[Mullany v. Mullany.]

and profits during the life of the wife, but there being no further exclusion expressed in the settlement, the court can have no authority to restrain him from the enjoyment of his general right as tenant by the curtesy in the equitable inheritance of the wife."

These latter remarks apply with equal force to the case before the court, for the words used in the settlement in the one case, are the same as those used in the will in the other.

I find the same doctrine sanctioned by the authority of Mr. Clancy, in his treatise on the rights of women. In page 282, he says, "that if an estate of freehold be limited to trustees for the sole and separate use of a married woman and her heirs, although such a limitation would entitle her to the rents and profits during the marriage, and would enable her to dispose of them as she thought fit, yet she could not, without the concurrence of her husband, dispose of the reversion, nor could she bar him of his tenancy by the curtesy, if the estate were of inheritance."

This same subject has recently passed under the scrutinizing eye of our late chancellor Williamson, in the case of Gibbons v. Trumbull; and if, in that case, I could find any thing conflicting with the views I have taken of this, I should have paused before adopting those views; but I am sustained by that case, as far as it is applicable to this.

When treating of the right of Mr. Trumbull as tenant by the curtesy, he remarks, "that at law, to entitle the husband to be tenant by the curtesy, marriage, seizin of the wife, issue, and death of the wife, are necessary requisites; and the construction of trusts being the same in equity as that of legal estates in courts of law, therefore, to entitle the husband to be tenant by the curtesy of a trust estate, there must be the same requisites." And he decides against the claim of the husband expressly upon the ground of want of seizin.

From a review of all the cases, I conclude that a court of equity is as much bound by positive rules and general maxims concerning property, as a court of law.

That in giving construction to a devise, the intention of the testator shall be regarded, unless it be contrary to the rules of law,

[Mullany v. Mullany.]

in which case it should be considered void, as well in a court of equity as of law.

That in cases of trusts executed, or immediate devises, where the trusts are directly and wholly declared by the testator to attach on the lands immediately under the will itself, the construction of the courts of law and equity should be the same.

But in cases of executory or imperfect trusts, which are only directory, or prescribe the intended limitations of some future conveyance, courts of equity in striving to ascertain the intention of testators, have not adhered so strictly to the rules of construction adopted by the courts of law, but have directed those conveyances to be made in such manner as to carry out the intention of the testators, as ascertained from an examination of the whole will.

And that a man cannot by will create such an estate, as by the rules of the common law he could not, in his life time, create by deed.

And I adopt these conclusions, not only because they appear to me to be fairly drawn from the cases, but because they are in conformity with the dictates of my own judgment.

And as Mrs. Mullany was seized of an estate of inheritance in the premises in dispute during the coverture, and had issue capable of inheriting, and who now claim the inheritance, I am of opinion that at her death Mr. Mullany became tenant by the curtesy of those premises, notwithstanding the words of restraint or limitation in the will, under which she derived her title.

NATHANIEL WRIGHT, Executor of BENJAMIN Wright, v. ELIJAH WRIGHT and others.

A testator by his will directed that when his youngest child attained the age of twenty-one years, all his real estate should be sold or divided, whichever a majority of his children then living should think best, and invested his executors, and the survivor of them, with full power and authority to sell either at public or private sale, as to them might seem most advantageous,

[Ex'r of Wright v. Wright.]

all his real estate, in case it should be determined by the election of his children, as aforesaid, to make sale.

Held, that the devisees, before electing whether to sell or divide the land,

had a right to call upon the executor to decide, whether in case of a sale he would sell at public or private sale; and if the executor did determine in what manner he would sell, and the devisees were influenced by that determination in making their election to have the property sold, the executor could not alter his determination without giving the heirs an opportunity of altering their decision upon the question of sale or division.

A. Miller, for complainant.

Wurts, for defendants.

