
    SARAH YEO, DEMANDANT v. MERCEREAU.
    In Dower.
    1. Under the act relative to dower, Uev. Laws, 397, the widow is entitled to dower of all lands &c. whereof any person was seized, of an estate of inheritance, at any time during coverture, to the use of the husband, if in equity the husband was the real owner of the land, and had a right at any time, to have a conveyance to himself of the legal title and estate in possession.
    2. The children, born in this country, of an alien, who purchased while he was an alien enemy, before the 22d of January, 1817, and continued to hold after that period and after he became an alien friend, may inherit his estate by force of the second section of the act of that date concerning aliens: and,
    Consequently his widow may, have dower.
    
      W L. Dayton and 0. 8. Hoisted for demandant.
    
      A. O. M. Pennington and I. IT. Williamson for defendant.
   Ilonisblower, C. J.

The demandant who was.a native of this country, was married here, to James Yeo, a British subject, in the year 1808. On the 14th May, 1813, when Great Britain and this country were at war, Tunis Covert, in consideration of eight hundred and six dollars, conveyed the premises of which dower is demanded in this action, to Joseph T. Baldwin, in fee, “ in trust to and for the use, proper benefit and be-hoof of James Yeo, his heirs, executors, administrators and assigns;” in which deed the premises are described, as then in the actual possession of the said James Yeo. On the 24th May, 1814, Baldwin, for the same consideration, conveyed the premises to Thomas Parcell, in fee; upon precisely the same trust, and expressed in the same words, as in the deed from Covert to Baldwin. On the 26th November, 1814, Parcell executed a writing under his hand and seal, in which, after reciting the conveyance to him in trust, as aforesaid, he covenanted with Yeo, to convey the premises, at any time thereafter, at the request and costs of Yeo, his heirs and assigns, to him or them free and clear of all incumbrances &c. On the 6th June, 1815, Parcell by deed, in consideration of one thousand dollars, and after reciting the conveyance to him in trust, and the aforesaid covenant made by him to Yeo, and after stating, that it was done at the request of Yeo, and that the said consideration money had been paid to him by Ephraim Leonard, “for and on account of” said Yeo, conveyed the premises to said Leonard, in fee. Under this deed Leonard took possession; Yeo having continued in possession up to that time, which was several months after peace had been declared between this country and Great Britain. On the 28th January, 1823, Leonard, in consideration of two thousand and eighty dollars, conveyed the premises, in fee to Mercereau, the defendant. Yeo, died in the year 1829, without ever having been naturalized, and left surviving him, two children by his wife, the demandant in this cause, who were born in this country. Upon these facts, so far as her right to recover dower in the premises, depended, the demandant rested. It may be added however, that the demandant proved, that the defendant, at the time he purchased of Leonard, had notice of her claim of dower, and retained in his hands six hundred dollars of the purchase money, as an indemnity against her claim. She also gave evidence of the annual value of the premises ; and a demand of dower in writing on the 30th of July, 1831.

The defendant gave in evidence a deed, dated 29th May, 1815, acknowledged the 3d of June, 1815, and recorded the 12th of the same month, from Parcell, for the premises in question, to Leonard, in fee, with full covenants of warranty, and without any recital of, or reference to any trust whatever. Also, a mortgage, dated 13th August, 1814, acknowledged the 10th September, 1814, and recorded the 30th May, 1815, from Par-cell and wife .to Covert, to secure the sum of three hundred and eighty two dollars and fourteen cents, with interest on a certain day, according to the condition of a bond given by Parcell and Yeo, to Covert, which mortgage makes no mention of any trust, and has since the day of payment, been cancelled of record.

Why two deeds were given by Parcell to Leonard ; one reciting the trust &c. and the other not, I do not know; but I do not perceive that that circumstance, can have any influence on the real questions in this cause.

Two leading questions were made by counsel on the argument, viz:

I. Whether under our statute relative to dower, a widow is entitled to and can recover dower, at law,- of lands held by another, in trust, for her husband and his heirs ?

II. Whether the widow of an alien, who purchased, while an alien enemy ; but continued to possess and enjoy the estate, after he became an alien friend, can have dower ?

