But the court held otherwise, deciding that the legal estate was the better title, and that the equitable title was merged the moment the two became united in the same person; that the legal drew after it the equitable estate, and that the latter was lost in the former; so that, upon the death of the son, the person in whom both estates had been united, the estate did not again open, and that the trust could not again be revived.

Lord Mansfield, in delivering his opinion in the case, says: "For the moment both [estates] meet in one person, there is an end of the trust. He has the legal estate, and all the profits, by his best title. A man cannot be a trustee for himself. Why should the estates open upon his death? What equity has one set of heirs more than another? He may dispose of the whole as he pleases, and if he does not, there is no room for chancery to interpose, and the rule of law must prevail." And he seems to conclude that the weight of opinion and argument is, that the legal estate must draw the trust after it.

In the same case, Ashurst, J., says that "where the trust and legal estates join, they shall both go according to the legal estate." Buller, J., also says, that, "in a court of equity it has never been determined that an heir of one sort can hold as trustee for an heir of another sort. And if the question be tried in a court of law, the principle that, where two titles unite, the party shall be in of the best, prevails, and the clear fee simple estate, the legal interest, which descends from the mother is the better title. The trust, in this case, was merged and gone." The same principle was sustained in Doe v. Patt, Douglass, 684, and afterwards by Lord Thurlow, in Wade v. Paget, 1 Brown, C. C. 364; Phillips v. Bridges, 3 Ves. 126; Selby v. Alston, 3 Ves. 339; Nicholson v. Halsey, 1 Johns. Ch. 417; Gardner v. Astor, 3 Johns. Ch. 53; Hill on Real Prop. ch.

24, § 27.

Upon the principle deduced from these authorities, it would seem evident that, when the two estates were united in the plaintiff's hus band, the trust estate became at once merged and lost. It was consolidated into, overshadowed by, and swallowed up in the legal estate. The law of the legal estate regulates and governs its descent and distribution, and dower must be taken by the same law.

We have considered the question as though here had been originally a trust estate, created by deed and appearing of record; and coming to the conclusion we have upon that supposition, it becomes unnecessary to inquire farther into the defendant's case, because the facts assumed by us above are at least as favorable to the defendant as any that can be made out of the agreed case, and might be found to be much more so upon investigation, though on that subject we express no opinion. And the above authorities would seem to be decisive, also, of the defendant's rights - in fact, of the rights of both parties - not only at law, but also in equity. We are therefore of opinion that the plaintiff must prevail in her claim for dower in the whole of the premises described in her declaration; and judgment must be rendered for the plaintiff accordingly, and for damages for detention, to be fixed according to the provisions of the case.

(e.) Dower in "wild lands.

Schnebly V. Schnebly

26 Illinois, 116. - 1861.

Petition by the heirs-at-law of Henry Schnebly to have his widow's dower assigned to her. There were ten separate parcels of land of all which the widow was entitled to be endowed. This is a writ of error by the petitioners to review a judgment approving the report of the commissioners.

Walker, J. - The commissioners appointed by, and acting under the decree of the court, assigned to the widow as her dower in the various tracts embraced in the decree, the E. 1-2 N. W. 27, 9 N. 8 E., and S8 acres on the west side, part of the northeast quarter of the same section. These premises included the residence and homestead of the husband in his lifetime. They also report that premises thus allotted are one-third in value of all the lands with perfect title, having reference to the quantity and quality. It is urged by plaintiffs in error, as one of the grounds of reversal, that wild, unimproved and unproductive lands are not, under our statute, subject to dower. The first section of the dower act provides that "a widow shall be endowed of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form."

By this provision it is the character of the title, or rather the nature of the estate held in the land, which determines the right. It is not the accidental condition of the property which controls, but the interest or extent of the title. The Legislature has not declared that the widow shall be endowed of all improved or productive real estate of which the husband was seized during the marriage, but it is of all the lands of which he was seized of an estate of inheritance. And in making this provision, the general assembly have no more than declared the common law. It is true that in giving dower in equitable estates and in land purchased by the husband in his lifetime, and not paid for until after his death, the right has been enlarged; but as such estates are not involved in this case, there is no occasion for their discussion.

There seem to be obvious reasons for the enactment. After the assignment of dower, the widow may undeniably use and enjoy the portion allotted to her in any mode she may choose, provided she shall not commit waste. She may reclaim lands that have been once cultivated and abandoned; she may reduce prairie land to cultivation, and may pasture timber land. And no one will deny that by that means she may derive profit without committing waste. These are doubtless sufficient considerations for the enactment. But be that as it may, we have no hesitation in saying that the Legislature designed to give, and has given the widow dower in unimproved as well as in improved lands, of which the husband was seized of an estate of inheritance during the marriage.