THE CHANCELLOR. In this case, the material facts charged in the bill are, that Benjamin Wright, late of Hunterdon county, died on or about February ninth, eighteen hundred and twentysix, leaving fourteen children, to wit, Mary wife of James Cooley, Sarah, Margaret, Benjamin, Nathaniel, Hannah wife of John Mettler, Ann wife of Nathan Dawes, David, Francis Q., Elijah, Rachel wife of William R. Seigle, Catharine wife of David Conover, John A. and Reuben, and also leaving a widow; that said Benjamin Wright had considerable real and personal estate, and by his last will and testament, among other things, he did devise as follows: "It is my will that when my youngest child living is twenty-one years of age, all of my real estate shall either be sold or divided, whichsoever a majority of my children then living shall think best, and with regard to the distribution in either case, my sons shall take two shares and my daughters one share." "Sixth and lastly, I constitute and ap point my sons Nathaniel and David Wright, executors of this my last will and testament, hereby investing them, or the survivor of them, or such one of them as may take upon himself the burthen of the execution of this my last will and testament, in case of the refusal of the other, with full power and authority to sell, either at public or private sale, as to them may seem most advantageous, all my real estate, in case it should be so determined by the election of my children, as aforesaid; to make deeds,

[Ex'r of Wright v. Wright.]

&c. That the will was proved by complainant, on the twentythird of February, eighteen hundred and twenty-six, and that David Wright, the other executor named, at that time refused to act or prove the will. That complainant acted as sole executor, letting out the property, &c., until February, eighteen hundred and thirty-three, when Reuben, the youngest child, came of age; when he called a meeting of the children to ascertain their wishes as to the disposition of the real estate, which consisted of a farm of about two hundred and fifty-six acres.

All the children attended except Margaret, who authorized James Cooley to appear and say for her, and except Catharine and her husband, David Conover. They unanimously agreed that it was better to sell the farm.

Accordingly, in October, eighteen hundred and thirty-three, the complainant, as acting executor, advertised the farm in handbills and public paper for sale, with a memorandum at the bottom of the advertisement, in these words: "N. B. If the above property is not sold by the tenth day of December next, it will, on that day, be offered at public sale."

That these bills were put up generally, and as he believes, known to all the children who lived in the neighborhood, and he heard no objection. That James Cooley, the husband of Mary, since that time sold his right, (one twentieth,) to Elijah Wright, for three hundred dollars; and that Margaret, John Mettler husband of Hannah, and Nathan Dawes husband of Nancy, offered and were willing to sell their several shares at the same rate, which would put the farm at the value of six thousand dollars. That the widow still lives and has her dower. That a few days before the tenth of December, eighteen hundred and thirty-three, when the farm was to be sold at public sale, he entered into a written agreement to sell it to Peter Alpaugh, for seven thousand dollars, which was the best price he could get, and that Alpaugh was able to pay, &c.; and on the thirty-first of December, eighteen hundred and thirty-three, he conveyed the farm to him, and received his two equal bonds, with personal security, the one payable April first, eighteen hundred and thirty

[Ex'r of Wright v. Wright.]

four, the other, April first, eighteen hundred and thirty-five, both without interest, and agreed to put him in possession on the first of April, eighteen hundred and thirty-four. The deed was delivered and recorded. That on the seventeenth of January, eighteen hundred and thirty-four, David Wright, the other person named as executor, proved the will, but gave no notice of his intention, or that he had proved it.

That Elijah and complainant are in possession of the farm, and notwithstanding the sale, the other children, since Reuben came of age, claim the right to the farm, &c., and refuse to permit the sale to go into effect, and keep Alpaugh out of possession, and refuse to confirm the sale, and deny the right of complainant to make the sale.

That the children, or some of them, in May, eighteen hundred and thirty-four, applied for commissioners to divide the farm, and the court appointed them, and they were proceeding to divide, &c., notwithstanding noticed by the complainant of the sale, &c. By these means the complainant is hindered in executing his duty as executor, in perfecting sale to Alpaugh, &c., who is ready to pay the seven thousand dollars, according to agreement. That the sum of seven thousand dollars is a full consideration for the farm, and that the price has depreciated since the sale.

Upon these facts the complainant prays that the sale to Alpaugh may be carried into effect, and the possession of the farm yielded up to him. That the proceedings of the children, at law, for division or re-sale, and the proceedings of the commissioners, may be restrained, &c., and for general relief.

Upon filing this bill, an injunction was issued according to its prayer.

To this bill an answer was filed by the defendants, Benjamin, David, Elijah, John A., Francis Q., John Mettler, and William R. Seigle and Rachel his wife; in which they admit that they had a meeting for the purpose of deciding upon the manner of disposing of the farm, as set forth by the complainant, and that they agreed that it should be sold; but they deny that they or either of them agreed that it should be sold at private sale, and