have in several cases laid down the doctrine, that to constitute a good donatio causa mortis, the gift should be full and complete at the time, passing from the donor the legal power and dominion over the thing intended to be given, and leaving nothing to be done to perfect it. But this principle may now be regarded as overruled by the weight of both English and American authority.1

5. May a donatio causa mortis be the subject of a trust?

The point has not been expressly adjudicated, but the inclination of the Courts is very manifest to sustain such a donation; and this is in analogy with the principles of the civil law.2

1 The following points of interest have been adjudicated in our own country, on this subject:

1. A donatio causa mortis will be good, where the subject is delivered to a third person, for the use of the donee. 3 Binney, 370; 15 Maine, 429; 1 Paige, 316; 5 Blackford, 179; contra, 10 Mass., 427.

2. In 1 Cowen R., 598, the Supreme Court of New York held that a promissory note of the donor himself, executed in his last illness, and delivered by the maker to the donee, (the payee) in contemplation of death, was a good donatio causa mortis, although no consideration passed. But in 14 Pickering, 207, the contrary doctrine is affirmed, so far as it applies to the donor's own promissory note, payable to the donee, which it is said cannot be the subject of a donatio causa mortis. But the promissory note of a third person may be the subject of a donatio causa mortis.

3. In 2 Wharton, 17, it was held not to be indispensable to a valid donatio mortis causa, that it should be made in extremis, like a nuncupative will. The Ch. J. defined it to be a conditional gift, depending on the contingency of expected death, and that it was defeasible by revocacation or deliverance from the peril. To constitute a donatio causa mortis, the circumstances must be such as to show that the donor intended the gift to take effect if he should die shortly afterwards; but that if he should recover, the thing should be restored to him.

2 It was held in 8 Meeson and Welby, 401, that a gift may be good as a donatio causa mortis, although coupled with a trust, that the donee shall provide for the funeral of the donor; and in 21 Maine, 185, that a donatio mortis causa is good, although a chose in action, accompanied by a mortgage as collateral security therefor; and notwithstanding it were in trust, for the benefit of others besides the donee.

CHAPTER XI.

CONFUSION OF BOUNDARIES.

1. WHEN EQUITY WILL ENTERTAIN A BILL TO ASCERTAIN THE BOUN

DARIES OF LAND.

1. When will Courts of Equity entertain a bill to ascertain the boundaries of land?

The jurisdiction of Equity, in cases arising out of the confusion of boundaries, is very ancient, but its sources are at best, conjectural. It most probably originated, in the consent of the parties, and was extended, by easy transition, to cases which stood upon equitable grounds. The Courts are very adverse, at present, to its extension. The existence of a controverted boundary, will not, by itself, be sufficient, to induce the Court to entertain a bill for relief: for, the ordinary legal remedies may be adequate. Some equitable consideration must supervene, or the Court of Chancery has no jurisdiction to settle the boundaries of legal estates. This occurs; First, where the confusion has been created byý fraud. Second, Where the confusion has arisen from the negligence or misconduct of a party, bound to preserve and protect the boundaries. In this case, it is indispensable to aver and establish by proof, that the boundaries cannot be found without such assistance. Third, when a bill in Equi

In the case of Stuart's Heirs, vs. Coalter, 4 Rand. 87, Judge Green, in delivering his opinion, used language somewhat inconsistent with the

ty will prevent a multiplicity of suits, as if a right of common in lands, claimed by a number of persons, has become intricate, and entangled, from confusion of boundaries. Fourth, where, without the aid of Equity, irreparable mischief would ensue; as when rent is chargeable on lands, and the remedy by distress, has been lost by confusion of boundaries. Courts of Equity ascertain the boundaries by a commission appointed for the purpose, and if that is impracticable, they will do justice by assigning reasonable boundaries, or setting out lands of equal value.1

statement of the text. He says, that where the tenant holds adjoining lands of his own, and fraudulently or carelessly, confounds or destroys the evidence of his landlord's boundaries, then, the latter may sue the tenant in Equity; not for the purpose of establishing his boundary, but for having a decree that the tenant shall transfer to him, so much of his land, as will make up the original quantity, belonging to the landlord. In such case, if the actual boundary was proved by the tenant, the suit would fail.