Our statute, Rev. Laws 397 ; Eira. Dig. 143, seo. 1, is as follows : “ the widow, whether alien or not, of any person dying intestate, or otherwise, shall be endowed &o. of all the lands, tenements and other real estate, whereof her husband, or any other to his use, was seized of an estate of inheritance, at any time during coverture, to which she shall not have relinquished or released her right of dower, by deed &c.”

The question arises, on the words, “ or any other to his use : ” and the only case, in which the meaning of those words, has been drawn into discussion, is that of Montgomery v. Brucre, 1 South. R. 260.

In that ease, two principal questions arose: First, a question of fact; whether the defendant held under and stood in the place of the mortgagee ? And secondly, a question of law; whether the legal seizin of mortgaged premises, is in the mortgagee, or mortgagor, while the mortgage is outstanding and unsatisfied ? In other words, whether the husband of the demandant, who had mortgaged the premises, before his intermarriage with her, was ever so seized at any time during coverture, as to entitle her to dower of the mortgaged premises ?

Upon the facts of the case, the Chief Justice and Mr. Justice Russell, were of opinion, that the defendant held under the mortgage, and that consequently, the widow under any circumstances, could not have dower, without offering to redeem pro tanto. And as to the question of law, upon the supposition, that the defendant was not clothed with the rights of the mortgagee, they were of opinion, that the husband had never been so seized after the coverture, as to entitle her to dower. On the other hand Mr. Justice Southard was of opinion, that the defendant did not hold under the mortgage; and that therefore the widow was entitled to dower, notwithstanding the mortgage had been given prior to her marriage : upon the ground, that the legal seizin remained in the mortgagor.

This opinion of Mr. Justice Southard, was afterwards sustained by the court of Appeals, 2 South. R. 865, a result, with whien this court expressed its satisfaction in Woodhull v. Reid, 1 Harr. R. 128. But I do not consider that that decision, necessarily involved the discussion, or at all depended upon the construction of our statute relative to dower. If Justice Southard was right, as I. have no doubt he was, in stating that the interest of the mortgagee is a mere incumbrance, or security ; and that the legal estate remains in the mortgagor, then the widow, is entitled to dower, not under the words of our statute, nor by reason of any equitable rights of the husband ; nor because the mortgagee is seized to his use: but upon the broad, legal ground, that the husband continues at law, to be the real owner and remains seized of the mortgaged premises, as against all the world, except the mortgagee, and those claiming under him.

There is no similarity between an equity of redemption, and a trust estate. An equity of redemption, it is true, is an equitable right or estate; but it is a right, in equity to relieve the land from the incumbrance, and to be restored to the possession and enjoyment of it, in fee. But a irusl, .is not an estate in land. It is no matter where the legal title is, or who is seized of the land: it is an estate, out of laud : existing only, in foro conseientice, and which can be reached, recovered, protected and dealt with, only in a court of equity. And yet, it is real estate; an estate of inheritance, of which the owner may be seized, in law or fact; and therefore, if within the reach of our process, as much, upon principle, the subject of dower, as any other real estate. But our process will not touch it: we cannot admeasure it, and set it off by metes and bounds. We cannot put the widow in possession, by any writ known to our court.

Whether the creation of trusts, as distinguished from uses, was wise or unwise : whether it has had, or has now, under our institutions a baneful or salutary influence, it is not for us to decide. We cannot by judicial decisions, legislate the distinction out of existence, and reduce all trusts to mere legal estates in possession.

But the question recurs: what did the legislature mean by the words, “ or any other to his use ? After the most serious reflection, I cannot adopt the suggestion of Chief Justice Kirkpatrick, in Montgomery v. Bruere. I cannot believe that those words refer to the bargainer, as the person seized. It is true, there is a difference between the language of our statute of uses, Elm. Dig. 80, pl. 3, and the statute of 27 Hen. 8. But they are so substantially the same, and their design so identical, that we are not called upon to give them different constructions. And when we reflect, that our judicial records, furnish us with no case, in which the widow’s right of dower, was ever questioned, under our statute for transferring uses into possession, I cannot suppose those words were inserted to remove any doubt or difficulty on that point. Yeither can I presuade myself, that the words, “ or any other to his use ” were inserted merely for the purpose of giving a widow dower of a pure technical trust estate. The dower given by the statute, is dower of the land/ not of the trust or use. It is dower of a legal, not of an equitable estate ; and it is to be recovered in a court of law, and by legal process ; for, the second section says, until such dower, be assigned to her, she may remain in and hold and enjoy the mansion house &c.” This, as well as other provisions of the statute, shows most clearly, that the legislature had in contemplation only such dower, as might be assigned to her by the heir or devisee. The cestui que trust cannot enter upon the land, turn the trustee out of possession and set off to the widow, one-third of the land.

