On petition for a rehearing.
Perkins, J.An elaborate petition for a rehearing has been filed. We have carefully considered it.
The case is this :
Richard .F. Lytle, Sr., devised certain lands to Nathan L. Lytle and Richard F. Lytle, Jr., “ to have and to hold the same for the sole use, behoof and benefit of my daughter, Sarah Elizabeth Potter, and to her heirs begotten of her body; and I further direct that the said trustees do pay over to the said Sarah, orto her heirs begotten as aforesaid, the full rents and profits thereof, annually, for her or their exclusive support and maintenance, and to be receipted for by the said Sarah, if living.”
She still lives. Said Sarah sold the land, making a deed in fee-simple.
*586Section 13 of the act of this State concerning trusts and powers enacts, 1 R. S. 1876, p. 916, that “A conveyance or devise of lands to a trustee whose title is nominal! only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall be deemed a direct conveyance or devise to the beneficiary.”
In this case, the trustees had the power of management of the estate, and hence the devise was not direct to the beneficiary. Ah active trust was vested, to be administered! by the trustees. They necessarily took the legal title.
It is claimed that the devise was void as against the law of perpetuities. If this is so (which we do not decide) as to the limitations over, it was valid as to the life-estate of the first beneficiary, who is still in life.
In Proprietors, etc., v. Grant, 3 Gray, 142, it is said :
“ The remaining inquiry is as to the effect of the invalidity of the devise over, on account of its remoteness, upon the preceding gift in fee to the deacons and their successors forever. Upon this point we understand the rule to be, that if a limitation over is void by reason of its remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted. Therefore,, a gift of the fee or the entire interest, subject to an executory limitation which is too remote, takes effect as if it had been originally limited free from any devesting gift. The general principle applicable to such cases is, that when a subsequent condition or limitation is void, by reason of its being impossible, repugnant or contrary to law, the estate becomes vested in the first taker, discharged of the condition or limitation over, according to the terms in which it' was granted or devised; if for life, then it takes effect as a life-estate ; if in fee, then as afee-simple absolute. 1 Jarman on Wills, 200, 783; Lewis on Perp. 657; 2 Bl. Com. 156; 4 Kent Com. 130; Co. Lit. 206 a, 206 b, 223 a.”
And where the devise is of an equitable, a trust, estate,, *587the same rule applies. Whether the limitations over in this ease are void or valid, whatever estate vests in-Mrs. Potter during her life is simply a right to receive the rents, and profits, and hence falls within the following, being the-4th section of the act concerning trusts and powers, 1. R. S. 1876, p.915 :
Original opinion filed at May term, 1878. Opinion on petition for a rehearing filed at November term, 1878.“No person beneficially interested iu a trust for the receipt of the rents and profits of land, can dispose of such, interest, unless the right to make disposition thereof is-conferred by the instrument creating such trust; but the-interest of every person for whose benefit a trust for the-payment of a sum in gross is created, is assignable.”
This disabled Sarah Elizabeth Potter, the first beneficiary v to sell even her interest in the rents, etc., to be paid to her from time to time for her support.
The petition for a rehearing is overruled.