majority">The Vice-Chancellor :

Henry Pritchard and Mariana Pritchard, whose transactions have given rise to the bill in this cause and who are represented, the latter by the complainant as her executor and the former by the defendants as his executors, are, I think, to be regarded in the light of husband and wife for all the purposes of this suit.

Although a marriage ceremony may never have taken place, yet, having lived and cohabited together as man and wife both in England and in this country for twenty years, having publicly represented themselves to be such—been so considered and acknowledged by their acquaintances—she bearing his name, being called his wife in a deed which they both executed and in all their dealings with each other *110in respect to the property in question recognizing the relation of husband and wife as subsisting between them, as appears to be conceded by both the bill and the answer in this cause, they are to be regarded as having that relation to each other in respect to the property as much so as if an actual marriage ceremony was proved: Jenkins v. Bisbee, 1 Edwards’s Ch. Rep. 377; Fenton v. Meed, 4 J. R. 52; Jackson v. Clair, 18 Ib. 346.

I shall, therefore, proceed to consider this case upon the assumption of the parties being husband and wife when the transactions took place. The principal question is as to the effect of the deed of reconveyance from Kinlock Stewart and wife to the Pritchards of the fourteenth day of April, one thousand eight hundred and sixteen. The property had been previously purchased by and in the name of Mariana Pritchard ; and the deed was made out to her alone. In order to carry into effect a new arrangement concerning the property, the legal title was put back again in Stewart; and the deed in question was then executed by him and his wife to both.

At law, a conveyance or devise of lands to husband and wife jointly creates an estate in them of the entirety as one person—being but one person in law, they do not take in moieties as joint tenants nor as tenants in common—one cannot sell the whole or any part without the concurrence of the other and, upon the death of one, the whole vests in the survivor, in which respect it partakes of the nature of a joint tenancy: 2 Kent’s Com. 132 ; 4 Ib. 362. It is laid down, however, as a well understood rule of law, that a husband and wife may, by express words, be made tenants in common by a gift or conveyance to them during coverture : 2 Preston on Abst. tit. 41; and from another work of high authority, it is very manifest that a gift or grant to a husband and wife is to have just such effect in respect to the estate which they take as was intended to be created. Thus, the wife may take only an estate for life and the husband an estate tail or in fee—and vice versa: Shepard’s Touch. 112, Preston’s edit. I have no hestation about adopting and following this rule, especially in a court of ■equity where the intention of the parties in any deed or *111instrument, not contrary to law, should be allowed to prevail.

What, then, does the deed in question purport to "convey or settle upon this husband and wife 1

In terms, it purports to convey the property in distinct moieties, the one equal half part to each. Habendum “the said equal undivided half part” unto the said parties of the second part their heirs and assigns for ever. These are very explicit words and as strongly expressive of a tenancy in common, in equal moieties, as if the words, to hold as tenants in common, had been used. Then follows the proviso or condition that the wife shall have the government and receive all the rents of the premises during life, but shall not sell or in any manner iueumber her half of the premises without consent of her husband, with full right and power nevertheless to will her half to whomsoever she may think proper; so, the husband is not to sell or incumber his half during his life without her consent, but may will the same to whom he pleases. In the event of either dying intestate, the whole to belong to the survivor. And lastly, in the event of the death of either leaving a will, the executors are not to act, but the rents are to go to the survivor ; and it is only at the death of the survivor that the executors are to dispose of the property according to the intentions of the parties as it may be expressed in their several wills. The wife died first, leaving a will and having appointed the complainant in this cause executor thereof, with power to sell her half of the property, the proceeds of which are bequeathed to relatives. The husband after- . wards died, leaving a will and appointing the defendants the executors thereof, with power to sell the whole premises, &c. Now, it is insisted, on the authority of Goodhill v. Brigham, 1 Bos. & P. 192, that all this proviso and condition in the deed and the power to dispose of the property by will is void, as being inconsistent with the fee which was given to her by the same deed ; that no modification or power grafted on the fee can be of any avail, for it is immediately merged in the fee. But, in Roper (Husband and Wife, 2 vol. 105,) it is shown that the weight of authority is the other way ; and that the power and the fee may *112well subsist together without being merged. He, therefore says, if an estate be given to a married woman in fee, with a power annexed to or preceding such limitation to dispose of the fee as a feme sole, such power will be valid ; and, upon the execution of it, the fee which, till appointment, vested in her, would be divested. In Thomas and Fraser’s notes to Sir Edward Cleve’s Case, 6 Coke, 17, a., there is a complete summary of the law in these words: “ It has been doubted whether a power and a fee may subsist distinctly in the same person without the power merging in the fee. Sir Edward Cleve’s case has always been cited as an authority to show that they may. It is now settled accordingly that, the fee vests until the execution of the power and when the power is executed it is the limitation of the use under and by effect of the instrument by which the power was reserved”—referring to Maundrell v. Maundrell, 10 Ves. 253 ; Ray v. Pung, 5 Mad. R. 310, and 5 Barn. & Ald. 561, as settling this doctrine.

