The opinion of the court was delivered by
McIver, A. J.On December 22d, 1866, W. T. Gilmore and wife, M. E. Gilmore, with the defendant, B. H. Massey, executed a deed of indenture in substance and to the effect following : After reciting that some unhappy differences had arisen between the husband and wife which had induced them to agree “ to live separate and apart from each other, and, previous to such separation he, the said W. Taylor Gilmore, has consented thereto, and has agreed to transfer, release, convey, surrender and deliver certain real and personal property, hereinafter mentioned, for the ^support and maintenance of said M. E. Gilmore, to be held and managed by the said Benjamin H. Massey as trustee, in trust from henceforth to the sole and separate use of said M. E. Gilmore, and to be at all times as fully and absolutely at her disposal, under directions to her said trustee in her lifetime, or by will at her death, as if she were sole and unmarried,” the deed proceeds as follows: “ Now this indenture witnesseth that the said W. Taylor Gilmore, in pursuance of said proposal, promises and agrees with the party of the second part that the said M. E. Gilmore shall and may live separate and apart from him and reside in places and families of relations or friends or other persons, and follow such business and pursuits as she, at her will and pleasure, may think fit and desirable; and further, that, as well for the consideration aforesaid as for and in consideration of the sum of $1 to the said W. Taylor Gilmore by the said Benjamin H. Massey paid, the said W. Taylor Gilmore has granted, bargained, sold, &c., * * * all that lot of land, &c. * * * To have and to hold all and singular the *282premises * * * unto the said Benjamin H. Massey, his heirs and assigns forever, in trust, however, and upon the confidence that he, the said Benjamin H. Massey, shall allow, the said M. E. Gilmore to occupy, use and enjoy all of said property and estate, or that he shall collect and receive the rents, issues and profits thereof and apply the same to the support and maintenance of said M. E. Gilmore in same manner as if she were sole and unmarried. And, further, the said W. Taylor Gilmore covenants and agrees that it shall and may be lawful for the said Benjamin H. Massey, by deed or other sufficient writing, by and with- the written directions and approva lof said M. E. Gilmore, to sell, transfer, deliver and convey the whole or any part of the property and estate herein and hereby conveyed and released, to such person or persons, and for such sum or sums of money or other valuable consideration as to him shall seem wise and prudent, and to sign and deliver good and sufficient title therefor to the purchaser, and by and with the written direction and approval of the said M. E. Gilmore, to re-invest the proceeds of said sale in other property better adapted to the wants, conveniences or wishes of said M. E. Gilmore, but subject to the same trust as the property so sold and delivered or otherwise disposed of as will best contribute to the decent and comfortable support and . maintenance of said M. E. Gilmore. And the said W. Taylor Gilmore further covenants and agrees that it shall and may be lawful for the said M. E. Gilmore, by her last will and testament, to give, devise and bequeath the whole or any portion of the estate and property hereby conveyed and transferred, or other estate and property substituted in its place as hereinbefore authorized, that may remain unexpended at her death, to such person or persons, and in such proportions as she may direct and appoint; and said will, so executed, shall be as good and available at law, notwithstanding her coverture, as if she were sole and unmarried. In consideration of the estate and property herein and hereby conveyed, released, assigned and delivered' by the said W. Taylor Gilmore in trust for said M. E. Gilmore, in manner as aforesaid, the said M. E. Gilmore, in the presence of and by and with the advice and consent of her friend, kinsman and trustee, said Benjamin H. Massey, does *283hereby agree to accept and take the same in full satisfaction for her support and maintenance, and all alimony whatever during her coverture.” The deed also contains a covenant on the part of Massey that he will accept the trusts conferred and carry out the same, but it contains no covenant that Massey will save W. T. Gilmore harmless against the debts of his wife.
W. T. Gilmore died intestate, in 1867, and his estate has-proved to be insolvent. Mrs. Gilmore died in 1878 without having executed the powers conferred by the deed, -and thereupon this action was commenced by the plaintiff, who had established a claim against the estate of W. T. Gilmore, under proceedings to marshal the assets of his estate, for the purpose of subjecting the real estate conveyed to Massey as trustee, by the above-mentioned deed, to the payment of the debts of W. T. Gilmore, upon the ground that the property conveyed by that deed was to be held by the trustee only for the life of Mrs. Gilmore, and that upon her death, without having disposed of the same by will, it reverted to the estate of W. T. Gilmore, and became liable for his debts.