Again, if she is to recover the actual possession of the lands which were held in trust for her husband and his heirs, who is to be the tenant to the precipe ? The trustee, or the cestiá que trust f And what is to be the form of the writ, in sueh ease ? These are questions that must be answered; if we decide, that a widow is to be endowed of the lands. And more than this; the death of the husband, must defeat and put an end to the object of the trust. It must throw it into confusion, and be destructive of the rights and interests of all the cestuis que trust. The premises may be of such a nature, that giving the widow the actual possession of one-third part of it, may render the residue entirely valueless and unproductive to the cestui que trust. In short, such a construction of the statute, amounts to an abolition of all trusts, and turns them into legal estates in possession. If it had been the intention of the penman of the statute to place dower on the same footing as curtesy, in relation to trusts, would he not have used more appropriate language, by saying that a widow should be endowed of a trust, in all eases, where the husband had such an estate in the trust, as would have entitled her to dower in the land, if the estate of her husband had been a legal instead of an equitable one. A provision to that effect would have placed curtesy and dower upon the same footing, and the widow entitled to dower of a trust, would have had her appropriate remedy, as the husband has for his curtesy, in the court of Chancery.

Nevertheless, the words “or any other to his use,” must have been inserted for some purpose. At any rate, we are not allowed to reject them as surplusage or unmeaning, so long as they are susceptible of any intelligent construction. If we were at liberty to suppose that this section of the act, was the work of an unprofessional pen, we might easily account for the insertion of the words, by imagining the author ignorant of the existence and influence of the statute for transferring uses into possession. But such a speculation is neither proper nor necessary in this instance. In my opinion, those words were introduced with great propriety and are useful and operative words in the connection in which they stand.

In the first place, if at the time of passing the statute, there was, or is now, any doubt who is seized of the legal estate, the mortgagor or mortgagee, so as to render the widow’s right to dower in mortgaged premises, at all questionable, this statute settles and puts an end to that question. For if the seizin is in the mortgagee, he is clearly seized to the use of the mortgagor ; for the rents and profits go to his benefit, by extinguishing the debt; and when that is satisfied, the seizin and possession reverts to him. These words, in the statute would therefore, settle the widow’s right to dower in such a case, if any doubt on that point remained.

Again, in general terms, why may not those words have been inserted for the express purpose of giving the widow dower of the lands, in all cases where any person is so seized to the use of the husband, as in equity, would entitle him to the legal estate and the actual possession and seizin of the land itself: in other words, wherever the husband is the true and real owner in equity of the land itself. Such cases may exist. For instance, upon a covenant to stand seized to the use of the husband and to convey &c. upon request. Or again, suppose the husband makes a purchase and pays the money, but dies before he gets a conveyance: or suppose another person buys land with the husband’s money and for him, but takes a deed to himself in fee: in either case the husband is the true owner of the land. The vendor in the first case, and the agent or purchaser, in the other, stands seized to the use of the husband; and in equity he is entitled to a conveyance in fee. If before such conveyance made, or pending a bill to obtain one, the husband should die; why should not his widow have dower of such lands ? I see no reason why she should not; and in my opinion, the words, “ or any other to his use,” were inserted to reach just such cases; and all others, if any exist, in which another is seized of lands during coverture, to the use of the husband, under such circumstances, as in equity entitles the husband, or his heirs, to a conveyance of a legal estate and the actual seizin and possession of the land.

This satisfies the words of the statute, and I cannot carry them so far as to give the widow dower at law, of a purely equitable estate out of lands, of which lands, her husband never had, and never could have, seizin in law or in deed. If such had been the design of the legislature, I think they would have used more appropriate words; and would at leasPhave placed the husband’s curtesy on the same footing; and given him the possession of the land itself, instead of leaving him to the mere equitable remedy and estate.

