Nor can the fact that trustees are interposed affect the question. For, even if the deed should be regarded as a conveyance to the trustees for the use of Mary and the lawful heirs of her body, about which there might be a serious question, it would not take the case out of the operation of the rule in Shelley's Case. It is true that the case of Austin v. Payne, 8 Rich. Eq. 9, does hold that where the estate of the ancestor and that limited to the heirs are not of the same quality, that is, where one is equitable and the other legal, the rule in that celebrated ease will not apply. But that case recognizes the doctrine that where both estates are equitable it will apply. If, therefore, the deed should be regarded as creating an equitable estate, originally, in Mary, it created the same kind of an estate in the heirs of her body, and both estates lost that character when there was nothing for the trustees to do, as the statute would then execute the uses. Bouknight v. Epting, 11 S. C. 71, and the cases there cited. The only duty imposed upon the trustees was an exercise of their discretion as to what property the wife of the grantor should be allowed the use of, in the event she survived him; but as she died before the grantor, there was absolutely nothing for the trustees to do, and hence, even if it should be regarded that the deed conveyed the estate to the trustees, the statute would execute the uses, and the estates would become legal both in Mary and the heirs of her body.
Regarding, then, the estate as a fee-conditional, our next inquiry is, whether it was liable for the debts of Mary Hammett, the first taker, in the hands of her heirs. In the case of Izard v. Middleton, Bail. Eq. 228, cited with approval in Pearse v. Killian, McM. Eq. 231, it was held that lands held in fee-conditional are bound, after the birth of issue, by the lien of a judgment or decree, against the tenant in fee, in bar of the right of the issue to take per formam doni. It seems to me that the same reasoning which led to this conclusion would necessarily lead to the conclusion that land so held would be assets for the payment of debts even though not reduced to judgment; and such was the opinion of the distinguished Chancellor Harper, who delivered the opinion of the court in Izard v. Middleton. At page 235 he says: " But if there had been no decree against Mr. Izard in his lifetime, yet if the heir takes only by succession from the ancestor, and in his right, it would seem to follow that whatever would be liable to debts in his hands must be assets in the hands of the heir; and such is the purport of the Statute 5 Geo. 2, chap. 7." It is true that this was only a dictum, inasmuch as in that case the debt had been reduced to judgment and had become a lien on the land during the lifetime of the first taker, yet it is a dictum supported not only by the great name of that eminent jurist, but by the unanswerable reasoning employed by him in that case.
The fundamental difference between an estate in fee-conditional, after the condition has been performed, and an estate in fee simple is, 1st, that in the former the course of descent is confined to a particular class of heirs, and upon failure of such heirs the estate reverts to the donor; 2d, that the holder of such an estate can only dispose of it by some act which takes effect during his life. In all other respects their qualities and incidents are the same. In a grant of an estate in fee-conditional, heirs of the body are not named on account of any benefit intended for them, or for the purpose of controlling or limiting the ancestor's power of disposition during his life, but simply for the purpose of prescribing the course of descent, in case no such disposition is made. In the case of a fee simple estate the law prescribes that the estate shall descend to the heirs generally, in case the ancestor makes no disposition of the estate, while in the case of an estate in fee-conditional the instrument creating the estate confines the descent to a particular class of heirs. Both classes of heirs take by succession from the ancestor, and as in fee simple estates the heirs generally take the estate subject to a liability for the debts of the ancestor, we see no reason why, in estates in fee-conditional, the heirs of the body to whom the descent is confined should not take the estate in the same way.
Our next inquiry is as to the effect of the disposition made by Mary Hammett, by will, for the sale of the lands held by her in fee conditional. In this State it has been settled that an estate in fee conditional is not the subject of devise. Jones ads. Postell, Harp. 92. To allow such a power to a tenant in fee conditional would be to give him the power to disturb the course of descent fixed by the instrument creating the estate, and hence it cannot, consistently with the nature of the estate, be allowed. The moment the first taker dies, without having alienated the estate in his lifetime, it descends to and rests in the heirs of his body, and his will, which can only take effect after his death, cannot divest the heirs of the estate. So, at common law, a joint tenant could, during his life, alien his estate, but he could not devise it for the reason that " no devise can take effect till after the death of the devisor, and all the land presently cometh by the law to his companion who surviveth," and the commentator remarks that Littleton " by the words post mortem and per mortem used in the text, though they jump at one instant, alloweth priority of time in the instant, which he dis-tinguisheth by per and post. And the reason of this priority is that the survivor claimeth by the feoffer, and therefore in judgment of law his title is paramount to the title of the devisee, and consequently the devise is void." Co. Litt. 180a. It follows, therefore, that Mary Hammett had no right to devise the lands conveyed by the deed from Mark Cantrell, her power of disposition ceasing with her life, and that the sale thereof made by the executor, under the directions of her will, even though for the payment of debts, was without authority.