*360Upon rehearing,
George ANDRews, Sp. J.,delivered the following opinion:
We are satisfied that the disposition heretofore made of this case is correct.
The trust expressed in the codicil of the will of Robert Massengill in favor of his son, was not a special or active trust. The person named as trustee had no duties to perform under it, and there was no necessity that any estate should remain in him. And as long as no dirty or function was imposed on him requiring any physical or mental operation, we do not consider him as assigned by law to occupy a passively obstructive position merely to protect the estate against creditors. The effect of the will and codicil was, therefore, to vest the legal title to the property devised in S. S. Massengill.
This legal title was an estate in fee simple. By the terms of the will and codicil, it is evident that an estate in fee passed, and was intended to pass. There is no indication of any contrary intention: ' Code, sec. 20U6. There is no devise over, and no mention of a life estate or remainder, or of a reversion in the heirs of the testator. In the body of the will, the testator gave to his son an absolute and unqualified estate in fee in the land. In the codicil he devises to the trustee . “ all the property of every kind bequeathed to my son.” In other words, the testator devises to the trustee the same estate in nature and extent which he had previously devised to his son; and that was an estate in fee simple. This result is *361sufficiently attained without reference to the recognized rule that a devise of the rents and profits is in legal effect a devise of the land. S. S. Massengill, there-, fore, took the legal estate in fee in the land devised.
This being so, the provision in the codicil that the property was not to be sold or be subject te execution, was repugnant to the estate devised and was void, and the property may be subjected to the claims of the creditors of S. S. Massengill.
If this conclusion be correct, it might be unnecessary to consider the construction to be placed upon the exception in sec. 4283 of the Code, since that exception relates only to property “held in trust for” the defendant. Land in which the defendant owns the entire legal estate in fee is not “held in trust for him,” though the origin of his^ estate may have been a devise or conveyance to 6ne designated as a trustee.
But inasmuch as an able’ aiurl earnest argument, and the principal argument for defendant in this" case, has been made upon the construction to be given to the section of the Code just mentioned, and our decision of the case is based1 as unhesitatingly upon this point as upon the other, we proceed to dispose of this question.
Section 4283 of the Code is as follows: “ The creditor, whose execution has been returned unsatisfied in whole or in part, may file a bill in chancery against the defendant in the execution, and any other person or corporation, to compel the discovery of any property, including stocks, choses in action, or money due to such defendant, or held in trust for him, except *362when the trust has been created by, or the property so held has proceeded from some person other than the defendant himself, and the trust is declared by will duly recorded, or deed duly registered.”
It is insisted on behalf of the defendant that the effect of the exception in the section above quoted, is to deprive the chancery courts of this State of all power to decree satisfaction of the indebtedness of a cestui que trust out of property held 'in trust for him, in all cases in which the trust has been created by some person other than the debtor himself. We do not thus understand this statute.
This section is brought into the Code from the original act of 1832, ch. 11, sec. 1 (Caruthers & Nicholson, 222), and was adopted by our Legislature, with some modifications, from a statute of the State of New York, passed in 1828. It is well known (hat the act of 1832 was passed by our Legislature in consequence of the decision in the chancery court of the case of Erwin v. Oldham, 6 Yer., 185. In that case it was decided that a court of chancery had no power to subject corporate stock standing in the name of the debtor, to the payment of his debts, for the reason that there was no law permitting an execution to be levied on such stocks, and that the jurisdiction of equity was ancillary to that at law, to remove impediments to the operation of the execution.
Courts of equity in this State do not derive their power to subject equitable estates to the payment of debis, from this statute. This jurisdiction existed independently of statute, and the general drctrine that *363a court of equity has jurisdiction to subject equitable estates to the payment of debts, in cases where the legal estate would be subject to execution, has not been disputed in the case of Erwin v. Oldham, or in other decisions of this court: McNairy v. Eastland, 10 Yer., 316; Stark v. Cheatham, 2 Tenn. Ch. R., 300; Story Eq. Jur., sec. 1216b.
This statute came under discussion in 1836, soon after its enactment, in the case of Garget v. Scott, decided by Judge Turley, who explains its object thus: “As we have seen, the intention of the Legislature was (inasmuch as they had freed the body of the debtor from execution) to make all of his property, of every kind and description, liable for his debts; and that in order to do so, they vested the courts of chancery with an extent of jurisdiction never before exercised by them, by which stocks and debts were put upon the same footing with equitable estates, and made liable by decree to execution.”