Who then was the real owner of the land in question ? We cannot doubt upon the facts stated, that really and in truth it always belonged to the husband : that he bought and paid for it with his own money; and, as a matter of caution, he being at that time an alien enemy, had it conveyed to Mr. Baldwin for his use. In 1814, Parcell executed a covenant with Yeo, to convey to him, his heirs and assigns, upon request. This was equal to a covenant to stand seized, &c. In June, 1815, after the peace, Parcell conveyed the premises in fee, discharged of the trust, to Leonard, under whom the defendant holds : and in that deed Parcell recites the trust under which he held the property: that he had covenanted to convey it to Yeo, his heirs or assigns, upon his or their request: and that it was at Yeo’s request, and upon receipt of the consideration money “ for the use and on account of Yeo,” that he conveyed the premises in fee to Leonard. Leonard was then, in truth and in fact, the assignee of Yeo, and held under him; and of this deed and its contents, which was on record, the defendant must be considered as having notice. He purchased, then, of Leonard, with notice that Leonard was, in reality, and according to the substance of the transaction, though not in form, the grantee in fee of Yeo.

In Bernard v. Warren, 3 Green’s R. 447, in this court, it was held, that a man who had purchased the land, paid for it, ta'ken possession and used, it, was the real owner, and so seized of a freehold in .it as to giye him a settlement, although at the time of the purchase, he had caused the legal title to be conveyed to a friend, in trust for himself and his wife, during their joint lives, and after the death of the survivor of them, to their children in fee. So in this case, Parcell was the-naked depository of the title for Yeo, and bound by his covenant to convey it to him upon request. He was.seized during the coverture, to the use of Yeo, of land, which Yeo had a right to the title and possession of as owner in fee. It is, then, a case within the very words of the statute, and, in my opinion, j ust such a case as the statute was intended to provide *for.

The defendant having purchased with full notice of the history of the title, apprised, as appears by the state of the case, of the demandant’s claim to dower, and having withheld a large portion of the purchase money, as an indemnity against that claim, ought not now to be permitted to deny the husband’s right to the land, any more than he would be to deny hip seizin, if he had received his deed directly from the husband himself.

The defendant either holds the land discharged of the trust, or subject to it. If the former, then he holds it under Yeo. If he does not, it may be worth his while, and that of his counsel, to consider whether he may not be called upon to account for the rents and profits to the cestui que trust.

It only remains to enquire, whether the alienage of her husband is any bar.to the demandant’s recovery.

Some, attempt was made, by counsel for the demandant, to avoid this objection, by suggesting that our statute does not require that, the estate must be such, as any issue the wife may have, mays by possibility inherit: that it only requires that the estate must, in its quantity.and quality, be of an inheritable nature. This suggestion, however, is based upon the mistaken idea that the statute has repealed the common law definition .of dower. and introduced an entirely new rule upon the subject: that it is res integra, and is to be construed as if it was a statute creating a new right, and giving a new remedy. If this is true, and we are to settle the import of its enactments, irrespective of any preexisting rules of law upon the subject, — as if dower was created by this statute, and now given for the first time, — it will lead us to very extraordinary results: such, indeed, as would be astounding to the profession and the community. The words of the act would give dower of every estate of inheritance of which the husband was seized during coverture, although the issue of the wife could not by any possibility be heir. It would give dower of an estate in special tail, after possibility of issue extinct. It would give dower notwithstanding an ante-nuptial arrangement by settlement or jointure. It would give dower, perhaps, to the widow of the mortgagee, as well as of the mortgagor : nay, it would give dower to the widow of the trustee himself, as well as to the widow of the cestui que use, or cestui que trust, for the trustee is certainly seized of an estate of inheritance, and thus the widow of the trustee and of the cestui que trust, would both have dower. In short, I see no end to the difficulties that would result from an attempt to treat this statute as one abolishing the common law doctrine of dower, and introducing a new rule upon the subject. But in the construction of statutes, we must take words and phrases in the sense in which they are usually understood in the law, when applied and used in reference to the subject about which and to which the statute relates — a departure from this rule would involve us in inexplicable difficulties. If, for instance, the words “ for the term of her natural life, of the one full and equal third part ” had been omitted, in this statute, we should not have felt bound to give the widow the whole land, nor more than a life estate. We must have sought the meaning of the statute by enquiring at the common law the meaning of the word dower.

