The opinion of the court was delivered by
Mu. Chief Justice Simpson.One Lucy Covington, late of Marlboro County, died intestate in 1882. Previous to her death, to wit, in December, 1852, being the owner of a certain tract of land, containing 208 acres, and described in the complaint, she executed a deed by which she conveyed all of her right, title, and interest in said land to one Stephen Pankey, in trust that he would permit her to enjoy the land during her natural life without rendering rent or hire, and after her death that the said trustee would convey the same to her children then living or to the children of such as might be dead, in equal shares, such child or children taking the share which its parents would have taken had such parent survived Lucy. Lucy left surviving her the plain*294tiff, Harriet Iluckabee, a daughter, and the numerous defendants named in the complaint as children and grandchildren. The deed to Pankey as trustee was duly recorded, but the trustee predeceased the said Lucy, and no other trustee has been substituted. Stephen Pankey, the trustee, rvas the father of Lucy, and the land was conveyed to him with certain personal property, his heirs and assigns forever, in trust, as stated. The land is in the possession of the defendant, William T. Newton, and his family. William T. Newton is the husband of Mary, the widow of a deceased son of the said Lucy.
It is claimed in the complaint that on the death of Lucy, an undivided estate in the land vested in the remaindermen mentioned in the trust deed, and the action seeks partition of said land between the plaintiff and the other remaindermen. The defendants, William T. Newton, his wife Mary, and Rebecca Wright, demurred to the complaint on five grounds — the first and second on the ground of defect of parties in the omission of certain persons therein named; the third on the ground thatPankey, the eldest son of Stephen Pankey, the deceased trustee, is not made a party; the fourth on the ground that the plaintiffs omit to state in their complaint whether they and the defendants have or own any other lands in common in the State of South Carolina besides the land described in the complaint; the fifth because the complaint does not state facts sufficient to constitute a cause of action.
His honor, Judge Witherspoon, who heard the cause, overruled all of the grounds except the third, which he sustained, holding that the eldest son of the trustee, or, if he be dead, the heirs of the trustee, should have been made parties; and he ordered that the plaintiffs have leave, within twenty days from notice of the filing of the order, to amend their complaint by making the eldest son or heirs of Stephen Pankey, the deceased trustee, parties, if they should be so advised. The plaintiffs have appealed on the ground that it was error on the part of the Circuit Judge to hold that the eldest son (or heirs) of Stephen Pan-key was a necessary party in the case. This holding is alleged to be error for various reasons stated in the grounds of appeal, all of which will be considered in connection with the question as *295to the necessity of making the eldest son of the trustee or the heirs of the trustee parties to the action. No exception has been taken by the defendants to the ruling of the Circuit Judge as to the other grounds in the demurrer, so that the only question before the court is that raised in the appeal of the plaintiffs above.
There can be no doubt that in contests over real estate where the fee is involved, that the holder of the legal title is a necessary party, otherwise the fee dannot be disposed of so as to be binding and effectual; and this applies as well to a trustee holding for the benefit of others as to parties holding for themselves. Story Eq. Pl., § 207. And incases where the fee is in a trustee and he be dead, if the estate be one of inheritance, the heirs or other proper representatives in the realty of the deceased should be made a party. Ibid., § 211; Leroy v. Charleston, 20 S. C., 77.
This is not denied by the appellants. It is contended, however, that by virtue of the statute the trusts under the deed in question were éxecuted, and that thereby the legal title to the land in dispute vested in the cestuis que trust upon the death of Lucy, all of whom are before the court. The case turns upon the soundness of this position. Did the statute execute the trust? It is familiar law upon this subject, that a trust is never executed so long as there is anything to be done by the trustee in the proper discharge of his duties as said trustee; or, as was said in Bristow v. McCall (16 S. C., 548), “where the trustee is charged with the performance of some duty in connection with the property, which cannot be performed except by the authority of the legal title vested in him, the statute has no application.” In McCaw v. Galbraith (7 Rich., 74), where one W. made a will in which he devised certain lands to one M. in trust, to have and hold for the use and benefit of a brother of the testator, if alive at his death, then residing in Ireland, the legal title to remain in the said M. until such time as the said brother, then an alien, should become qualified according to the act of Congress to take and hold real estate, and when he became so qualified, the said M. was directed to execute to the said brother a valid conveyance in fee of said lands, the court, in discussing the question whether *296this use was executed by the statute, said: “Not only is there a declaration that the legal estate shall be vested in the trustee, but there is the requirement of an act to be done by him, the conveyance of the estate in fee, which necessarily supposes the fee in him.”
In the case before the court there is the requirement of a similar act to be done by the trustee after the death of Lucy, the life-tenant. He is required to convey land to her children then living, or to the children of such as may be dead, in equal shares and proportions, the child or children of such deceased child or children representing his, her, or their father or mother, or fathers or mothers, and taking the share or shares which such father or mother, or fathers or mothers, would have taken had they survived. Trusts in favor of married women, or to preserve contingent remainders, are never executed. Jenney v. Laurens, 1 Speer, 365. Here the remainders were contingent, and it ivas necessary that the legal title should remain in the trustee until the contingency should happen, which was to determine Avho should take; A\hich being determined, the trustee was directed to convey. This Avas an act to be done, and without Avhich no title could pass. We do not think there Avas error in the Circuit Judge holding that this was not a passive trust, and that the use was not executed.
It is not necessary in a demurrer for defect of parties to give the names of those who should be joined. This, in many cases, Avould be utterly impossible. ‘ All that is necessary is to point out to the plaintiff the objection to his complaint in such manner as to enable him to amend by making proper parties. Story Eq. Pl., 543.
It is the judgment of this court that the judgment of the Circuit Court be affirmed.