dissenting. W. T. Gilmore, and his wife, M. E. Gilmore, having determined to separate and live apart from each other, entered into an agreement by which the said W. T. Gilmore was to convey certain real estate, together with other property mentioned in the complaint, for the support and maintenance of his said wife, to B. H. Massey, the appellant, as trustee.
Accordingly, a deed of indenture was executed by W. T. Gilmore, B. H. Massey and the said M. E. Gilmore, by which said property, real and personal, was conveyed “ to the said Massey, to him and his heirs forever, in trust, that he should allow M. E. Gilmore to occupy, use and enjoy the same, or that he should collect and receive the rents and profits thereof and apply the same to the support of the said M. E. Gilmore in the same manner as if she were sole and unmarried.” And, further, “ that it shall be lawful for the said B. H. Massey, by deed or other sufficient writing, by and with the written direction and approval of the said M. E. Gilmore, to sell, transfer, deliver and convey the whole or any part of the property and estate herein conveyed and released, to such person or persons, and for such sum or sums of money or other valuable consideration as to him shall seem wise and prudent; and to sign and deliver good and sufficient title thereof to the purchaser; and by and with the written direction and approval of the said M. E. Gilmore, to re-invest the proceeds of said sale in other property better adapted to the wants of the. said M. E. Gilmore, but subject to the same trusts,” &c. And, further, “ that M. E. Gilmore may, by her last will and testament, give, devise and bequeath the whole property hereby conveyed, or that which may be substituted in its place, or may remain unexpended at her death, to such person or persons, and in such proportions as she may *289direct and appoint.” The said M. E. Gilmore, consenting “to accept the same in full satisfaction for her support and maintenance and all alimony whatever during coverture.”
The property mentioned in the deed went into the possession of the trustee and was enjoyed by Mrs. Gilmore during her life. Mrs. Gilmore died in 1878, without making any disposition of the property either by appointment or in writing, by will or otherwise. In the meantime W. T. Gilmore had also died, largely in debt, and his other property proving insufficient to pay his debts, his creditors instituted this proceeding to make the property, conveyed in this deed to the use of his wife, liable for his debts, claiming that a life estate only was given to her, and that, upon her death, the property reverted to the estate of the said W. T. Gilmore. Judge Kershaw, who heard the case, sustained the claim of the plaintiff, and decreed the property liable to W. T. Gilmore’s creditors.
Numerous exceptions were taken to this decree, but, upon examination, these exceptions will be found each to raise the same question, which is : Did Mrs. Gilmore take]a life, or a fee simple estate under the deed referred to ?
If I felt at liberty to construe this deed without regard to the legal effect of the terms employed, and untrammeled by previous decisions in analogous cases, I might reach a different conclusion from that which a legal construction and the decided cases may demand.
The powers granted to the wife are almost unlimited. She was authorized to take possession and to occupy the property; .to consume in its enjoyment all or any portion of it - to dispose of it during her life upon such consideration as she saw proper; and, finally, “ if any remained unexpended at her death, to give? bequeath, and devise it to such person or persons as she might direct or appoint, as fully as if she were sole and unmarried.”
These are the powers which usually belong to an absolute estate, and if we were to confine our attention to the consideration of these, as alone bearing upon the question under discussion, it would be difficult to shut out the conclusion that it was the intention of the parties here to create an absolute estate. *290But many eases, very similar iu their facts to this ease, have been passed upon and decided in our own courts.
Ve must look at these cases, and, extracting the principle upon which they have turned, apply it to this case and decide it as this principle shall require.
It is a familiar principle, found in all the elementary books on the subject of estates, that the term “ heirs ” is the apt and legal term uniformly to be used in the creation of estates of inheritance. At one time no other term would answer the purpose, and no estate of inheritance could be created without its use. This rule, however, has been relaxed somewhat, and especially in the case of wills and devises. It has been relaxed in these, because it has been thought that such instruments were entitled to a more liberal construction than others, on account of the emergency which sometimes surrounds the parties executing them — different from that which usually attends the preparation of other papers. In accordance with this relaxed rule, it has been held in many cases that no words of limitation are necessary in a devise to convey a fee simple estate. McAllister v. Tate, 11 Rich. 509. And in the general statutes of this state it has been enacted “ that a gift of land by devise' shall be considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator, expressed or implied/5 Gen. Stat., ch. LXXXVI., § 9. If, then, the contest here was over the construction of a devise, with the enlarged powers given to the devisee, as are found in this deed, there would not be much difficulty under the principle referred to above in determining the question at issue. The amplitude of the powers conveyed, accompanied with the indefinite character of the estate created, would sufficiently indicate the intention of the parties, and would so clearly mark the estate as an estate in fee simple, that there could be but little doubt on the subject. Pulliam v. Byrd, 2 Strob. Eq. 142.
