it, that a widow shall not have her dower or freebench of a trust (g). Yet there are other precedents, which do not appear to have been very hasty ones, in support of the doctrine, that the widow shall have her equitable dower of a trust (h). And it is acknowledged on all sides, that a husband shall have his curtesy of a trust estate (¿): yet we are, with much gravity, assured, that dower is favoured in equity! And it is amusing to see the embarrassment which inconsistency occasions. In Chaplin v. Chaplin we find the Chancellor noticing, that, by the preamble to the Statute of Uses (k), it appeared that, before that statute, the widow should not have dower of

[80]

(g) 2 Bl. Comm. ubi sup. 3 P. Wms 229. Chaplin v. Chaplin. 2 Atk. 525. Godwin v. Winsmore. 1 Bro. Ch. Cas. 325. Dixon v. Saville et al. 2 Ibid. 630. Curtis v. Curtis.

(h) See Preced. Chanc. 241. Ward v. Lady Dowager Dudley.

心

Lord Dudley and

2 P. Wms. 700.

Banks v. Sutton. 2 Vern. 583. Otway v. Hudson.

And see 2 Bro. C. C. 630. in Curtis v. Curtis.

(i) See the books cited in (g).

(k) 27 Hen. 8. cap. 10.

an use; and, therefore, as a trust is now what an use then was, she ought not to have dower of a trust. But it should not be forgotten, that it appears also, from the preamble to that very statute of Uses, that the husband should not, before that statute, [81] have had his curtesy of an use: though we do not find the Chancellor, in Chaplin and Chaplin, noticing this latter circumstance. Now if the reasoning of his lordship was right as to precluding the widow from her dower, it should seem, to moderate capacities at least, that it would equally hold as to curtesy. And, indeed, though his lordship did not notice the preamble of the statute as to curtesy, but only as to dower, yet he honestly confessed that "he could see no reason for the diversity," nor should he have made it, "himself." In short, it seems to be acknowledged, that the preclusion of the widow from dower of a trust does not depend upon the reason of the thing, nor upon "any well-grounded principle;" and, therefore, the reader may possibly conclude that it is high time to shut his book; or, at least, with a certain degree of modesty and prudence, to say with Lord

Loughborough (1), "I confess I think it so much settled, that it would be wrong to discuss it much!"

But, in the name of wonder, if the matter be wrong, why not set it right? If dower be a moral claim, and the favourite of equity, why should equity suffer "some hasty precedents" to come in its way? If an error has been made, can it be any reason why we should continue blundering to our lives' end? If the point be only questionable, let us meet it manfully, rather than warily shrink from a discussion. If the matter be grown too inveterate for the courts to interfere, yet, surely, if it be merely for the honour of the laws, and to preserve the appearance of consistency in our decisions, (to say nothing of the morality of the thing) some other aid should be had recourse to. Our ancestors were neither ashamed nor afraid to bring in occasional bills" for the amendment of the law."

However, though it be thus settled that widow shall not have her freebench of a

(1) 1 Bro. Ch. Cas, 328. Dixon v. Saville.

[ 62 ]

But free

bench shall

be subject to

a trust.

[83] trust, it is settled also (m) that if she do take her freebench at law, she shall take it subject to a trust in equity. Thus another person shall not be a trustee for the widow, though the widow shall be a trustee for another person. So much for congruity; and so much for equity favouring dower!

But the instances in which the widow of a trustee shall be permitted to take her freebench at law, and in which she shall not be permitted to take her dower, do not appear to be properly distinguished. If an estate of freehold be granted to A. and his heirs in trust for B. and A. die, leaving an heir, his widow shall not be suffered to have her dower; because it would be wholly needless, as the estate would descend to the heir who is to perform the trust; and if the widow were permitted to claim, she would only incur an expense and assume a burthen without an emolument. But if a copyhold be granted to A. for life, in trust for B.

(m) See 2 Ves. 633-4. Hinton v. Hinton. 2 Freem. 71. Bevant v. Pope; and see ibid. 43. Noel v. Jevon.

and the custom of the manor be that the

widow of the tenant for life shall have her

freebench, and A. die, living B., A.'s wi

dow shall have her freebench; for if she do

not take it, the estate would be at an end, [84] as no one else could take it: and if there were no one to take it, the lord would be entitled by escheat; and so not be subject to the trust (n). But the widow shall be subject to the trust; as the trust shall be commensurate with the legal estate (o): and the legal estate would not be at an end till the determination of the freebench of the widow of A. (p)

A curious point would arise on this case, supposing B. to have left a widow also; for who then should be benefited by the trust? A widow we have seen (q) shall not have

(n) See 1 Just. Blackst. Rep. 167. Burgess v. Wheate, and ante, vol. 1. p. [216].

(0) Ibid. 162.

(p) See 1 Lev. 20. Chantrell v. Randall, and 1 ibid. 172. Newton v. Shafto, & 1 Keb. 925. S. C. 2 Siderf. 165. Clarke v. Candle.

(q) Ante, p. [79].