souri, it would seem to be subject generally to the husband's debts; whereas in North Carolina and Indiana, the widow's dower is declared by statute to be paramount to the claims of creditors.

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ཕ་

At common law, the wife of a trustee, who had the legal estate in fee, and the wife of a mortgagee, after condition broken, had a valid title at law to dower; for courts of law looked only to the legal estate. To avoid this result, it was the ancient practice in mortgages to join another person with the mortgagee in the conveyance, so as by that joint seisin to avoid the attachment of the legal title of dower. But a court of equity considered the equity of redemption *as a right inherent in the land, which barred all persons, and it would always restrain the widow from prosecuting her dower, if the mortgage had been redeemed, or the trustee had conveyed the land according to the direction of the cestui que trust; and it has been long held, and is now definitivly settled, that the wife of a trustee is not entitled to dower in the trust estate, any further than the husband had a beneficial interest therein; and if she attempts it at law, equity will restrain her, and punish her with costs. Nor is the wife of a cestui que trust dowable in an estate to which her husband had only an

takes her dower only in the lands whereof her husband "died seised or, possessed," and she is only saved from the fraudulent conveyances of her husband, made to defeat her dower. Statute Laws of Tennessee, Caruthers & Nicholson, 1836, p. 262. 497. London v. London, 1 Humphrey's Tenn. Rep. p. 1, S. P.

Griffith's Register, h. t. Frost v. Etheridge, 1 Badger & Dev. 30. Norwood v. Marrow, 3 Battle, 442. In Indiana the widow takes two-thirds of the personal estate, and one-third of the real estate, in fee, subject to debts, or her usual dower, at her option, and her dower stands on the ground of the common law. Revised Statutes of Indiana, 1838, p. 237.239.

b Bro. tit. Dower, pl. 2. Perkins, sec. 392.

e Cro. Car. 191.

Lord Hardwicke, in Hinton v. Hinton, 2 Vesey, 631. Noel v. Jevon, 2 Freeman, 43.

equitable and not a legal title during coverture. It has, however, been thought reasonable, and consistent with principle, that a court of equity should apply the rules and incidents of legal estates to trust property, and give the wife her dower in her husband's equitable estate. But at common law, the wife was not dowable of a use, and trusts are now what uses were at the common law; and it is well settled in the English cases, that the wife of a cestui que trust is not dowable in equity out of a trust estate, though the husband is entitled to his curtesy in such an estate. A widow is consequently not dowable in her husband's equity of redemption; and this anomalous distinction is still preserved in the English law from the necessity of giving security to title by permanent rules. This policy outweighs the consideration that would naturally be due to consistency of principle. Sir Joseph Jekyll, in Banks v. Sutton,' held, that the widow might be endowed of an equity of redemption, though the mortgage in fee was executed before the marriage, upon her paying the third of the mortgage money, or keeping down a third of the interest. But the reasoning of that learned judge did not *prevail to establish his doctrine, and the distinction which he suggested between the case of a trust created by the husband himself, and a trust estate which descended upon, or was limited to him, has been condemned by his successors as loose and unsound.

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* D'Arcy v. Blake, 2 Sch. & Lef. 387. Hamlin v. Hamlin, 19 Maine Rep. 141. 2 P. Wms. 700.

Ray v. Pung, 5 B. & Ald. 561.

The rule in Chancery had been vacillating previous to that decision, though the weight of authority, and the language of the courts, were decidedly against the right to dower. Colt v. Colt, Reports in Chancery, vol. i. 134; Radnor v. Rotherham, Prec. in Ch. 65; Bottomly v. Fairfax, ibid. 326. Ambrose v. Ambrose, 1 P. Wms. 321, were all opposed to Fletcher v. Robinson, cited in Prec. in Ch. 250, and 2 P. Wms. 710.

a Chaplin v. Chaplin, 3 P. Wms. 229. Godwin v. Winsmore, 2 Atk. 525.

The same rule prevails as to an equity of redemption in an estate mortgaged in fee by the husband before marriage, and not redeemed at his death.a

In the United States, the equity of the wife's claim has met with a more gracious reception; and in Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Tennessee, Alabama, Mississippi, Indiana, and probably in most or all of the other states, the wife is held dowable of an equity of redemption existing at the death of her husband. Though the wife joins with her husband in the

Sir Thomas Clarke, in Burgess v. Wheate, 1 Blacks. Rep. 138. Dixon v. Saville, 1 Bro. 326. D'Arcy v. Blake, 2 Sch. & Lef. 387.

a In Maryland, and in the Maryland part of the District of Columbia, the rule of the common law prevails, and a widow is not dowable in her husband's equity of redemption. Stelle v. Carroll, 12 Peters, 201. But in England, by the statute of 3 and 4 W. IV., c. 105, dower now attaches upon equitable estates of inheritance in possession, other than estates in jointtenancy, and upon lands in which the husband, though he had no seisin, was entitled to a right of entry at his death. On the other hand the wife is not entitled to dower in lands sold by the husband in his lifetime, or devised by will, or declared by will to be exempt from her dower; and all partial estates and interests created by the husband by any disposition or will, and all debts and encumbrances to which his lands are liable, are declared to be effectual against the claim of dower. A devise of any estate in the land to the widow bars her dower, unless a contrary intention be declared, but not a bequest of personal estate, unless an intention to that effect be declared. These provisions leave the wife's dower completely in the husband's power, and break in upon the common law right of dower as extensively as any of the alterations in the laws of the American states.

