The rule in Shelley’s case requires that both the life estate limited to the ancestor and the estate in remainder to the heirs shall be of the same quality,—that is, both legal or both equitable,—and where one of the estates is legal and the other equitable the rule does not apply, because if the prior estate is an equitable or trust estate and the subsequent estate is a legal one, the two do not unite as an estate of inheritance in the ancestor. (Preston on Estates, 263; 2 Washburn on Real Property, sec. 1610; Glover v. Condell, 163 Ill. 566; Harvey v. Ballard, 252 id. 57.) The opinion of the majority of the court recognizes this rule and holds that the estate given to William Nowlan in trust was a fee. Relying upon the rule that in a devise to a trustee he will acquire an estate commensurate with the powers conferred and the purposes to be accomplished and if a fee is required to enable the trustee to perform his duties he will take that estate, it is said that an express devise of the trust estate to a trustee, coupled with the power to sell, necessarily vests the trustee with the fee. The case of West v. Fitz, 109 Ill. 425, is cited, but in that case the court said, on page 439: “We do not wish by this to be understood as saying that a trustee could not be given a life or other less estate, only, and yet be clothed with a power to sell upon a given contingency, or that instances of this kind cannot be found in the reported cases; but what we intended to say, and do say, is, no case can be found adopting such a construction where the limitations of the will are like the present. The construction suggested is never adopted except where the estate of the trustee is expressly or by necessary implication limited to an estáte for life or for a term of years.” This is precisely the present case. The duties imposed upon the trustee are the collection of the rents, issues and profits of the premises, the payment of taxes, repairs and improvements and the cost and charges of carrying out the trust, and the payment of the net proceeds, annually, to George Nowlan during his natural life, and it is expressly provided that at the death of George Nowlan the trust shall cease and determine and the premises shall descend and go to his lawful heirs. The estate of the trustee is thus expressly limited to the life of George Nowlan.
In the case of Harvey v. Ballard, supra, the will, after providing for the division of the testator’s property into five equal shares, directed that one-half of each share should be set apart and conveyed to a trustee, to be held for the use and benefit of each child of the testator during his or her life and then to descend to his or her heirs. It was held that the trustee took an estate in each share for the life of the child who was the beneficiary, and that at the death of each beneficiary the title would pass without any conveyance, by virtue of the will, to the heirs of such beneficiary. The duties of the trustee ended at the death of the beneficiary. He was given no power and charged with no duty to do anything afterward, and there was no provision for a conveyance to the heirs. The rule in Shelley’s case, therefore, was not applied.
The will here is substantially the same in this respect as that in the case of Harvey v. Ballard, except for the power of sale given to the trustee, in his discretion, with the consent of George Nowlan. But a power of sale annexed to an estate expressly limited .to life will not enlarge the estate to a fee. (Hamlin v. United States Express Co. 107 Ill. 443.) Where an estate for life is clearly given, with power to sell the fee, and there is a limitation over, the limitation will control the operation of the power and prevent it from enlarging the estate to a fee. (Kirkpatrick v. Kirkpatrick, 197 Ill. 144.) The estate of the trustee was expressly limited to terminate upon the death of George Nowlan. The power of sale did not enlarge or add anything to this estate. If the trustee does not exercise that power during,the life of George Nowlan the real estate will pass upon the latter’s death to his heirs under, the will, without any conveyance from the trustee. The trustee has no duty to perform requiring the conveyance of the real estate. The power is one which he may exercise or not, in his discretion, and the estate will pass to the heirs of George Nowlan, if at all, by direct devise of the legal. title without regard to the trust.
In our judgment the decree of the circuit court should be affirmed.