dissenting. Mrs. S. I. Harris, late of this State, died in the city of Columbia, leaving of force a last will and testament, a copy of which is found in the record, in which she devised and bequeathed her whole estate, real and personal, to her nephew, the defendant, “Julius H. Walker, and his heirs to the use of the said Julius H. Walker and his heirs, in trust, nevertheless, for her daughter, Mrs. Mary Delia Blount, during the term of her natural life,” upon certain terms and conditions, with certain powers of sale, &c., &c., to the trustee, and upon the death of Mrs. Blount the said property, or what remained unconsumed and undisposed of, was bequeathed and devised to the issue of Mrs. Blount, &c., and upon default of issue surviving her, th< n the same was devised to such person or persons, &c., as the said Mrs. Blount might appoint by her last will and testament, &c., and upon the death of Mrs. Blount, the trusts *31of the will were to be regarded as executed, &c., in favor of the person or persons designated as remaindermen in the third clause of the will, without any relinquishment or transfer of trust by the said trustee. At the death of Mrs. Harris, she left surviving her, Mrs. Blount, an only daughter; her next of kin after the daughter being the defendant, Mrs. Walker, an only sister. Mrs. Blount died shortly after her mother, leaving no issue surviving her, and without having executed the power of appointment given to her in the will of Mrs. Harris. See Blount v. Walker, 28 S. C., 515.
Now, upon this state of facts, the question has arisen, who is entitled to the property mentioned in the will of Mrs. Harris ? Should it go to the estate of Mrs. Blount, the daughter who was sole heir of Mrs. Harris at her death; or should Mrs. Walker, ■the sister of Mrs. Harris, be entitled as the heir when the life estate of Mrs. Blount fell in by her death, leaving no issue and having failed to appoint? His honor, Judge Hudson, who heard this question below, holding that the trusts of the will of Mrs. Harris having failed, the property became intestate property, and Mrs. Blount being the sole heir of Mrs. Harris at her death, was entitled (Pulliam v. Byrd, 2 Strob. Eq., 185), who having died, leaving her husband and her aunt, Mrs. Caroline Walker, as her heirs, the said property should go to them according to their rights, to wit: the personal property to the husband, the plaintiff, and the real estate one-half each to the husband and Mrs. Walker. The defendants, in their appeal, deny the correctness of this decree, contending that the time for ascertaining the'heirs of Mrs. Harris, to whom the property should go as intestate property, was the death of Mrs. Blount, and that Mrs. Walker being the only surviving heir at that time, she became entitled to the whole estate.
As appropriate to the discussion of the issue here, we may state the following legal propositions, which we suppose will be conceded without question: 1st. Where a party dies leaving no last will and testament, he dies intestate as to the property, real and personal, of which he was seized and possessed at the time of his death. 2nd. Where he leaves a last will and testament, and yet fails to dispose of some of his property or of some interest or estate there*32in, he dies intestate as to such undisposed of property or interest or estate. 3rd. While a decedent may by his last will and testament direct that such of his heirs as may be in existence at a certain time after his death shall take his estate (for instance, where he gives a life estate, and then the remainder to go to such of his heirs as may be in existence at the termination of said life estate, said heirs will take the estate), yet where he dies without such a disposition, in other words, intestate, his heirs at his death alone can claim. The reason being, that in such last case, the heir claims by operation of law, and not by virtue of the will, and the law never casts the estate upon any except the heir in being at the death of the decedent. An heir is defined to be he upon whom the law casts.an estate immediately upon the death of the ancestor. These propositions, we think, present familiar legal principles, and without citing authority now, we may say that, in our opinion, they are absolutely unassailable : and if so, it must follow’ that if Mrs. Harris died intestate as to any portion of her property, her daughter, Mrs. Blount, being her sole heir at the time of her death, she was entitled thereto, and upon her death it would go to her heirs as decreed by the Circuit Judge.
The vital question, then, in the first instance is, did Mrs. Harris die intestate as to the property in question T There is no doubt but that Mrs. Harris left a will, and yet it is equally as certain that there w7as no beneficial interest disposed of to any one, except a life estate to Mrs. Blount. There was a contingency which, if it had happened, would have accomplished a disposition of the whole estate; but it not happening, it was the same as if no such contingent disposition had been attempted, and the will should now’ be read as if such provision had not been incorporated therein. And suppose the will had been left in such condition, without the suggested disposition incorporated ; suppose the will had simply given to Mr. Walker the property in trust for the use and benefit of Mrs. Blount during her natural life and nothing more; could there be a doubt but that Mrs. Harris would have died intestate as to the entire remainder or reversion, and that the law would have cast the same upon her *33heir or heirs in being at her death, who in this case was Mrs. Blount ? Certainly not.
It is said, however, in the argument of appellants, that Mrs. Harris did not really die intestate, or at least we so understand the argument; that, on the contrary, she disposed of her whole estate, the entire fee, to Mr. Julius II. Walker, and in such way that even it was put beyond the reach of the statute of uses. Admit this to be true, to wit, that the entire fee was given to Mr. Walker, and yet it would not follow, it seems to us, that Mrs. Harris did not die intestate, or, if so, where is the foundation of Mrs. Walker’s claim ? She certainly cannot claim under the will of her sister ; her name is not mentioned therein, nor is there any indication there that Mrs. Harris intended that any portion of her estate should go to Mrs. Walker. In fact, if Mrs. Harris did not die intestate, neither of the parties contending here is of right before us. But we think that Mrs. Harris did die intestate as to all but the life estate given to Mrs. Blount, and that the fact that her entire property was given in fee to Mr. Julius II. Walker makes no difference.