But the instrument in this case is not a devise — it is a deed. We have found no authority for extending the principle which, as we have seen, applies to devises, to estates created by deed. On the contrary, as far as we have been able to discover, the common law rule requiring the use of words of inheritance to *291create a fee remains unchanged as to deeds, and the term heirs must still be employed in such instruments when it is desired to create such an estate. Knotts v. Hydrick, 12 Rich. 318; 4 Kent 5.
No such term is found in this deed qualifying the estate conveyed to Mrs. Gilmore; and if the estate here was a legal estate, and conveyed directly to her without the intervention of a trustee, there would be no room for the position that a fee simple had been created and given to her. The principles referred to above would settle the question at once. In such case, in the absence of words of inheritance and all other words limiting or defining the duration of the estate, under the principle that the deed must be construed most strongly against the grantor, and, therefore, that the largest estate that the language employed would carry, must have been intended, the court, no doubt, would conclude that Mrs. Gilmore took a life estate, with full power of disposi-sition and appointment, according to the terms and provisions of the deed; and the case would end at this point. .
But the estate conveyed here is not a legal estate; it is a trust estate. Will that fact modify, change or enlarge this principle, is the question which now opens for consideration.
It has been decided in this state, first as far back as 1811, and frequently since, that the character of trust estates, both of real and personal property, must be determined in equity upon the same rules of construction as are applied to legal estates. Cudworth v. Thompson, 3 Desaus. 256. They have generally the same incidents and qualities, and in endeavoring to ascertain the quantity of a given trust estate, equity follows the same rules, and applies the same principles, which, in a like purpose, the law courts apply to estates. 2 Washb., Book 2, ch. III., §§ 2, 3; 4 Kent 6.
It would follow, then, that this being an estate in equity, or a trust estate, would make no difference as to the questions involved.
These general principles are not contested by the appellant, as we understand. But it is contended that, although an absolute estate is not given in terms to the cestui que trust,Mrs. Gilmore herself, yet that such an estate is given to her trustee — the conveyance to *292him being in terms “ to him and his heirs forever.” That by these words the fee passed out of the grantor upon the execution of the deed; and this fact, lifting the case from under the principles referred to above, operates to enlarge the estate in the cestui que trust into an absolute* estate, and without possibility of return to the grantor. Now wé have seen that the estate which was given to Mrs Gilmore, when considered by itself and judged by the rules applicable to the construction of a deed like that under which she held, was a life estate, nothing more. Can the fact be, that because, in the same instrument a fee was given to her trustee, who was to hold for her use and benefit, that that will enlarge her life estate into a fee simple ? As to the question of intention, it may be asked if such was not the purpose of passing the entire estate out of the grantor into the trustee, what was the purpose ? It certainly could not have been for the benefit of the trustee, and it is contended, therefore, that it must have been for the benefit of the wife.
It will be remembered that Mrs. Gilmore was invested with the power to sell and convey during her life, or rather that thq trustee was áuthorized' to do so upon her written directions. She was also empowered to dispose of the entire estate by will. Was it not necessary, for the purpose of meeting the exercise of' these powers on the part of Mrs. Gilmore that some one should be clothed with the fee so as to be able to convey to her vendee or appointee, as the case might be, that full estate which she-could create or appoint under the provisions of the deed, and yet, having but a life estate herself, had no power to convey it to such vendee or appointee ? This may have been the reason for investing the trustee with the fee.
“ Where an estate is given to trustees in fee upon trusts that do not exhaust the whole estate, and a power is superadded which can only be exercised by the trustees conveying in fee simple, the trustees will take the fee, and the estate conveyed by them will be sustained by the fee in them, and not by the-mere power.” Perry on Trusts, § 316, p. 293. It is true that by this author, (Section 312), it is stated that the statute can only execute in the cestui que trust the estate which the trustee himself takes, that is, the statute executes or transfers the exact-*293estate given to the trustee. But we have nowhere found the doctrine suggested that the quantity of the estate conferred upon the cestui que trust is to be measured by that which may be conferred on the trustee instead of by the language which is used as to the cestui que trust herself.
It is often important to know the exact legal interest of the trustee in the estate, not so much, however, to ascertain the quantity of interest conveyed to the cestui que trust, but to measure the powers of the trustee. On this principle “two rules of construction have been adopted by courts: First. "Whereever a trust is created, a legal estate sufficient for the purposes of the trust shall, if possible, be implied in the trustee, whatever may be the limitations in the instrument, whether to him and his heirs or not. And, second, although a legal estate may be limited to a trustee to the fullest extent as to him and his heirs, yet it shall not be carried further than the complete execution of the trust necessarily required.” Perry on Trusts, § 312. See, also, §§ 318, 319, 320.
We do not think that in this case the life estate of Mrs. Gilmore was enlarged to a fee on account of the fact that the trustee, for the purposes of his trust, was invested with such an estate.
It may be that upon the death of the husband, there being then no longer any necessity for a trustee, that the use became executed in the wife. If this be so it could not help the appellant, because the statute could execute in her no greater legal estate than she previously had in equity, which, as we have seen, was a life estate.
