We do not see upon what ground the trustees under the will of Mrs. Coggeshall can claim from the trustees under her settlement the conveyance of the undivided half of the Broad street estate, purchased by her after her will was executed. In application to real estate, her will, as that of a married woman, can only have effect by way of appointment under the deeds of trust then existing, which conferred upon her the power to appoint the persons who should succeed her in the estates embraced by them. By its recitals her will professes-to be in execution of that power, and to dispose only of the estates mentioned in the deeds, pointedly distinguishing, in this respect, between the real property, which it could affect only by way of appointment, and such personal estate as she had, or might acquire, which, under our statute of wills, her will might, and *Page 391 did, dispose of, in its character merely, of a will. That the testatrix supposed, for a long time, that her will operated upon her new purchase, — that at last, when she ascertained that it did not, she attempted to execute another will, by way of appointment under the trusts of the deed which conveyed her new acquisition, and which she failed to accomplish from bodily debility, cannot affect this question; since the appointment was not made in the prescribed mode, and the newly acquired half of the Broad street estate was consequently left to take the course marked out for it in default of such appointment, by the deeds of trust by which the estate was acquired.
These deeds, by reference to the trust deed of the other half of the Broad street estate, devote this half to precisely the same trusts. By virtue of them, Mrs. Coggeshall retained an estate for life for her sole and separate use, the rents and profits to be paid by the trustees upon her receipt or written order, with power to direct, in writing, the leasing, mortgaging, selling or exchanging the same; and in case of sale, to receive and apply or direct the investment of the proceeds thereof, and by will to appoint the estate to whom she would. Upon the death of her husband during her life, the estate was to be forthwith conveyed to her in fee, free from all trust; and in case of her death during the life of her husband, and in default of an appointment by her will, the trustees were "forthwith to convey said estate to her heirs at law, or other persons, in such proportions as they would severally be entitled to by the statutes then in force in Rhode Island." In other words, the trust, in form, constituted her an equitable tenant for life, with all the powers and privileges of an equitable tenant in fee, as to its disposal by, or descent from, her. Upon her death without a will, it was to be conveyed by the trustees to her heirs at law, or persons then entitled by law to take it, and in such proportions as the law directed in case of an intestate estate.
The main question in the case is, whether, under these dispositions, Mrs. Coggeshall reserved to herself, in the newly acquired half of the Broad street estate, an equitable estate in fee by virtue of the rule in Shelley's case, or an equitable estate for life only, — her heirs at law to take as purchasers, — for, as we determine this, *Page 392 we determine whether her husband is entitled to curtesy in that portion of her property. It might be a question under the distinction laid down by Lord Talbot in Lord Glenorchy v.Bosville, Cas. Tem. Talb. 8, and the English cases following, which have illustrated the distinction, whether the trust for the heirs, here raised, is, in the sense of a court of equity, anexecutory or an executed trust. No doubt, "another conveyance was to be made," and in that respect, "somewhat was to be done;" but that is the case with every trust, since none can be executed without a conveyance. The true test seems to be, — has the creator of the trust been his own conveyancer? has he left it to the court to make out, from general expressions, what his intention is, or has he so defined his intention, that you have nothing to do but to take the limitations he has given to you, and to convert them into legal estates? See Lord Glenorchy v.Bosville, 1 White Tudor's Lead. Cas. in Equity, 61, 62, notes (3d Am. ed.), and cases cited. It would be difficult to find in the trust here created for the heirs of Mrs. Coggeshall, any discretion left in the trustees or the court as to what or how, in the event contemplated, the heirs were to take!
The distinction, however, is important only so far as it affects the right of the court to apply, or to refuse to apply, the rule in Shelley's case to the limitations of a trust. If an executed trust, the limitations must be construed by that rule of law, precisely as if they were legal limitations; if executory, the court will look at the general purpose and particular intent of the creator of the trust, as expressed in the instrument, and construe the limitations as these may require. Ibid.
In the case before us, the trust is raised neither by a will nor by an agreement before marriage for a marriage settlement, but by a deed of the wife's estate executed by the husband and wife after marriage, for the purpose of directing how, in the contemplated events, the estate should go. In default of an appointment by the will of Mrs. Coggeshall, no other deed or instrument was intended to be executed by her, or by her and husband, by way of completing this settlement. The direction to the trustees to convey the remainder to the heirs at law of Mrs. Coggeshall is certain and explicit; and both upon principle and the decided *Page 393 weight of authority, the trust thus created for her heirs was not executory, but executed, in the only sense in which a trust can be. The usual definition of an executory trust, that it is one where something additional is to be done by the trustee, is plainly an imperfect one, as pointed out by Lord St. Leonards, in the case of Edgerton v. Brownlow, in 4 House of Lords Cas. 1; for, as he observes, in every trust, even in those called executed, there is still something additional to be done by the trustees, before the cestuis que trust can obtain the full benefit of the trusts created for their advantage. A trust "for B in fee," and a trust "to convey to B in fee," cannot be substantially distinguished; since the latter merely expresses what the former implies, and both are quite distinct from a direction to trustees, to make such a settlement of an estate upon B as would best ensure the continuance of the estate in him and his children. In the former case, the limitations are perfect, and nothing is left for the trustee but to execute them as directed; in the latter case, they are yet to be made, and the trustee is to make them, so as best to fulfil the intent and carry out the purpose of the settlor. In the former case, the trusts are said to be executed, in the sense of being definite or completely marked out; in the latter case, executory, since no mode of settlement is prescribed, but merely the intent orpurpose of the creator of the trust, to be carried out, as best it may, by a settlement to be made by the trustee. See Holliday v. Overton, 15 Beavan, 480; Lassence v. Tierney, 1 Mac. Gor. 551; Tatham v. Vernon, 4 Law Times Rep. (N.S.) 531, 533;Neves et al. v. Scott et al. 9 Howard, R. 196, 211; 2 Story's Eq. Jurisp. § 983, and n. 1; Hill on Trustees, 328, side paging; Adams' Equity, 40, 41, side paging.
