Opinion,
Me. Chief Justice Paxson :Under any view we may take of this case, the plaintiffs cannot recover in this action. If they are right in their contention that the deed to James Hamilton created a valid separate use trust in favor of his mother, Isabella Hamilton, they are not entitled to the possession of the real estate in controversy, for the reason that the husband of Isabella Hamilton is still living, and entitled to his curtesy therein. Mrs. Hamilton having an equitable estate in fee, her husband would be entitled to his life-estate: Dubs v. Dubs, 31 Pa. 149; Rank v. Rank, 120 Pa. 191. We might well affirm this judgment without more, but, as we have the whole question before us, we prefer to decide it now, to prevent further litigation in the future.
The trust contained in the deed from Stewart Hamilton et ux. to James Hamilton is as follows: “ In trust, nevertheless, for the use of said Isabella Hamilton, wife of the said Stewart Hamilton, during her natural life, and at her decease then to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive for her own use the rents, issues thereof, subject to the taxes and costs of executing this said trust.”
The question is, what estate did Mrs. Hamilton take under this conveyance ? The contention of the plaintiffs is that she *266took only a life-estate; that the deed created a separate use trust in her favor, which must be supported for her protection. It is to be noticed that the language does not create a technical separate use trust, nor is there anything from which we can draw the inference that a separate use trust was intended by the grantors, or even contemplated by them. It must not be overlooked that the deed to James Hamilton was made by Mrs.. Isabella Hamilton and her husband, in trust for the said Isabella. Had there been a conveyance to her directly, instead of to a trustee, there can be no doubt that it would have passed the fee. The added words, “ share and share alike,” referring to the “ heirs,” would not have been sufficient to take it out of the rule: Physick’s App., 50 Pa. 186; Ogden’s App., 70 Pa. 501. Does the fact that a trust was interposed make any difference ? This depends upon the character of the trust. If it is a separate use trust, or one which it is necessary to preserve for any purpose, Mrs. Hamilton’s interest would be limited to a 'life-estate. As was said by our Brother Sterrett in Little v. Wilcox, 119 Pa. 448: “ A trust is never executed by the statute when its preservation is necessary, either for the protection of a feme covert, spendthrift child, or to support a contingent remainder, or to serve some other useful and lawful purpose.” We see no such purpose to serve in this case. It is not, as before observed, a separate use trust in terms. It provides no protection or restriction which is not given by the act of 1848; and while separate use trusts may be created since the passage of that act, and may often be very useful td protect a woman from the importunities of her husband, or from her own weakness, we are not disposed to strain a point to create such trust by mere implication. The trustee in this case had no active duties to perform; it is a passive, dry trust, with no interest to guard, no rights to protect. In such case, the cestui que trust is entitled to a reconveyance of the legal title; equity will consider that done which ought to be done, and declare the legal title in Mrs. Hamilton. It then comes within the rule in Shelley’s Case, and the life-estate and remainder coalesce, the effect of which is to give the fee to Mrs. Hamilton. We need not pursue the subject further, in view of the careful and elaborate opinion of the learned judge below.
Judgment affirmed.