Lastly, upon the termination of the life estate of Mrs. Gilmore did the fee result to the debtor or his heirs, or did it pass to the heirs of Mrs. Gilmore ?
The general rule on this subject seems to be that where the use as to a part is only declared, the residue would result to the grantor or his heirs, if he be dead. As where a conveyance is made by a man to the use of his heirs, and no use is declared of the same during his life, an estate for life arises in his own favor by implication. So, besides the use to his heirs, if he had declared an immediate use to one for years, so much of the use as *294would be left between the expiration of the term for years and the grantor’s death, when the use to his heirs would be executed^ would result to him.
So, too, and what is more in point: “ If the limitation be by A for a valuable consideration to B in fee, to the use of B for life, without any other declaration, the use in fee, after the death of B, would result to the grantor.” Washb., vol. II., 397.
“As'a general rule, it is true that where the owner, for a pecuniary consideration, conveys lands to uses, especially declaring a part of the use, but making no'disposition of the residue, so much of the use as the owner does not dispose of remains in him.” Id. 397, quoting from a New York case.
Under these principles I think there was a resulting trust in this case to the grantor or his heirs, and I concur with Judge Kershaw in so holding. This is so, because a use in part only of the estate was declared in the deed, i. e., a life estate in Mrs. Gilmore, leaving the residue undisposed of. It is true, as is contended by appellant, that where the deed is based upon a valuable consideration, however small, even if it be a pepper-corn, as stated in some of the cases, this fact will sometimes be laid hold of by the courts as an evidence of the intention of the parties to carry the whole estate, and it will usually be held to prevent a resulting trust.
But this doctrine does not apply to a case of this sort. There is a qualification to that class of cases where a resulting trust is claimed between the original parties, upon the execution of a deed to one party, where the purchase money is paid by another,, or where a voluntary deed is executed by one to another, without any declaration of trust, and the question arises to whom does the property belong, the grantor or the grantee ? In such case ■the fact of consideration will determine the question. But, as we have said, this doctrine has no application here. And even if it had, we do not see that any valuabfe consideration was present in this case. There is no evidence that the nominal consideration mentioned in the deed was ever paid by the trustee, or ever expected to be paid, and the husband was certainly under both legal and moral obligation to support and maintain his wife.
Whether the property which he allowed her the use of during *295life was more than sufficient for this purpose, we do not know nor is that material. Was it not his duty to furnish this, independent of any covenant that she might make ? But I do not see that any such covenant was made by her, or any other legal consideration furnished by her, as a foundation of his deed, such as, in contemplation of the law, would prevent a resulting trust.
For the reasons given herein, I have been unable to concur in the opinion of the majority of the court. That opinion, while admitting the general rule as to the necessity of the use of the word “ heirs ” to convey a fee in a deed, holds that there are exceptions to this rule, and that this case falls under one of these exceptions, and Mr. Washburn,- Book 2, ch. III., ¶¶ 40? 43, is referred to.
I do not understand Mr. Washburn as sustaining the views of the majority. In my judgment the paragraphs cited refer to the estate of the trustee and not to that of the cestui que trust. The idea suggested is that whatever may be the quantity of the estate, in terms, given to the trustee, yetj if the interest conveyed to the cestui que trust requires that the trustee shall have a fee, then the law will confer it upon him, although the word “heirs’7 is not used in the deed to him. In other words, whenever a fee is created for the use of the cestui que trust — a fee being necessary in the trustee to protect the interest of the cestui, que trust — he shall have a fee also. Mr. Washburn does not enlarge the rules by which it is to be determined whether or not a fee has been created for the cestui que trust. Nor do I think the cases referred to in the opinion of the majority fully sustain the position taken. In Villiers v. Villiers, 2 Atk. 71, Lord Hardwicke did say: “That if land be given to a man without the word ‘heirs’ and a trust be declared of that estate, and it can be satisfied in no other way but by the cestui que trust taking an inheritance, it has been construed that a fee passes to him even without the word ‘ heirs/ ” This is in exact accordance with the construction given above to the doctrine laid down by Mr. Washburn. The question being, what estate did the trustee take ? “ the man to whom the land was given ” — but not the. estate of the cestui que trust — Lord Hardwicke said that where the estate of the cestui que trust could be satisfied in no other way but by his taking an *296inheritance — that is, where an estate of inheritance was given to the cestui que trust — “ the man to whom the land was given,” that is, the trustee should also have a fee, although the word “ heirs ” was not used in the conveyance to him. The case of Fisher v. Fields, in which Chancellor Kent delivered the opinion of the court, arose upon an assignment of a soldier’s patent for land. The question was, whether the assignee was entitled to a fee when the word “ heirs ” was not used in the assignment. Chancellor Kent very properly said “that the' transfer of a soldier’s patent was not to be tested by the strict technical rules of the conveyances of land at common law.” And so would we say here on such a paper; but the paper here is a conveyance of land, and not a mere soldier’s patent.
Failing to agree with the majority, this is filed as my dissenting opinion.
Appeal sustained.