[O'Kill et al. v. Campbell.] for life; and if that relief be denied, then for a change of trustee. Answer by the trustee, being the sole defendant, admitting the charges in the bill, and praying to be discharged from the further execution of the trust, by reason of the multiplicity of his affairs, the infirmities of age, &c. Hearing on bill and answer. Frelinghuysen, for complainants. Defendant pro se. THE CHANCELLOR. James Jay, deceased, by his last will and testament, dated in the year eighteen hundred and fifteen, devised certain real and personal property, in the county of Bergen, to his executors, in trust, for the use of his daughter, Mary O'Kill, one of the complainants, who at that time was wife to John O'Kill, the father of the other complainants. Robert Campbell, the defendant, is the only surviving executor and trustee named in the will. James Jay, the testator, died soon after making his will; and about the year eighteen hundred and twenty-two, Mary O'Kill obtained a divorce from her husband, John O'Kill. All the children of Mary O'Kill are of age, and have joined as complainants in this bill, which seeks to set aside the trust altogether, and to have the estate conveyed by the defendant to Mary O'Kill, one of the complainants; and if that relief cannot be granted, that the trustee be changed, and some other person appointed to take charge of the estate, and execute the trusts of said will. The defendant, in his answer, admits the facts charged in the bill, and expresses his desire to be discharged from the further execution of the trust, by reason of the multiplicity of his own private concerns, and other business, and the infirmities of age which generally accompany the decline of life. Upon examining the will of James Jay, deceased, it appears that he has devised the property in question to the executors in trust, that they permit his daughter, Mary O'Kill, to use and [O'Kill et al. v. Campbell.] Occupy the same, "and to take the rents, issues and profits thereof to her own use during her natural life, free from any control of her present or any future husband, and not to be any way liable for any debt or debts he now owes, or which any future husband may hereafter contract." It is true that by the divorce of Mary O'Kill, one reason for creating this trust has ceased, but another of equal validity yet remains. The testator saw fit to guard against the control or debt of any future husband of Mrs. O'Kill; and as she is now divorced from Mr. O'Kill, the very danger anticipated by the testator exists, and I do not feel authorized to alter his will in that particular. But the reasons assigned for changing the trustee appear to me sufficient. Therefore let it be referred to one of the masters of this court to nominate a trustee, in place of the present defendant. Order accordingly. The following decree was thereupon made: The chancellor, being of opinion that no sufficient ground appears to authorize the extinguishment of the said trust created by the last will and testament of James Jay, deceased, and being satisfied that the trustee who now holds the said real estate as the surviving executor and trustee of the said James Jay, deceased, should be changed, and a new trustee nominated and appointed: It is, on this nineteenth day of January, in the year of our Lord one thousand eight hundred and thirty-seven, by his excellency the chancellor, ordered, adjudged and decreed, that the said trustee who holds the said real estate for the use of the said Mary O'Kill, be changed; and that a new and other trustee be appointed to execute and fulfil the trust created and directed by the said last will and testament of James Jay, deceased: And it is further ordered and decreed, that the said new trustee be invested with all the powers and privileges, and subject to all the responsibilities and duties of such trustee of the said James Jay, deceased, for the use of the said Mary O'Kill; [Mullany v. Mullany.] and that he execute and give good and sufficient security for the performance of such trust. It is further ordered, that it be referred to one of the masters of this court to nominate and appoint such new trustee, and receive security for the faithful performance of such trust, and that he make report thereof to this court with all convenient speed. MARY B. MULLANY et al. v. JAMES R. MULLANY et al. A testator devised as follows:-"I do give, devise and bequeath unto my daughter Maria, the wife of J. R. M., all that farm, &c. now in the occupa. tion and possession of the said J. R. M. To have and to hold the farm unto my said daughter M., her heirs and assigns for ever; not in any manner subject to the sale or disposal of her said husband, in any way, manner or form whatever." Held, that it was not the intention of the testator to ex. clude the husband of the devisee from his estate by curtesy in the land devised. If a testator devise to a feme covert an estate of inheritance in fee simple, he cannot by any restriction or provision in the will deprive the husband of the devisec of his estate by the curtesy in the land devised. Those incidents which by law are inseparably annexed to an estate, cannot be prohibited by any condition or limitation expressed in the deed or will. A court of equity is as much bound by positive rules and general maxims concerning property as a court of law. In giving construction to a devise, the intention of the testator should be regarded unless it be contrary to the rules of law, in which case it should be considered void as well in a court of equity as of law. 