsay, executor of S.C. Lindsay," was a nullity so far as concerned the estate in remainder, because made in breach of the trust. Her success in this action depends, for one thing at least, upon her ability to maintain that theory. The trustee was clothed with the fee and with a power to convey that fee. This, I think, should be conceded on all hands. The proposition of law involved in appellant's theory of the case was one of the two leading questions considered in Robinson v. Pierce, 24 So. 984, 118 Ala. 273, 45 L.R.A. 66, 72 Am. St. Rep. 160, and there, for aught I am able to understand, correctly decided against appellant's contention in this case upon what we now, upon re-examination, consider to have been a very careful and candid examination of the adjudicated cases. And, at any rate, we have traveled too far along that road now to turn back except upon strong conviction of error. In the briefs for appellant, Jordan v. Phillips, 29 So. 831, 126 Ala. 567, and Dallas Compress Co. v. Smith, 67 So. 289, 190 Ala. 423, are referred to as if affording some support for appellant's case. As for the case first named, unless it may be distinguished on some difference of fact, it must be said that it overlooked the decision in Robinson v. Pierce on the subject of the execution of powers, and was based upon the authority of adjudications by the courts of states where the rule prevailed which was considered and rejected in Robinson v. Pierce. This will appear on a reference to 27 Am. Eng. Encyc. Law (1st Ed.) p. 232, and note. As for Dallas Compress Co. v. Smith, in that case the court endeavored to the best of its understanding to follow the doctrine of Robinson v. Pierce as far as it was applicable to the circumstances of the case then under consideration; but we said: "In the present case (Dallas Compress Case) the grantor back to whom appellants," who stood in opposition to the remainderman, as does appellant in the case now here, "trace their claim to the estate had no fee, nor, after the death of the settlor, any power of disposition whatever," and the right of the remainderman to the corpus of the estate was upheld on principles conceded in Robinson v. Pierce.
I think it worth while to note further the fact that in Robinson v. Pierce, and, for that matter, in Dallas Compress Co. v. Smith also, both legal and equitable rights of the parties were taken into consideration, whereas, here and now, the result depends upon the one strictly legal question stated above — legal as contradistinguished from equitable. There is, therefore, no occasion for referring to any statement of equitable doctrine, or any doctrine, legal or equitable, other than that upon which, in my judgment, this case must turn. With this reservation, not greatly material perhaps, I concur in what has been written for the court.