Construing the trusts under consideration as executed trusts, we do not feel at liberty to depart from the long settled rule, that as a court of equity, we must construe them in the same way as legal estates of the like nature would be construed at law, upon the same language. 2 Story's Eq. Jurisp. § 983, and cases cited. As the estate for life reserved by Mrs. Coggeshall for herself, and the estate given by her to her heirs at law are both equitable estates, there seems to be nothing wanting to warrant the enlargement of her estate, under the rule in Shelley's case, into an equitable *Page 394 fee. Fearne on Conting. Rem. 52-57; Eaton v. Tillinghast,Trustee, and others, 4 R.I. Rep. 276, 280-2. Her husband would, therefore, be entitled to curtesy in this portion of her estate, unless the fact that the life estate was reserved to her sole and separate use, must be deemed to exclude him. Whatever doubts were once entertained upon this subject, (Hearle v. Greenbank, 3 Atk. 715,) it seems to be well settled now, that the reservation by the wife of the rents and profits of her estate to her sole and separate use, during her life, does not amount to an expression of an intent, on her part, to exclude her husband from curtesy therein at her death. The exclusion of the husband might, if the intent to exclude him had been expressed, have been total, as in Davis v. Bennet, 2 P. Wms. 316; but, as in this case, the exclusion was partial only, — during her life, — the court can have no authority to restrain him from the enjoyment of his general right, as tenant by the curtesy in the equitable estate in fee of his wife. Morgan v. Morgan, 5 Madd. R. 248, 250;Pitt v. Jackson, 2 Bro. C.C. 51; 4 Kent's Com. 30-32.
Upon the death of Mrs. Coggeshall, the half of the Broad street estate in question passed by descent to her two daughters, as her heirs at law, subject to the curtesy of their father; so that, by the terms of the settlement, they were "forthwith" entitled to a conveyance of the same from the trustees. When one of the daughters, shortly after, died, her interest in the half of the estate descended to her sister, as her next of kin of the blood of her mother, from whom the estate came or descended to her. Rev. Stat. Ch. 159, § 6. The sixth section, as it now stands, or the ancestral clause, as it is called, of our statute of descents, has always been held to override all the previous canons of the statute, and it excludes Mr. Coggeshall from inheriting any portion of this estate from his deceased daughter.
The sale of the Hope street estate, by the complainants, trustees under the will, for forty-three shares in the capital stock of the American Screw Company, was clearly within the power vested in them; and under the circumstances stated in the bill and admitted by the answers, seems to have been a discreet exercise of their power. The pledge of a portion of the shares for the purpose of raising money with which to pay the mortgage on *Page 395 that estate, and thereby to enable them to give a clear title to it to the purchaser, was, as the means to the sale, fairly within their power; and the subsequent sale of the shares, or of some of them, after they had appreciated, seems to us unobjectionable in every respect. We advise that so much of the proceeds of sale as is necessary to redeem the shares of stock pledged as aforesaid should be applied to that purpose, as the best and most prudent application that can be made of it in the administration of the trust estate. Had the trustees sold the estate for money, clear of the mortgage, their first duty would have been to have applied the necessary portion of it to the payment of the mortgage; the balance only representing the amount realized by them from the sale of the estate. The course advised is, under the circumstances, only the performance of the same duty.
We advise, too, the application by the trustees under the will of so much of the proceeds of sale of said shares as may be necessary to the disencumbering of the portion of the Broad street estate held by them, by the purchase from the Providence Institution for Savings of the mortgage imposed by the former trustees with the assent of Mrs. Coggeshall upon the whole of that estate, as the safest and most proper application and investment of such proceeds that can be made. The mortgage rests upon an estate, in the whole of which James H. Coggeshall has an estate for life, and in the undivided half of which his surviving daughter, Jessie L. Coggeshall, has an estate in fee. Should this daughter survive her father, she will, under the appointment of her mother, be entitled to a fee in the other undivided half of said estate, and to these proceeds, however invested, in absolute property. In this contingency, it is obvious, that such an application of the proceeds will disencumber the common estate for the benefit of both, and without prejudice to the rights of either. Should, however, the father survive the daughter, whilst the fee of the purchased half of the Broad street estate will pass to her heirs or devisees, the other half of that estate, together with the proceeds of sale of the shares, now vested in the trustees under the will, will go to the appointees of her mother. Against such an event, it is proper that the trustees under the will should take an assignment of the mortgage, and keep it alive to protect the *Page 396 trust estate in their hands, in any questions of exoneration and contribution which may then arise with regard to it, between the appointees under the will, and the heirs and devisees of Jessie L. Coggeshall, in whom the purchased half of the Broad street estate is now vested in fee. Both because these questions may never arise, and because other parties, not before the court, will be interested in them, we must decline to answer them now; but shall leave them to be litigated when they arise, and by the parties who may then be interested in them.
As no scheme is presented for the investment of other trust moneys in the hands of the complainants, we must decline to advise with regard to their investment; confidently hoping that the large powers entrusted to the complainants, in this respect, under the will of Mrs. Coggeshall, will be discreetly exercised by them.
We are not aware of any fact material to our decision, and not for the advantage of the infant defendant, which is not proved by the deeds and instruments exhibited with the bill, and see no need of a reference to a master.