The appellant, B. H. Massey, contends that, under a proper construction of the terms of this deed, Mrs. Gilmore took an absolute estate, which, at her death, descended to him as her sole heir-at-law, while the respondent contends that the estate was conveyed to the trustee for the sole purpose of securing to Mrs. Gilmore a support and maintenance during her life, with power in her to dispose of the same by will, and that she having died without executing the power, the whole of the trusts created by the deed were exhausted, and the estate reverted to the heirs of the grantor, and became liable for his debts. The Circuit judge sustained the view insisted upon by the respondent, and the real question raised by this appeal is whether, under a proper construction of the terms of the deed, the estate reverted to the heirs of the grantor or descended to the heir of Mrs. Gilmore.
If there was any trust resulting to the grantor or his heirs-under the terms of this deed, it must be by implication, as it is not, and cannot be pretended that there is any express provision to that effect in the deed. It is contended, however, that inasmuch as the trusts declared by the deed do not exhaust the *284whole estate, what remains after satisfying those trusts must necessarily revert to the grantor. This, of course, rests upon the theory that the whole estate was not exhausted by the trusts declared, and to this theory we are unable to assent, for we think that, by a proper construction of the deed, the whole estate was intended to be, and was, in fact, conveyed, and there was nothing left to revert to the grantor.
It is quite true that the estate is not conveyed in trust for Mrs. Gilmore and her heirs, and it is equally true that in a conveyance of the legal estate the word “ heirs ” is necessary to create a fee simple. It is likewise true, as a general proposition, as is said by Washburne in his work on Real Property, Book 2, ch. III., § 2, ¶ 28, that “ in construing limitations of trusts courts of equity adopt the rules of law applicable to the legal estate,” or that “ declarations of trust are construed in the same manner as common law conveyances, where the estate is finally limited by deed,” yet as the same writer says, in ¶ 40 of the same section, there are some exceptions to this rule, one of which he states, in ¶ 43, in the following language: “ Another exception is that the word e heirs ’ is not always necessary in order to give an equitable estate the character of inheritability, if it requires that such an effect should be given in order to carry out the clear intention of the party creating it. Thus it is said, if land be given to a man without the word ‘ heirs ’ and a trust be declared of that estate, and it can be satisfied in no other way but by the eestui que trust taking an inheritance, it has been construed that a fee passes to him even without the word ‘ heirs.’ ” Among the cases cited to sustain this doctrine are Villiers v. Villiers, 2 Atk. 71, and Fisher v. Fields, 10 Johns. 505, in both of which the question arose upon the construction of deeds, not wills, and the last sentence just quoted from Washburne is a quotation from the opinion of Lord Hardwicke in Villiers v. Villiers. In Fisher v. Fields, one B. Griffin, a discharged soldier in the Revolutionary war, having received his discharge entitling him to bounty land, sold his right to one Birch and delivered to him his discharge, upon which was the following certificate under his hand and seal: “ This is to certify that the bearer hereof, J. B., is entitled to all the land that I (B. G.) am entitled to, either *285from the state or continent, for my services as a soldier, certified in my discharge.” The assignees of Birch sued out a patent for the land to which Griffin was entitled, which, under the statute, was issued in the name of Griffin. Subsequently Fields, with notice of this transfer to Birch, bought the land from Griffin and took a regular conveyance from him. In a contest for the land between the assignees of Birch and Fields, it was contended by the latter that the endorsement on the discharge not containing the. word “ heirs ” could not operate as a transfer of anything more than the life estate. But the court held otherwise, and that although the patent was made out in the name of Griffin, he must, in equity, be regarded as a trustee for Birch and his assignees, and although the transfer contained no words of inheritance, yet, as the intention was manifest to sell the whole interest, the court would so construe it. Kent, C. J., in delivering the opinion of the court, used these words: “There never was a greater mistake, as I apprehend, than the supposition that this-transfer of the soldier’s right to Birch is to be tested by the strict technical rules of a conveyance of land at common law, and that Birch did not take the whole interest of the soldier, because the word ‘heirs’ was not inserted in the assignment.” Again, he says: “ A trustee or cestui que trust will take a fee without the word ‘heirs’ where*a less estate will not be sufficient to satisfy the purposes of the trust.” And again: “ But what puts this point beyond all doubt, is the doctrine of the common law on the subject of uses and trusts. Before the statute of uses, if a man bargained and sold his land for a valuable consideration, without inserting the word ‘ heirs,’ the Court of Chancery would have decreed an execution of the use in fee, because the use was merely in trust and confidence, and because this was according to the conscience and intent of the parties. But after the statute of 27 Henry VIII., as the uses were transferred and made the legal estate, a different rule took place. A trust is merely what a use was before the statute of uses, and the same rules apply to trusts in chancery now which were formerly applied to uses. And in exercising its jurisdiction over executory trusts the Court of Chancery is not bound by the technical rules of law, but takes a wider range in favor of the intent of the party.”
