Packard v. Marshall

¶1The devise to trustees “ in trust for the use and benefit of my son Charles T. Packard, to be applied and appropriated to the use and benefit of said Charles T., at the discretion of my said trustees,” was of an estate in fee. This, under the well-established rule, that, when the devise is in trust, and the trust is of such a nature that it does or by possibility may require a legal estate in the trustee beyond that of an estate for his own life, then, without words of limitation in the devise, the trustee shall take a fee. To accomplish its purposes, the trustee must have a legal estate coextensive with the trust, and, under this clause of the will, all that was devised thereby might have been appropriated to Charles T. Packard. Cleveland *303v. Hallett, 6 Cush. 403. Even then, if the deed made to Howard of the land demanded in this action was void, and conveyed no title, and if the estate of the trustees and of the cestui que trust has not been barred by the statute of limitations, (upon which two propositions we do not intend to pass,) the demandants can only have an equitable title thereto, which will not enable them to maintain a writ of entry. In an action to recover land, alleging a legal title, such a title must be established. Chapin v. Chicopee Universalist Society, 8 Gray, 580. When the purposes of a trust have failed, or have been completely performed, the trustees then hold the estate for the benefit of the heirs at law as a resulting trust, and are answerable to them for it upon proper proceedings. Easterbrooks v. Tillinghast, 5 Gray, 17. Ackroyd v. Smithson, 1 Bro. Ch. 503. Cox v. Parker, 22 Beav. 168. Judgment for the tenant.