In reverting then, to the question, whether the alienage of the demandant’s husband is not a bar to her recovery of dower, I do not think it necessary to notice the very numerous cases and authorities, which counsel with great industry and ¿research, cited on the argument. The answer to the question must, it seems to me, depend upon the construction of our act concerning aliens, passed the 22d January, 1817, Elm. Dig. 6.

The first section of the act of 1817, declares it shall be lawful for any alien, not the subject of any power at war, at the time of the purchase, with the United States, to purchase lands &c. and to have and hold the same to him, his heirs and assigns forever, as fully to all intents and purposes, as any natural born citizen of the United States may or can do. This section, per se, has clearly no effect upon the case, since the purchase was made before the act was passed. But the second section drops the distinction between an alien enemy and an alien friend, and declares that, all purchases made by “ aliens ” before the passing of that act, shall be deemed and held as good and effectual, to all intents and purposes as if the same had been made after the passing thereof.

Now, though a rigid adherence to the rule of the common law in relation to aliens; and perhaps too, a strict and critical construction of this act might justify us in saying, that the aliens referred to in the second section, must be restrained to mean alien friends; since alien enemies could not purchase after the statute, so as to hold to them, their heirs and assigns: yet it is more reasonable and consistent with the spirit of the times and the general policy of our State, to suppose, that by that statute, which was passed in a time of peace, the legislature intended to quiet and confirm all purchases that had theretofore been made by aliens of any description. I am the more inclined to this opinion from the incongruity that must result from a different construction of the act: for, by forcé of the first section, if an alien friend purchases to-day, and to-morrow becomes an alien enemy: continues so for years, and should even die in the ranks of the enemy; yet his children may inherit: Whereas, if the saving effect of the second section is not to be extended to prior purchases by alien enemies ; then it follows, that all purchases by such aliens, before the passing of the act, although they soon after became and continue to be alien friends, remain as at common law, liable to be defeated by office found, and their estates not transmissible by descent to their children. Nay, I do not perceive that; a subsequent citizenship conferred upon the purchaser, if he purchased while an alien enemy, could relieve, him from his disability of transmitting his estate to his children by descent.

It is true, the legislature had power to make such an unequal enactment, if they thought proper. But it seems to be without reason and decidedly adverse to the enlightened and liberal policy of the age in which wre live, and we ought not to give such an odious construction to the statute, unless constrained to do so by its terms or manifest meaning.

The injustice of such a distinction will appear more striking, when we remember that, prior to the statute of 1817, alien friends and alien enemies, so far as respected their right to purchase, hold, sell and devise, until office found, stood precisely upon the same footing. The case of Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 619, 620, 621, shows that, at the common law, there was no difference between alien friends and enemies, in respect to their right to purchase and hold real estate until office found. Why, then, should the legislature say to alien friends, who bad purchased prior to 1817, you may hold and transmit your lands by descent to your children, although you may now be alien enemies ; but to such as purchased while they were alien enemies, your children shall not inherit your, lands, although you are now alien friends. And yet such will be the language in the operation of the act of 1817, if we limit the construction of the second section to the relief only of such previous purchasers, as were alien friends at the time of their purchase.

May we not fairly understand the meaning of the second section to be, that all purchases made by aliens, whether friends or enemies, previous to the passage of that act, should stand upon the same footing, as if they had been made under legislative sanction ? The act was passed in a time of peace, and such a construction would be, so far as I can perceive, consistent with the intention of the legislature. If any alien enemy has purchased since the act, he has done it, or if he hereafter purchases while the act is in force, he will do it with his eyes open ; and, with notice, that if he continues to hold, after he becomes an alien friend, and dies while he is such, he cannot transmit his estate by inheritance to his children. Whether even this restriction is wise or liberal, may be questionable, but it is not our province to decide.

Upon the whole, I am of opinion that if Yeo had died intestate, the owner of this land, his children, under a just and proper construction of the second section of the act of 1817, might have taken the lands by descent, and consequently that the widow is entitled to dower.

White, J. and Elmer, J.

concurred.

