But not to Colt v. Colt, 1 Cha. R. 134. Bottomley v. Fairfax, Prec. in Cha. 336. Ambrose v. Printed Tit. 28. c. 2. 15. It might have been expected, that where the Court of Chancery deviated so far from the old law of uses, as to allow a tenancy by the curtesy of a trust estate, it would have extended the same indulgence to dower, being a right strongly favoured by the common law. Yet it has been long settled that a widow is not dowable of a trust estate: whether the husband himself has parted with the legal estate; or a trust estate has descended upon, or been limited to him. 16. The first time this point appears to have been determined, was in 12 Cha. II.; and though this doctrine has been followed by subsequent Chancellors, yet they have always expressed their regret at being bound by such a precedent. But so many cases of this kind have arisen, and the determinations have been so uniform, against the claim of dower out of a trust estate, that it is not probable any alteration will be made in this respect. 17. A husband before marriage conveyed his estate to trustees and their heirs, in such manner as to put the legal estate out of him. It was determined, that though the trust estate was limited to him and his heirs, yet his widow should not be endowed of it: that the court had never gone so far as to allow dower in such a case. 18. A. purchased an estate in the names of two trustees, who acknowledged the trust after his death. Upon a claim made by his widow to dower, it was decreed that she was not dowable. The decree was affirmed in the House of Lords. 19. In the case of Chaplin v. Chaplin, a question arose, whether the widow of the cestui que trust of a rent-charge was entitled to dower out of it. Lord Talbot observed, that by the preamble of the statute of uses it was recited, that by means of those uses, the wife was defeated of her dower; by which it appeared that the wife of cestui que use was not dowable at common law; if so then, as at common law, a use was the same as a trust was now, it followed that the wife could no more be endowed of a trust now, than at common law, and before the statute, she could be endowed of a use; so that there was the opinion of the whole Parliament on the point. That it had been the common practice of conveyancers, agreeable thereto, to place the legal estate in trustees, on purpose to prevent dower; wherefore it would be of most dangerous consequence to titles, and throw things into confusion, contrary to former opinions, and the advice of so many learned and eminent men, to let in the claim of dower upon trust estates. He took it to be settled that the husband should be tenant by the curtesy of a trust, though the wife could not have dower thereof; for which diversity, as he could see no reason, so neither should he have made it; but since it had prevailed, he would not alter it. That there did not appear to be so much as one single case, where, abstracting from Att. Gen' all circumstances, it had been determined there should V. Scott, be dower of a trust. Forrest 138. 20. Sir J. Jekyll has attempted to distinguish 2 P. Wms. between the case of a trust created by the husband 708. himself, and a trust created by another person. In the first case he admits it to be a settled point, from the authority of the preceding cases, that the wife cannot have dower; because it must be presumed the trust was created for the sole purpose of barring dower. Accordingly it had been the common practice for purchasers to take a conveyance of the legal estate in a trustee's name, to prevent dower. But Goodwin v. Banks v. in the second case, where a trust estate descended, or came to the husband from another person it was different. This distinction has however been exploded by Lord Hardwicke, in a case which will be stated hereafter. 21. It is also laid down by Sir Joseph Jekyll, that where a particular time is appointed for conveying the legal estate to the husband, and he outlives that time, without obtaining such conveyance, his widow shall notwithstanding be entitled to dower in equity; for where an act is to be done by a trustee, that is looked on as done, which ought to have been done. But this doctrine is not supported by the decree in the case referred to, without the additional proposition, that a widow was dowable of an equity of redemption in fee. It was a mortgage in fee, and not paid off during the coverture. If the trustee therefore had conveyed, he would have conveyed an equity of redemption only, subject to a mortgage in fee; and the widow would not have been entitled to dower, unless she was dowable out of such equity of redemption, which she was not. This therefore, Tit. 15. c.3. though said, will not support the decree; and the proposition is too important, and contradicted by too many analogies, to be hazarded upon this dictum alone. Dixon v. Saville, Nor to Free Goodwin v. Winsmore, 2 Atk. 525. 22. It is said in the case of Otway v. Hudson, 2 Vern. 583. that the widow of a cestui que trust of a copyhold ought to have her free bench, as well as if the husband had the legal estate in him. But this doctrine has been contradicted in the following cases. 23. A bill was brought by a widow for a customary The husband's father bought the lands, which were conveyed to him and D. and the heirs of the father. The father devised the lands to the estate. husband in tail; and D. survived the husband. The custom was laid for the wife to have the whole, as her free bench. Lord Hardwicke-" It is an established doctrine now, that a wife is not dowable of a trust estate. Indeed a distinction is taken by Sir J. Jekyll, in Banks v. Sutton, in respect to a trust, where it descends or comes to a husband from another, and is not created by himself; but I think there is no ground for such a distinction; for it is going on suppositions which will hold on both sides; and at the latter end of the report, Sir J. J. seems to be very diffident of it, and rested chiefly on another point in equity; so that it is no authority in this case. But there is a late authority in direct contradiction to the distinction above taken in Banks v. Sutton; the case of the Attorney General v. Scott. The Forrest 138. only case for the plaintiff is that of Otway v. Hudson, 2 Vern. 583; there it was free bench, and is so called here; but it appears plain to be only customary dower. Free bench is merely a widow's estate in such lands as the husband dies seised of, not that he Forder v. Wade, is seised of during the coverture; as dower is. There Tit. 10. c. 3. were many circumstances in the case of Otway v. Hudson; it was decreed on the endeavour of the husband to get the legal estate surrendered, and the refusal of the trustees; and grounded on his will: but as to the general doctrine at the latter end, it is not warranted by the decree." The bill was dismissed. 24. Where a man, immediately before his marriage, Tit. 32. c. 26. privately and secretly conveys his estate to a trustee for himself, in order to defeat his wife of dower, such conveyance will be deemed fraudulent and void. 4 Bro. R. 521. 25. Before the statute of uses, the king was not Subject to entitled to any use upon an attainder for high for Treason. Forfeiture 1 P. C. 248. But not for Att. Gen1 v. Sands, 1 Hale, P. C. 249. treason of the cestui que use, as is mentioned in the preamble of that statute: so that afterwards trusts were, by an analogy drawn from uses, also protected from forfeiture, upon an attainder of the cestui que trust for high treason. By the statute 33 Hen. VIII. c. 20. it is enacted, "that if any person shall be attainted or convicted of high treason, the king shall have as much benefit and advantage by such attainder as well of uses, rights, entries, and conditions, as of possessions, reversions, remainders, and all other things, as if it had been done and declared by authority of parliament." 26. Lord Hale has observed, that at the time when this statute was made, there could be no use but that which is now called a trust; and although it was determined in Abingdon's case, that a trust estate of freehold was not forfeited by attainder of treason, yet that resolution could not be reconciled with the statute 33 Henry VIII., as the uses there mentioned could be nothing but trusts; therefore he was of opinion, that upon an attainder for high treason of the cestui que trust of an inheritance, the equity or trust was forfeited; though possibly the land itself was not forfeited. 27. Whatever may be the case in an attainder for high treason, it has been determined that an attainder for felony is not within the statute 33 Henry VIII. Therefore, in such a case, neither the land, nor the trust becomes forfeited; for the king has his tenant as before, namely the trustee. 28. Freeman Sands being attainted of felony, for the murder of his brother, and having a trust estate in lands held of the King, of which Sir George Sands had the legal estate; the Attorney General preferred an information in the Exchequer against Sir G. Sands, |