Again—so far as this is a question between the representatives of the wife and the representatives of the husband under their several and respective wills, I think it is very clear that the latter can have no rightful claim on the wife’s separate and distinct moiety of the estate as I have shown it to have been. By the arrangement which was entered into and agreed upon between them and which it is very certain was intended to be carried into effect and consummated by putting the title back in Kinlock Stewart and then accepting from him a fresh conveyance in the manner and upon the terms specified in the last deed, the husband became bound to abide by the terms arid conditions of it. He must be deemed to have relinquished thereby all right to one moiety of the property; and to have become content to take the other with the power of disposal or appointment by his will. It was competent for him to enter into such an agreement with his wife and there was sufficient inducement and consideration to make it binding and obligatory on him and his heirs, devisees or appointees. But the great' difficulty in a legal point of view is, how to consider the wife bound by an agreement which she enters into with her husband after the marriage and while under the legal *113disability of coverture, by which she can take to herself a power to dispose of her real estate by will or appointment, executed during coverture, so as to break the descent and deprive her heir of it. When the legal title and estate is vested in a trustee, subject to her appointment, no such difficulty can arise ; and so too when the power is reserved or secured to her by agreement before marriage. This, however, is a matter with which the husband’s representatives can have no concern. He has parted with all his control over and right to the wife’s estate. On this subject I refer to Atherley, 336, 339 ; 2 Roper’s Husband and Wife, 181.

Then, how does the case stand with regard to the right of the present complainant as executor of the wife, to proceed and have a sale of her moiety of the property as directed by her will ? If he can give a good title to a purchaser or if the court can decree such a title as against the wife’s heir, then, all difficulty in this case is at an end. If this was property which belonged to the wife before marriage and concerning which she had made the agreement or arrangement in question with her husband after their marriage, then, both upon principle and authority, the power which she has undertaken to exercise by her will would be invalid and her heir would be entitled. But this is property which came to the wife during the coverture by deed, containing conditions and a power which, as already shown, are not altogether nugatory. I think, for the purposes of this suit, the property may well be considered as coming to the wife ab initio by this last deed. With respect to the real estate which accrues to the wife during marriage by deed or will, if no trustees be interposed and the instrument expresses that the lands shall be to her separate use and that she shall have power to dispose of them, although she thereby takes the legal fee, she may nevertheless appoint it, so that such appointment will bind her heir and convert him into a trustee for the appointee. This Mr. Roper lays down as the rule in such cases, notwithstanding Goodhill v. Brigham, 2 Roper, 183, 184; and in this case I fully concur.

It is manifest, however, that a perfect decree for sale and *114conveyance of an effectual title to a purchaser cannot be made without bringing in the heir; and as it appears the wife left no heirs capable of inheriting, they being aliens, tjie Attorney General must be made a party before an effectual decree can be pronounced.

Order that the cause stand over for that purpose.

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