The object of the statute was to enable courts of chancery to reach, not equitable estates generally, but to subject such stocks and dioses in action as could not, when held by the debtor himself, be reached by execution, and it was an enabling statute and not a restrictive one.
And as the tendency of our legislation has been to enlarge the jurisdiction of courts of equity, we find that when the act of 1832 came to be incorporated in the Code, a provision, said to be derived from this statute, was enacted as sec. 4282, declaring that courts of chancery “have exclusive jurisdiction to aid a cred*364itor by judgment or decree to subject the property of the defendant which cannot be reached by execution, to the satisfaction of the judgment or decree, under provisions of this Code.”
As originally enacted, the second section of the act of 1832, now sec. 4284 of the Code, provided that the court should have power to decree satisfaction “out of any property, stock, money, or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery.”
This clause, copied from the New York statute, is relied upon in the case of Campbell v. Foster, 35 N. Y., 366, as showing that the power to decree satisfaction was purposely made commensurate with the power to compel discovery.
But when these two sections of the act of 1832 were brought into the Code, the Legislature, while retaining in substance the whole of sec. 1, as Code, sec. 4283, and enacting sec. 4282 as a wider declaration of the jurisdiction of the court, significantly struck out the second section of the act in re enacting it as sec. 4284, the words above quoted in italics, thus evincing an intention that the exception in sec. 4283 should not operate as a limitation on the power of the court to ■ decree satisfaction out of any legal or equitable estate of the defendant that the court might find within its reach.
This exception in sec. 4283 appears to relate to the right to compel a discovery, and not to the relief that a court of equity shall be competent to give, inde*365pendently of the discovery; and has no reference to a case in which discovery is not essential to the relief sought. The last clause in the exception, requiring the declaration of trust to be of record, was added by our Legislature as a limitation upon the exception, when the statute was first enacted, it not being a part of the New York statute, apparently for the reason that a bill of discovery would be unnecessary when the declaration of trust was of 'record, but might be necessary when it was not.
It will be borne in mind also, that real estate held by one person in trust for another has, in this State, always been subject to execution, and the aid of a court of equity was not necessary to enable the creditor to reach such interests, unless to obtain discovery, clear the title, or remove some obstacle in the way of the execution: 1 Yer., 9; 1 Hum., 496; 6 Hum., 95; 2 Cold., 12.
The complainant, by his bill in this case, is not proceeding under the new jurisdiction conferred by sec. 4283 of the Code, but is merely doing what he had the right to do independently of that section, seeking the aid of a court of equity to enforce his legal right.
The same exception in the New York statute has given rise to much discussion and to great difference of opinion in the courts of that State. See Campbell v. Foster, 35 N. Y., 367, where the construction is given to that statute which the defendant in this case claims ‘ should be given to our own. The fact that that case, which was decided in 1866, nearly forty *366years after the statute was passed by the Legislature of New York, appears to be the first case in which the construction of their statute was authoritatively settled, would seem to indicate that the question must have been a doubtful one in that State.
But whatever may be the true construction of the statute of New York, we are satisfied that our Legislature did not intend, in the enactment of the statute now in question, to -limit the power of courts of chancery to decree satisfaction out of the debtor’s equitable estate in cases where that jurisdiction already existed.
In short, the intention of the Legislature in the enactment of the statute of 1832 and its re-enactment in the Code, evidently was to enlarge, and not to restrict the jurisdiction of equity in this class of cases. The history of the original enactment, and the fact that the changes. made in the form and phraseology of the statute in its transfer from the statute of New York, and in its re-enac'tment in the Code, were all in the same direction, show this; and this is in accord with the whole tendency of our legislation from that time to the present.
We are satisfied that the exception contained in sec. 4283 must be construed as a limitation upon the new jurisdiction granted by that statute, and not upon the jurisdiction which courts of chancery in this State have from the first possessed and exercised.
It follows, that the property devised for the use and benefit of S. S. Massengill is liable for his debts, and that the demurrer to complainant’s bill was properly overruled.