Bird v. Gardner, 10 Mass. Rep. 364. Snow v. Stephens, 15 ibid. 278. 3 Pick. Rep. 476. Walker v. Griswold, 6 ibid. 416. Fish v. Fish, 1 Conn. Rep. 559. Hitchcock v. Harrington, 6 Johns. Rep. 290. Collins v. Torry, 7 ibid. 278. Coles v. Coles, 15 ibid. 319. Titus v. Neilson, 5 Johns. Ch. Rep. 452. New-York Revised Statutes, vol. i. 740, sec. 4. Montgomery v. Bruere, 2 Southard, 865. Reed v. Morrison, 12 Serg. & Rawle, 18. Heth v. Cocks, 1 Randolph, 344. 1 Virginia Revised Code, 1819. Mass. Revised Statutes, of 1835. Revised Statutes of North Carolina, c. 121, 1828. Taylor v. M'Crackin, 2 Blackf. Indiana Rep. 261. M'Mahan v. Kimball, 3 ibid. 1. Rutherford v. Munce, Walker's Miss. Rep. 371. By the NewYork Revised Statutes, vol. ii. 112, sec. 71, 72; ibid. 374, sec. 63, 64, the wife has her dower in the inheritable interest of the husband in lands, whereof

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mortgage, and though the husband should afterwards release the equity, the wife will be entitled, at his death, to her dower in the lands, subject to the mortgage; and if they are sold under the mortgage, then to her claim as for dower in the surplus proceeds, if any there should be. If, however, the mortgage was executed on a purchase before the marriage and the husband releases the equity after the marriage, his wife's right of dower is entirely gone; for it never attached, as the mortgage was executed immediately on receiving the purchaser's deed. In the cases of Harrison v. Eldridge, and Barker v. Parker, the wife's interest in the equity of redemption, in a mortgage executed by her and her husband, was held not to be sold by a sale of her husband's equity, under an execution at law against him only; and the purchaser at the sheriff's sale took the land subject to the widow's dower. These cases present a strong instance of the security afforded to the wife's dower in the equitable estate of her husband. But if the mortgagee in such a case enters under a foreclosure, or after forfeiture of the estate, and by virtue of

с

he died seised of the equitable, but not of the legal title. The same in Illinois. Revised Laws of Illinois, edit. 1833, p. 627. The same in Kentucky, 6 Dana, 204, 1 B. Monroe, 91, and in Tennessee, Statutes Laws of Tennessee, 1836, p. 265, and act of 1823, ch. 37.

• Tabele v. Tabele, 1 Johns. Ch. Rep. 45. Swaine v. Perine, 5 ibid. 482. Titus v. Neilson, 5 ibid. 452. Peabody v. Patten, 2 Pick. Rep. 517. Gibson e. Crehore, 5 ibid. 146. Eaton v. Simonds, 14 ibid. 98. Keckley, v. Keckley, 2 Hill's S. C. Ch. Rep. 252–256. In New-York, if the lands of a testator or intestate be sold for the payment of debts, by order of the surrogate, and the widow will not accept of payment of a sum in gross, in lieu of her dower upon the lands sold, the surrogate is directed to set apart one-third of the purchase money, to be invested by him in permanent securities, on annual interest, and the interest to be paid to her during life. The same payment, or investment, is to be made, with the widow's consent, in the case of the sale of infant's estates. New-York Revised Statutes, vol. ii. 106, sec. 36, 37. 45. Ibid. 196, sec. 181.

b Jackson v. Dewitt, 6 Cowen, 316.

e2 Halsted, 392. 17 Mass. Rep. 564.

his rights as mortgagee, the wife's dower must yield to his superior title; for, as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely subordinate to that title. The wife's dower in an equity of redemption, only applies in case of redemption of the encumbrance by the husband or his representatives, and not when the equity of redemption is released to the mortgagee, or conveyed.a

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The reason of the American rule giving dower in equities of redemption, is, that the mortgagor, so long as the mortgagee does not exert his right of entry or foreclosure, is regarded as being legally as well as equitably seised in respect to all the world but the mortgagee and his assigns. Even in the view of the English courts of equity, the owner of the *equity of redemption is the owner of the land, and the mortgage is regarded as personal assets. The rule, in several of the states, is carried to the extent of giving to the wife her dower in all trust estates. This is said to be the law in New-Jersey, Pennsylvania, Maryland, Virginia, Kentucky, Mississippi, Ohio, Illinois, and Alabama; but the rule in those states must be understood

a

Popkin v. Bumsted, 8 Mass. Hildreth v. Jones, 13 ibid. 525. Jackson v. Dewitt, 6 Cowen, 316. b Brown v. Gibbs, Prec. in Ch. 97. Carbone v. Scarfe, 1 Atk. 605. • Shoemaker v. Walker, 2 Serg. & Rawle, 554. Reed v. Morrison, 12 ibid. 18. Statutes of Virginia, 1785 and 1792. Miller v. Beverly, 1 Hen.

Rep. 491. Bird v. Gardiner, 10 ibid. 364.
Gibson v. Crehore, 3 Pick. 475. 480, 481.
Van Dyne v. Thayre, 19 Wendell, 162.

Munf. 368. Clairborne v. Henderson, 3 ibid. 322., Griffith's Reg. American Jurist, No. 4, 398. Lawson v. Morton, 6 Dana's Ken. Rep. 471. Elmer's Dig. 147, note, where the New-Jersey case of Dennis v. Kiernan, in Chancery, 1829, is cited. The Statutes of Ohio, 1824, give dower not only in all lands whereof the husband was seised as an estate of inheritance during the coverture, but in all his right, title, or interest at the time of his death, in lands and tenements held by bond, article, lease, or other evidence of claim. Chase's Statutes of Ohio, vol. ii. 1314. If the husband purchases land, takes possession, makes improvements, and pays part of the purchase money without deed, the widow is entitled to dower. Smiley v. Wright, 2. Ohio Rep. 507.