There is no error in tbe judgment sustaining tbe demurrer.
If it is assumed that an equitable estate and not .a mere right vested in R. S. Phifer under tbe will of bis mother, and that bis interest therein was realty, it was, in any event, subject to certain trusts and charges, and neither be nor bis widow could have an estate in possession until these trusts and charges were satisfied.
There were seven children of M. M. Phifer, and it clearly appears from her will that, after the payment of certain debts, she desired an equal division among her children, and that R. S. Phifer should have nothing in such division until he had accounted for $2,000 advanced to him.
He had, therefore, no interest in the land, nor in the proceeds of its sale, unless, after the payment of the debts mentioned in the will, and providing for the support and maintenance of the husband of' the testatrix, there was a surplus fund of at least $14,000, being $2,000 to each of the seven children; and there is nothing in the petition suggesting that this condition exists. On the contrary, the deed to his mother in 1879, and to his brothers and sisters in 1881, and the fact that thereafter he made no further claim for a period of thirty years, indicate that he had been advanced beyond his proportionate share under the will.
Nor is there any allegation in the petition that any part of the trusts declared in the will have been executed, and that parts of the land remain unsold, or that it was unnecessary to sell to perform the trusts.
*227If, however, these allegations were made, we would be inclined to adopt the construction of the will contended for by the defendants, and, if so, the relief prayed for would be denied.
An analysis of the will of Mrs. M. M. Phifer shows:
(1) That she- received, under the will of her father, William E. White, a trust fund of the value of $10,000, and by the terms thereof she had the use of same during her life, and at her death said fund was to be equally divided among her children.
(2) That out of said fund she advanced to her son Robert S. Phifer, the husband of the petitioner, $2,000; that she invested $6,300 of said trust estate in part payment of the lands devised in her will; that she held certain contracts for the purchase of the lands devised, and at her death all the purchase money had not been paid.
(3) .That she bequeathed and devised her estate, both real and personal, to her husband, William F. Phifer, and to her son William W. Phifer, in trust, with power to sell said property or any portion thereof, either at public or private sale, as in their discretion might seem most judicious, and directed that they should apply the proceeds therefrom as follows: (a) to the payment of the residue of the purchase money due upon the purchase of said property; (&) to the payment of her debts; (c) the residue of her estate to be divided among all her children named in the will, subject to a charge in said division against her sons, William W. Phifer of $1,300 and R. S. Phifer of $2,000, advanced to them respectively out of the said trust fund of $10,000 which she received from her father’s estate, as set forth in her will; (d) she further provided that the whole of her residuary estate was subject to a charge for the support and maintenance of her husband, William F. Phifer, for and during his life.
The estate of the testatrix is devised to her husband and son in trust for certain purposes, and the purposes are declared. This created an active trust, and the title remained in the trustees until the trusts were performed. The children of the testatrix had an interest in the property, but they were not entitled to possession of any part of it, and could not know what *228they would get until tbe trusts were closed. If so, it may well be contended that they bad no estate, but a mere right to have the trusts executed, and an account stated, and in that event there would be no seizin in the husband. Thompson v. Thompson, 46 N. C., 431.
It is true that a widow may be endowed of an equitable estate, but the husband must be seized of an estate, whether legal or equitable.
’ “The seizin of the husband, in order to support the dower, must be seizin in law; not only actual constructive possession, but the legal right to possess.” Haire v. Haire, 141 N. C., 88-90.
“The right to dower does not attach to the lands of the husband unless he was seized during coverture, and the husband must have an estate of inheritance. The word seizin is said to have a technical meaning when used in this connection, and at common law it imported a feudal investiture of title by actual possession, and with us it is the force of possession under some title or right to hold the possession; it is either a seizin in deed or a seizin in law, the former being in actual possession of a freehold estate and the latter the right to the immediate possession or enjoyment of a freehold estate. Seizin applies only to freehold estates or to the possession of land of a freehold tenure. Seizin in fact and in deed has also been defined to be possession with intent on the part of him who holds it to claim a freehold interest, and seizin in law as the right of immediate possession according to the nature of the estate.’.’ Redding v. Vogt, 140 N. C., 566.
It is also not unreasonable to conclude, from an inspection of the whole will, that it was the purpose of the testatrix that all of her estate should be sold and the proceeds divided.
If this was her intention to have the real estate sold and converted into personalty the interest of the children in the estate would be personal property. Benbow v. Moore, 114 N. C., 269.
The testatrix received, under her father’s will, $10,000, which belonged to her children at her death, and she had advanced to the husband of the petitioner more than his share of the fund.
*229She had invested $6,300 of this fund in land, and owed a part of the purchase money, and she knew that she must account to the five children who had received nothing.
Under these facts appearing on the face of the will, and knowing that the children could follow the trust fund in the land, she devises the land to her executors in trust to sell, and, after the payment of certain claims, to divide the proceeds among her children.
If this construction is permissible, the case of Patton v. Patton, 60 N. C., 574, is an authority .against the petitioner.
The language used in providing for the support of her husband seems to support this view. If she did not intend for the land to be sold and the proceeds divided, why did she not give him a life estate in the land?
If either of these contentions can be maintained, ihere, was no seizin in the husband, and the petitioner would not be entitled to dower; but we refrain from passing on them finally in the condition of the pleadings.
Affirmed.