*286It seems to us, therefore, that in seeking to ascertain the nature and extent of the trust estate of Mrs. Gilmore, as created by this ■deed, we are not bound by the strict technical rules which would govern in the construction of a conveyance creating a legal estate, but that we must look to the intent of the parties, as evinced by the terms of the deed. Looking at this deed in this light, it is clear that the grantor intended to create in his wife an absolute estate in fee simple. It is very certain that he does not, in terms, limit the duration of the estate to the life of his wife, but, on the contrary, he invests her with powers which pre-suppose a larger estate than a simple life estate. The rights and powers given to her by this deed are precisely those of an absolute owner, and it is difficult to conceive how he could have conferred such absolute rights and powers, in the broad terms which he has used, without the intention of conferring upon her the absolute dominion over the estate, as far as it was practicable, under the law, as it then stood, for a married woman to hold and enjoy such an estate. For, as the law then stood, it was necessary for her protection that she, being a married woman, should have a trustee, but otherwise the deed gives her every right and every power which an absolute owner could have. She had the sole and exclusive right to the use, occupation and enjoyment of the land, and the rents, issues and profits were at her absolute disposal. She had the right to sell or dispose of, or what amounted to the same thing, require her trustee to sell or dispose of the whole or any part of the property, and either expend the proceeds for her own use, or re-invest the same in other property for her sole and exclusive benefit. And, finally, she had the right to dispose by will of any of the property which she had not consumed during her lifetime. ' What greater rights could the owner of the fee have ? It is an entire mistake to suppose that the powers conferred upon Mrs. Gilmore were- limited as to the manner of exercise — by will — and as to the subject upon which such power could be exercised — such portion of the estate as may remain unexpended at her death — for the deed gives her unlimited power of disposition during her life, and, in addition thereto, gives her the right to dispose, by will, of whatever remained *287undisposed of during ber lifetime, and this is all the power of disposition which the absolute owner of property has.
It is conceded that the deed conveys an estate in fee simple to the trustee, and one of the trusts is declared in the following words: “In trust, however, and upon the confidence that he, the said Benjamin H. Massey, shall allow the said M. E. Gilmore to occupy, use and enjoy all of said property and estate * * * in same manner as if she were sole and unmarried/’ Now, what estate is she thus to occupy, use and enjoy? The terms of the deed answer, “ all of said * * * estate,” that is, all of the estate conveyed to the trustee, which is admitted to be the fee. It seems to us, therefore, that it is a mistake to say, as has been said, that no estate is conveyed to the sole and separate use of Mrs. Gilmore, and that the property is conveyed to the trustee only for the purpose of securing to her a maintenance and support during her life, for the deed, in express terms, conveys the fee simple to the trustee in trust that he shall allow Mrs. Gilmore to occupy, use and enjoy not only the property conveyed, but also the estate, which was, undoubtedly, a fee simple.
We think, also, that there was a valuable consideration for this deed proceeding from Mrs. Gilmore in the release by her of all claim against her husband for alimony. The deed declares that “in consideration of the estate and property herein and hereby conveyed * * * the said M. E. Gilmore * * * does hereby agree to accept and take the same in full satisfaction for her support and maintenance and all alimony whatever during her coverture.” This amounted to a release of any claim she might otherwise have upon her husband for alimony, and such release was certainly a valuable consideration proceeding from her, and she may be regarded as in fact a purchaser of the estate conveyed to her trustee to be held by him' for her sole and exclusive benefit, with the same powers of disposition as would belong to the owner of the fee.
We are therefore unable to perceive any ground upon which a resulting trust can be implied in the grantor, and, on the contrary, are of opinion that the terms used manifest an intent to create an absolute estate in fee simple in Mrs. Gilmore, which, *288upon ber death, descended to the appellant as her heir-at-law, and that a Court of Equity is bound to carry into effect such intent.
The judgment of this court is that the judgment of the Circuit Court be reversed and that the complaint be dismissed.
McGowaN, A. J., concurred.