It is conceded that no beneficial interest in the property was given to Mr. Walker, and therefore that he cannot hold it for himself and enjoy it, although the statute of uses may not be able to extract it. It is conceded, too, that he must give it up to some one. It must be also conceded that he cannot yield it to any one as a legatee or devisee under the will, because the will has provided for no legatee or devisee. He must give it up, then, as intestate property, which, of course, he could not be required to do, unless Mrs. Harris died intestate. In any event, it being perfectly clear that Mr. Walker, the trustee, having no beneficial interest in any part of the estate, and no beneficial interest therein being found bequeathed or devised to any one else after the termination of the life estate of Mrs. Blount, Mrs. Harris died without a final disposition of said beneficial interest — intestate thereof — and in such case, though the statute of uses cannot be invoked as a means of passing the property to the heirs at law, it would be a reproach to the law and the courts if no way could be found by which it could he thus passed. It will be admitted, however, we suppose, that if Mrs. Harris had simply bequeathed *34and devised-her estate to Mr. Walker in trust for Mrs. Blount for life, without giving the fee to him, or without fixing it in him so indelibly as contended for, but had put him in control to manage, &c., for Mrs. Blount, that then the statute of uses would not have carried the legal estate to Mrs. Blount. Nor would such a state of facts have prevented Mrs. Harris from dying intestate as to the estate beyond the life estate.
Now, we think that notwithstanding the entire fee in the property was given to Mr. Walker, and given in such way and by such language as would ordinarily have put it, as we have already said, beyond the reach even of the statute of uses, yet when we look at the purposes of the trust imposed upon Mr. Walker, we are warranted by well established equitable principles, applicable to such cases, to hold that his legal estate should be no larger than demanded by the trust estate under his charge, and although he may have technically a fee, yet said fee will be cut down to the proportions of the said trust estate. And inasmuch as here the trust estate put in charge of Mr. Walker was only a life estate, the complete execution of which could be accomplished by a legal life estate in him, the courts, for the protection of the interests of the heirs of Mrs. Harris, should hold that the fee to Walker has been thus cut down to a life estate, and upon the death of Mrs. Blount, the life tenant, the trust is ended, and the heirs of Mrs. Harris became entitled to the possession of the property. See Sugden on Powers, *9, section 5 ; Perry on Trusts, section 312 ; several of our own cases, to wit: Farrow v. Farrow, 12 S. C., 172; Williman v. Holmes, 4 Rich. Eq., 476. And many other cases might be cited.
The doctrine is fully stated in Perry on Trusts, from which valuable work the following is copied at section 312: “In all cases,” says Mr. Perry, “where an estate is given to one for the use of another, in such manner that the statute of uses steps in and executes the estate in the cestui que trust, the statute executes in the cestui que trust only the estate that the first donee or trustee takes, that is, the statute executes or transfers the exact estate given to the trustee. * * * While this is the rule in respect to estates which the statute executes, a very different rule applies to estates upon a trust or- use not executed by the statute. *35In these cases the extent or quantity of the estate taken by the trustee is determined, not by the circumstances that words of inheritance in the trustee are or are not used in the deed or will, but by the intent of the parties. And the intent of the parties is determined by the scope and extent of the. trust. Therefore the extent of the legal interest of a trustee in an estate given to him in trust is measured, not by the words of inheritance or otherwise, but by the object and extent of the trust upon which the estate is given. On this principle two rules of construction have been adopted by the courts: First, wherever a trust is created a legal estate sufficient for the purpose of the trust shall, if possible, be implied in the trustee, whatever may be the limitation of the instrument, whether to him or 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 requires.” This seems to us to be directly in point, so much so as to justify the long quotation above.
But even if this is an erroneous view of this subject, and it be true that Mr. Julius Walker was invested with the fee, which the statute of uses, with all of its mysterious power to transfer title from one to another, could not touch, yet how7 could that determine which of the two, whether Mrs. Walker or Mrs. Blount, was the heir of Mrs. Harris, upon whom the law would cast the estate as intestate property ? Supposing the fee in Mr. Walker is of the character claimed by appellants’ counsel, we think they have clearly demonstrated that it was not executed by the statute; but we fail to see that such a result redounds to the benefit of Mrs. Walker; we fail to see that that fact fixes Mrs. Walker as the heir of Mrs. Harris ahead of Mrs. Blount.
But it is said there was a resulting trust here. ' What is a resulting trust? In brief, a resulting trust is where no express trust is created by the parties, but the law implies one from the acts of the parties, whether they were intended to create a trust or not. It arises from the operation of law. One example of a resulting trust is when a trust is declared only as to a part of an estate; and nothing is said as to the residue, the residue remaining undisposed of remained to the heir at law. So where a con*36veyance is made upon sucb trusts as shall be appointed, and there is a default of appointment, or where it is made of a particular trust which fails of taking effect, or is not declared, or is illegal. The trust in such cases would result to the settler or his heirs, and thus it is said in Perry on Trusts, section 15*2 : “If upon a conveyance, devise, or bequest, a trust is declared of a part of the estate only, or the purpose of the trust does not exhaust the whole beneficial interest, the trust in the remaining part or interest will result to the settler or his heirs.”
So that if there was a resulting trust here, arising either from the fact that there was a failure of appointment or failure of a particular trust, or that a trust had been declared of only a part of the estate, or that the whole beneficiary interest had not been exhausted by the trust declared, then such resulting trust arising as it does in a last will and testament, which could only take effect at the death of the testatrix, would be a resulting trust in favor of her heirs at law alone. And the question would again return, who is the heir at law ? To which question we repeat the response already made above, taken from that great law writer, Blackstone: "‘That it is him upon whom the law casts the descent immediately upon the death of the ancestor.”
Judgment reversed.