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 by courts of law and of 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 strictly to the rules of construction adopted by courts of law, but have directed those conveyances to be made in such manner as to carry out the intention of the testator, as ascertained from an examination of the whole will. [Mullany v. Mullany.] 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. Frelinghuysen, for complainants. J. D. Miller, for defendants. THE CHANCELLOR. In this case, the bill charges, that the complainants are the children of James R. Mullany, one of the defendants, by his late wife, Maria Mullany, deceased, who was the daughter of Elias Berger, late of the county of Bergen, deceased. That on the first of March, eighteen hundred and sixteen, the said Elias Berger made his last will and testament, and among other matters, devised as follows:-"I give and bequeath unto my daughter Maria, the wife of James R. Mullany, one other equal third part of the whole of the income arising from my estate, real and personal, to be paid to her, and to no one else, punctually, yearly and every year during the term of her natural life; which annual allowance is intended for her use, maintenance and support, and for no other purpose whatever, and is, consequently, not to be subject to the control or disposal of her husband in any respect. Then, immediately after the decease of my wife Mary, they, my aforesaid daughters Jane and Maria, shall be entitled to an equal participation of that equal third part of the income arising from my estate, real and personal, which is herein before set apart for the maintenance and support of my said wife Mary; which my executors are hereby directed to pay unto them respectively, and to no other person or persons whomsoever, yearly and every year, during the term of their natural lives, respectively, for their own use, maintenance and support, and for no other purpose whatever." On the sixth of August, eighteen hundred and twenty-three, Elias Berger made a codicil to his will, in the following words: "I do give, devise and bequeath unto my daughter Maria, the wife of James R. Mullany, as an equivalent, or to make her equal with her sister Jane, all that certain farm, with the buildings thereon, situate at Bergen Point, in the county of Bergen, [Mullany v. Mullany.] and state of New-Jersey, now in the occupation and possession of the said James R. Mullany, which lies, &c. (describing it.) To have and to hold the same unto my said daughter Maria, her heirs and assigns, for ever; not in any manner subject to the sale or disposal of her said husband, in any way, manner or form whatever."~ Elias Berger, the testator, died in October, eighteen hundred and twenty-six, leaving his said will and codicil in force; and Maria Mullany, his daughter, died in October, eighteen hundred and thirty, leaving her husband, James R. Mullany, one of the defendants, and the complainants, her heirs at law, surviving her. There are other charges in the bill, of which it is not necessary now to take notice, as I understand that upon the demurrer filed, the only question submitted is, whether the defendant, James R. Mullany, is tenant by the curtesy of the premises described in the codicil. The first question which presents itself, refers to the intention of the testator; whether he intended by this will to exclude the husband from the curtesy. And in order to arrive at that intention, it is proper to consider the situation of the parties at the time of making the will, and to compare expressions used in the codicil, with expressions upon similar subjects in other parts of the will. The rule of construction upon this subject is, that as it is against common right, "the instrument under which it is made must clearly speak the devisor's intention to bar the husband, else it cannot be allowed:" Clancy, 262. As to the situation of the parties, it appears by the codicil itself that the defendant, Mullany, was in the occupation and possession of the premises at the time of making the codicil; and as it appears by the bill that he was in possession after the death of his wife, I take it for granted that his possession was uninterrupted from the time of making the codicil until after the death of his wife, and that she lived with him. Under these circumstances, it cannot be presumed, unless most clearly ex |