The trust declared in the writing is evidently the same that had existed prior to its date, and includes evidently the full agreement that was made originally, that all the time continued to exist between the parties until the new arrangement by which Hopkinson bought the others out and gave back a mortgage of the premises to them as their securities. Taking the deed to Hopkinson and the money paid, the notes given and the writing given back to them declaring the trust, as parts of the same transaction and as containing the whole of the arrangement between them, from the beginning, we are left in no doubt about the rights of the parties so far. And the only remaining question is, the one arising out of the sale to Hopkinson, and the mortgage back of the same premises, on the 13th day of May, 1857.
We do not understand that there is any question made but what the arrangement then made was such that whatever interest was conveyed to Hopkinson by the others, was at the same time recon-veyed by him to them in mortgage. His seizin of such interest as they conveyed was but instantaneous. To be sure they gave him no deed of any right, nor did they need to do so. He had the legal title before. Theirs was the equitable, the trust estate, which did not appear of record, and which would have been unavailable to them as against a creditor of or a purchaser from said Hopkinson, without notice of the existence of such estate.
It is claimed that this written agreement does not create a trust estate in the lands; that it gives only certain equitable rights, but no present estate, so that a court of equity, upon an application of the cestuis que trust, could not have decreed a conveyance of the legal title, except upon the performance of certain conditions precedent, to be performed by themselves. But without considering or discussing that point, and without stopping here to inquire what difference there would be, if any, between the trust here created and a trust estate created by deed and appearing of record, let us, for the purposes of this case, assume that Coffin and the others had a present equitable estate in the premises, just the same as though the deed which conveyed the premises to Hopkinson had declared the trust and given to Coffin and others an equitable estate which appeared of record, and that the equitable estate had been conveyed to Hopkinson by deed at the time when the mortgage was given back by him.
Upon this supposition, the question that arises is, where the legal and equitable estates meet in the same person, but by different conveyances, at different times, and he thereby becomes seized in fee of the whole estate, which estate merges in the other, and which draws the other after it? Does the equitable estate merge in the legal and the title in fee to the whole relate back to and date from the commencement of the legal estate? If this be so, then the plaintiff takes dower in the whole premises. But, if the opposite doctrine be true, that the legal title merges in the equitable, on becoming united in the same person, and his title in fee relates back only to and dates from the commencement of his equitable interest, then this plaintiff does not take dower in any but her husband's one-fifth part of the premises, because his seizin upon the hypothesis was only instantaneous. It becomes necessary to ascertain which of these estates is to control the other, when they become united, in order to see which of them dower shall follow; because, at common law, which is the law of this State in this particular, dower could not be taken in either estate alone.
A widow of a trustee shall not have dower. Robinson v. Codman, 1 Sum. 121; Germond v. Jones, 2 Hill, 569; Cooper v. Whitney, 3 Hill, 101; Coster v. Lorillard, 14 Wend. 314. In England there is at law no dower in a trust estate, whether the husband have himself parted with the legal title before marriage, reserving only a trust, or whether a trust estate has been directly limited to him by a third person. And the same rule applies where the husband purchases an estate in the name of a trustee who acknowledges the trust after his death. Ray v. Pung, 5 B. & Aid. 561; 2 Bl. Com. 337; 1 Hill on Real Prop. 323. So that, so long as the legal and equitable estates remained separate, no dower could be claimed, and no inchoate right of dower could be acquired on either side.
But where both estates are united in one person, one must merge in the other, because a man cannot be trustee for himself. In Good right v. Wells, Douglass, 741, the question arose as to whether, in a case of this kind, "the equity should follow the law or draw the law after it." It was a case in which an only child inherited the legal estate in lands from his mother, and the equitable estate from his father; and, dying without issue, the estate was claimed on the one side by his legal heirs ex parte materna, and on the other side by those ex parte paterna; and it was held that the equitable estate should merge in the legal and that both should follow the line through which the legal estate descended; the whole property in that case going to the heirs on the part of the mother.
It was there learnedly argued that, before the statute of uses the use was considered, in most respects, as the complete ownership of the land, that the estate of the feoffee was subservient to the cestu que use, and that the former could do nothing to defeat the interes of the latter, unless by alienation for a valuable consideration without notice; that the statute of uses completed this subserviency by consolidating the legal estate with the use, or by merging the legal estate in the equitable; and that by analogy to uses thus considered, trust estates had been and should be held to be the solid and substantial ownership of the land, and the trustee the mere instrument of conveyance; that where a party holds by two titles, the law considers him as taking by the best; that the trust estate, being the best, must control the legal estate.