1 A Court of Equity has no jurisdiction to settle the title or bounds of lands, between adverse claimants, unless the plaintiff has an equity against the defendant claiming adversely to him. An equity against other persons, will not give such jurisdiction. 4 Rand. 87.

CHAPTER XII.

DOWER.

1. JURISDICTION OF EQUITY IN CASES OF DOWER.

2. WHEN WILL IT GRANT RELIEF AGAINST A PURCHASER WITHOUT

NOTICE FOR A VALUABLE CONSIDERATION.

1. When will Courts of Equity entertain a bill for the assignment of dower ?1

1 Two points, not considered in the text, may be appropriately added in this connection.

1. In England, a widow is not dowable in her husband's equity of redemption, but in most of the States of our Union, a contrary rule prevail's. In several of them, the statute law expressly gives the widow her dower, in the equitable estates of which her husband died seized, even in all trust estates, in which he took a beneficial interest. But, in Maryland, and in the Maryland part of the District of Columbia, the common law rule prevails, and a widow is not dowable in her husband's equity of redemption. 4th Kent's Com. 44, 45.

2. There are several American cases, in which the question, whether the widow of a partner, is entitled to dower in real estate, held by the partnership, is discussed with great learning. Chancellor Kent refers with particular commendation, to the case of Greene vs. Greene et al, 1st Ohio Rep. 535, where it was held, that the widow of a deceased partner is not entitled to dower in lands, purchased and paid for, out of the partnership funds, under articles stipulating for the sale of the whole partnership property, for the payment of debts, and used exclusively in carrying on their trade, the partnership being insolvent, and the deceas

Courts of Equity entertain a general concurrent jurisdiction with Courts of Law, in the assignment of dower, in consequence of the difficulties which in almost every instance, embarrass the legal proceeding.1 An almost universal ground of jurisdiction is found, in the necessity of resorting to Equity, either to obtain a discovery of the title deeds, or of the dowable lands, or to obtain an account of the mesne profits, or to remove an impediment to a recovery at law. There are many other cases, in which the aid of Equity is indispensable, as where the husband is tenant in common of the lands dowable, or where they have passed into the hands of various purchasers, and their relative value is not easily ascertainable. Courts of Equity will not only assign dower, but decree an account of the rents and profits,

ed partner very greatly indebted to the firm. This case proceeded on the general principle, that lands agreed to be turned into money, or money into lands, shall be considered in equity, as that species of property, into which they are directed to be converted. So, in 8 Ohio, 364; where partners manifest an intention to hold land, as partnership stock, and buy and sell it as such, dower cannot be claimed in such lands, to the prejudice of partnership creditors. But there is no decision in that State, which declares, that as against the heir, or the general creditors of the husband, the widow is not entitled to dower in land, held as partnership property. This subject was very elaborately considered, in the cases of Dyer vs. Clark, and Howard vs. Priest, 5 Metcalfe, 562, 582; and the Court held, that when real estate is purchased by partners, with the partnership funds, for partnership use and convenience, in the absence of any express agreement, or of circumstances showing an intent that such estate shall be held for their separate use, the widows of the partners are not entitled to dower in the estate, nor are the heirs of the partners entitled to the accruing rents and profits, until the partnership accounts are settled and the partnership debts paid. Vide also, 2d Desaus. 471; 7 Conn. 11; 9 Dana, 410. In 3rd V. E. Howard, 361, it was decided, that when lands were purchased by partners, in the absence of any agreement that they should be considered as joint stock, or any application of them, evincing such an original understanding, the wife of a deceased partner, is entitled to dower; vide also, 7th How., 437. The same principle is affirmed, in 2d Edw. Rep. 28, and 6th Yerger, 20.

If the title to dower be of an equitable nature, the widow must resort to equity for relief. 3rd Blackford, 12.