The opinion of the court was delivered by
Sergeant, J.The question in this case is, whether in the events that have occurred, the limitations in trust for the separate use of the daughters for life, and then over, take effect. If they do not, the plaintiffs are entitled, under the will, to one fourth each of the real estate, as tenants in common. It is admitted by the defendant, that the one fourth which belonged to Michael, passed, on his dying intestate and without issue, to the plaintiffs and defendant, as his heirs at law, and that the plaintiffs are entitled to one third each of that one fourth :~but he contends that as to the daughters shares under the will, they remain vested in-him subject to the trusts therein contained, and that partition ought not to be made.
The first impression produced by the perusal of this will is, that the estates devised to the daughters, whether converted into personalty, or remaining real estate, are subjected to the limitations in trust: but on an attentive examination of it, we are satisfied, that such a construction is irreconcileable with its general design, and with justice to all the testator’s children: and that the provision applies only in case of the sons taking at the valuation.
It is to be observed, that the estate both real and personal, is, in the first instance, given after the termination of the wife’s interest, to the four children, and to their heirs, executors, administrators, and assigns, equally to be divided, between them, as tenants in common, subjéct to the subsequent limitations.’ The inheritance is thus vested' in the daughters by apt words, and ought not to be taken from them, unless clearly so intended by the testator. The will goes on to direct, that in the division of the estate, the real property should be valued and allotted to the sons, and that the shares and dividends of his real and personal estate, in his will given or intended for his daughters, should remain and be vested in his wife and sons, whom he appoints executors, in trust for the separate use of the daughters *143for life, with limitations over. This seems to form one entire provision, and to contemplate the raising of the trust only in case of a division by the sons taking the lands at the valuation, on which the daughters’ rights in the land would be divested, and they would become entitled to money. The testator may possibly, have deemed it prudent to provide' a trust for money, which was not necessary in case of land; and there is certainly a difference between them, the money, if left to the daughters, might be claimed at once by the husband, as his own. The land would remain the wife-’s estate, unless she voluntarily consented to part with it by a deed acknowleged separate and apart from her husband, under the formalities provided by law, in relation to the transfer of the estates of feme coverts. It is true that from the influence of the husband, this is not always a protection: but it is one which in many instances enables the wife to frustrate the sale, or make terms with a purchaser.
But what chiefly weighs with me in giving this construction to the will, is, that the daughters would enjoy rights and benefits if the sons took at the valuation, which it is impossible for them to receive in any other way. For by the will the executors are, from time to time, to apply and pay over to the use of the daughters, both principal and interest of the shares and dividends: and by a subsequent clause, the principal of the dividends of the daughters in the valuation of the real estate, if taken by the sons, is not to be demandable by the daughters under five years; which plainly implies that the daughters should be paid the principal sum within a certain time. It is, moreover, observable, that the limitation over in the event of the daughters dying without child or children surviving, is only of the residue of the dividend which should then remain undisposed of by them; a clause which sepms to invest the daughters with the privilege of disposing of the fund to supply their necessities. But how can the daughters enjoy or dispose of any portion of the principal if their shares are to continue land impressed with the trusts ? Such a construction, moreover, makes it the interest of the sons to refuse to take the lands at a valuation, and thus to defeat the will of the testator; because by so doing, they or their children may chance to acquire the daughters’ shares undiminished, in case of their decease without child or children. For I see no mode of compelling the sons to sell the daughters’ shares in the land, and convert them into money; nor even a power in the will to make a clear title in 'fee simple for them, if the sons were so inclined, without taking at the valuation. The consequence is, that the sons, by their act or incapacity, might defeat one great object of the will, namely, the right of the daughters to enjoy the principal as well as the interest of their portions, and might restrict them to a pittance of rents during their lives, for the benefit of the descendants of the sons. This, it is very apparent, was never designed by the testator. On the contrary, his intention was, that the sons should take the lands, and pay to the *144daughters their portions in money, within a certain period, to enjoy and dispose of to their separate use, as their occasions might require, with a limitation over of-what might remain undisposed of. If the sons lose any benefit they might expect under the trust, it is because the dispositions of the testator have not been carried into effect.
As to the word rents, used in the will in relation to the trust, that may be satisfied by referring it to such rents as the sons might ‘receive, or be liable for between the period of the widow’s marriage or death, and their taking the land at a valuation. The other phrases in the will, such as, shares, dividends, apply as well, if not better to money than land.
On the whole, my opinion is, that the case has not arisen under which the trusts in this will, as to the daughters’ portions, could go into operation, and therefore, the real estate remained equally vested in the four children, as devised by the prior clause of the will. Under the will, the plaintiffs are tenants in common of one fourth each: by the decease of Michael, they inherit one third each of his fourth. The plaintiffs Elizabeth and Mary and the defendant John, are now entitled, as tenants in common in fee simple, to one third each of the whole real estate devised by the will.. It' follows, that partition may be made, and, therefore, according to the case stated, judgment is to be entered to that effect.
Judgment quod partitio fiat.