The case of Buckworth v. Thirkell was followed in Moody and Wife v. King, 2 Bing. 447; and in this country, in the cases of Milledge v. Lamar, 4 De Saussure (So. Car.), 617; Evans v. Evans, 9 Barr. (Pa.) 190, and Northcut v. Whipp, 12 B. Monroe (Ky.), 65. In a later case in South Carolina, Wright v. Herron, 6 Rich. Eq., the court of errors was equally divided, and no decision was pronounced. This case presented the same question as the one presented in Buckworth v. Thirkell.
In the case of Evans v. Evans, supra, the opinion of the Supreme Court of Pennsylvania was pronounced by Chief Justice Gibson -one of the ablest jurists that ever sat on that bench. It will be seen that he was laboring to break down the imaginary distinction attempted to be drawn by Mr. Butler and others between the cases of remainder over, made and provided to take effect after the termination of an estate tail by failure of issue, and the termination of an estate in fee simple by failure of heirs, with a valid limitation over by way of executory demise. He says: "I cannot apprehend the reason of his (Mr. Butler's) distinction between a fee limited to continue to a particular period at its creation, which curtesy or dower may survive, and the devise of a fee simple, or a fee tail, absolute or conditional, which, by subsequent words, is made determinable upon some particular event, at the happening of which curtesy or dower will also cease." He propounds, and in effect answers, the following pertinent inquiry, "How to reconcile to any system of reason, technical or natural, the existence of a derivative estate, after the extinction of that from which it was derived, was for him (Mr. Butler) to show; and he has not done it."
Any attempt to maintain a distinction between the claim of dower or curtesy, when the inheritance in an estate tail has failed, and a limitation over has taken effect, per formam doni, and the same result when an estate in fee has been determined by the happening of the event upon which a conditional limitation over was made to take effect, by the terms of the instrument creating the title, is too artificial and technical to command our assent. Dower is a derivative estate; it is derived from the estate of the husband. It is the creature of the law, not of contract. While the husband lives, there is no estate in dower. It is an interest, carved out of, or abstracted from the inheritance; or out of the estate of the husband's alienee, if the widow survives, and has not relinquished her dower. The husband, by any conveyance made, or recovery suffered by him, cannot bar, or impair her right.
When, however, by the very terms of the conveyance or devise, legal in form and purpose, the estate of the husband expires with him, cutting off per formam doni, the heritable quality of his estate, and the title passes to another as purchaser by a valid limitation over, the primitive estate is gone, and there is nothing left from which dower can be derived. We do not declare what would be the result, if the case were one of mere reversion to the demisor or grantor. It will be time enough to consider that question when it arises. Decree affirmed.
(d.) Dower in equitable estates of inheritance.
42 New Hampshire, 296. - 1861.
Suit for dower in certain premises. It is admitted that plaintiff is entitled to dower in one-fifth of the premises, but she claims dower in all.
Hopkinson, plaintiff's husband, and four others agreed to unite in the purchase of the premises in question, each to take a fifth. The deed was made to Hopkinson and he gave his notes (the other four joining as sureties) for part of the purchase price. One thousand dollars was paid down, each contributing his share, and Hopkinson gave a receipt for the same, acknowledging the trust.
Later on Hopkinson made an arrangement for the purchase of the interests of the other four, giving a mortgage for the purchase price. This mortgage has been foreclosed and defendant makes title under the foreclosure. Mrs. Hopkinson has never released her interest in the land. The questions of law were reserved for this court.
Sargent, J. - * * * We see no objection on this proof, to holding that there was, in this case, prior to the giving of the receipt by Hopkinson, and that there would have been, without any such receipt, a resulting trust to each of those who signed the notes as sureties. Our statute provides that "no trust concerning lands, excepting such as may arise or result by implication of law, shall be created or declared, unless by an instrument signed by the party creating the same, or by his attorney." Rev. Stat. ch. 130, § 13; Comp. Laws, 290.
But although a trust cannot be created or declared by parol evidence yet a resulting trust may be shown by that kind of proof; it may be proved, rebutted, or discharged by parol evidence. Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Page v. Page, 8 N. H. 187; Brooks v. Fowle, 14 N. H. 248; Pembroke v. Allenstown, 21 N. H. 107; Gove v. Lawrence, 26 N. H. 484; Tebbetts v. Felton, 31 N. H. 273. Parol evidence is admissible to show a resulting trust, but not to show any other. Farrington v. Barr, 36 N H. 86; Moore v. Moore, 38 N. H. 382.
So that if there were no trust declared in the case in writing, there would seem to be no difficulty in holding that a trust upon the facts stated, resulted by operation of law. But we think that this is not perhaps the more correct view to take of the case. Here is a trust declared in writing, which, although dated after the date of the deed, evidently contains the agreement and understanding of the parties, not only at the time of its date, but also at the date of the deed, and we think this written declaration of the trust should be and must be considered as part of the original transaction, and that the giving of the deed, the agreements and the giving of this writing should be considered together, as one transaction, as the different parts of the same contract and agreement.