The question which arises upon this application is, what interest or title passed to the devisees of W. Turpin, under his will; and whether the purchaser at the master’s sale will, under the master’s deed, obtain an absolute and indefeasible title to the premises, subject only to the incumbrance and conditions of the lease executed by Turpin before his death. The will is very inartificially drawn, and it is difficult, therefore, to say precisely what the testator intended by some of its provisions ; though I think his general intention is very obvious, unless there is something in other parts of the will, which are not before me on this application, that might lead to a different construction. The will was made in April, 1833, at which time Juda was about eighteen years of age, and her brother Edward was sixteen. The testator appears to have contemplated two events, upon the happening of which the devise in fee to Juda and Edward, as tenants in common, was to be defeated, either wholly or in part: First, the death of one of them before both had arrived at the age of twenty-one; and in that event the estate, which is devised to both as tenants in common provided they should both arrive at the age of twenty-one, is given to the survivor. Secondly, the death of both without children, either before or after they arrived at the age of twenty-one; in which *486event he devises the whole lot to Lucy Bates, and "her heirs, in fee. It does not appear, nor is it material to the decision of this case, whether Lucy Bates is still living. For if the limitation over to her and her heirs, was ever valid, the whole estate of the mortgagor, which he has derived under Juda and Edward, is liable to be divested by the death of Edward without issue living at the time of his death ; his sister Juda having already died childless.
I can see no objection whatever to the validity of this devise over, to Lucy Bates in fee, upon the happening of the contingency contemplated by the testator. It is the ordinary case of an executory devise, of the whole property in fee simple, limited upon a determinable estate in fee ; in the event of the death of the first takers without leaving children. Even if the word children, in this devise, should be construed to mean issue, so as to include more remote descendants, still it would not mean an indefinite failure of issues; o as to give an estate tail to the first takers. For the revised statutes declare that a limitation over, upon the death of the first taker without issue, shall be construed to mean without issue living at the time of his death. (1 R. S. 724, § 22.) This remainder to Lucy Bates is so limited that it must vest in possession, as well as in interest, at the termination of two lives in being at the death of the testator, if it ever vests ; to wit, upon the death of Juda and Edward, without children living at the time of their respective deaths. It could not, therefore, in any event, suspend the power of alienation for longer than two lives; even if this remainder in fee was not vested in interest, so as to be alienable during the lives of Juda and Edward. If these several estates and interests of Juda, and Edward and Lucy, are to be considered as legal estates, entirely separate and distinct from the direction to the persons named as guardians to receive and apply the rents and profits of the premises, the purchaser at the master’s sale will not obtain a good title to the whole premises. For he will have to take the title subject to the contingency of its being divested, in favor of Lucy Bates or her heirs, in *487case of the death of Edward without leaving issue at the time of his death. And if it should be held that the legal title to the whole premises was intended to be given to the persons named as guardians, during the lives of the three persons beneficially interested in the rents and profits, that would be still more fatal to the title of the purchaser. For it might render the whole devise void, as a suspension of the power of alienation for more than two lives in being ; according to the decision of the court for the correction of errors in the case of Lorillard’s will. Or, at least, it would render the estates or interests of the several persons beneficially interested in the rents and profits inalienable, during the continuance of the trust, under the provisions of the sixty-third section of the article of the revised statutes relative to uses and trusts. (1 R. S. 730.)
The conclusion, however, at which I have arrived, is that the testator only intended to give to the persons whom he calls guardians, the ordinary power of guardians while Juda and Edward were minors and incapable of attending to their own rights ; and that he did not intend to vest the legal title, to any part of the estate, in such guardians as trustees. He does indeed direct them to pay the annuity of $100 to Lucy Bates during her life. That, however, was only an incorrect method of expressing his intention that she should receive an annuity out of the estate, to that amount, during her life; and that while the guardians continued to receive the rents of the premises they should pay that annuity to her, and should pay over the residue to Juda for the support of herself and her brother. It is very clear that the testator intended that Lucy Bates should receive an annuity for life out of the rents and profits of the premises. And that appears to be a valid charge upon the premises, which a court of equity would enforce. Whether that interest was or was not inalienable under the provisions of the section of the revised statutes last referred to, is a question not necessary to be decided here. But if I am right, in supposing that it was not the intention of the testator to vest the legal title in the persons named as guar*488dians, then it is a mere charge upon the rents and profits of the land, which is alienable ; and not an interest in a trust for the receipt of rents and profits, which interest cannot be sold by the cestui que trust.
The estate of the mortgagor in the premises being incumbered "with this annuity, if Lucy is still living, and the presumption is that she is alive in the absence of any allegation to the contrary, that of itself would he a sufficient answer to this application. The motion of the complainant must therefore be denied, with costs, and the purchaser must be discharged from his purchase. And the premises may be re-sold by the master, subject to such claims as may exist thereon in favor of Lucy Bates for her annuity ; or in favor of her and her heirs, as devisee of the remainder in fee, in case Edward Butler should die without leaving issue surviving him.
Order accordingly.