The state of the case being set out in the preceding opinion of the Chief Justice, it is deemed unnecessary to repeat it here, although annexed to and connected with the following opinion of

Nevius, J. It is submitted, that if, in the opinion of this court, the demandant upon these facts, is entitled to dower, judgment shall be entered on the postea for her, otherwise the verdict to be set aside with costs.

The first question which presents itself for our consideration, is, what estate or interest James Yeo, the demandant’s husband, had in these premises, by virtue of the several conveyances, or any of them, above mentioned ?

I will at present consider this question without reference to any supposed disability in ‘him to hold lands, arising from his being an alien.

The deed from Covert and wife, in 1813, to Baldwin, vested in Yeo a beneficial or equitable estate or interest in the lands, denominated a trust, whilst it conveyed, at the same time, to Baldwin, the legal estate in fee simple. This equitable estate was not limited to Yeo personally, but was an estate of inheritance in fee simple, being to him and his heirs and assigns. The equitable was made co-extensive with the legal estate. The deed from Baldwin to Parcell, in 1814, conveyed the legal estate, subject to the same equitable interest in Yeo, as it before was vested in him. In November, 1814, Parcel], by covenant, gave to Yeo the control of the legal estate, and covenanted to convey it to him, or to such person as he might appoint. This declaration of trust was acknowledged on the 5th, and recorded on the 10th of June, 1815; and on the 6th of the same month of June, Parcell and wife conveyed the premises in fee simple to Leonard, and in his deed of conveyance, recited the deed from Baldwin, the declaration of trust by himself, and that Yeo had requested this conveyance to be made for his own benefit; and that Leonard had paid the consideration money on his (Yeo’s) account. This deed was recorded on the same day with the declaration of trust, and two days before the deed from Parcell and wife to Leonard, which did not, on its face, contain the trust. Apart, then, from the conveyance of these premises, during the time that James Yeo may be esteemed an alien enemy, we have a regular and legal conveyance of a legal estate of inheritance in these lands, made to a third person for his benefit, at his request, and on his payment of the consideration money. If, by the laws of this state, such a conveyance can be made and legally sustained, then James Yeo, by the grant to Leonard in 1815, became entitled to an equitable interest in these lands, when he was no longer an alien enemy.

What is this equitable or beneficial estate to be termed — a use or a trust ? or is there now, or was there ever, any real and substantial difference between them ? The importance of a correct answer to this question, will be seen by reference to our statute relative to dower, upon the true construction of which, tne demandant’s right will greatly depend. That statute enacts that “ the widow, whether alien or not, shall be entitled to dower in any lands of which her husband, or any other person to Ms use, was seized of an estate of inheritance during the coverture.” The grant from Parcel! to Leonard, in 1815, taken in connection with the declaration of trust, was in trust for Yeo and his heirs, for his and their benefit, subject to his and their control and authority, and, by virtue of that declaration, Yeo became entitled, whenever he saw fit to demand it, to the actual possession and enjoyment of the land itself. This was a condition annexed to the legal title, running with the land, and duly recorded ; consequently Leonard, who was the grantee of Parcell, with full notice of this trust, held his title subject to it in the same way that Par-cell did before his grant. Yeo had the highest estate in these lauds, which by possibility he could have, separate from the legal title, for he had the whole beneficial interest, with the power to connect the legal estate and possession with it, whenever he saw fit to do so. I repeat, therefore, the question, was he, in respect to these lands, a cestui que use or a cestui que trust f or was he not, in fact, both ? Can any difference between the two be pointed out, except in the arbitrary decisions of courts, which, at an early period after the passage of the statute of uses, were made to avoid the operation of that statute. Can any one show a substantial difference between a conveyance of land to A., to be held by him and his heirs forever, for the use of B. and his heirs, and of a like conveyance to A. and his heirs, to be held in trust for B. and his heirs ? I speak now of a conveyance before the statute, when a use and a trust were esteemed convertible terms. Since the statute of uses, it is true, they have been considered different things, and as expressing different interests and different estates. 1 South. 265. The statute did not change the original meaning of the terms, but to avoid its operation, and to keep separate the legal estate, from the use or equitable interest, the court in its construction, adopted an arbitrary distinction between a first and second use, limited in the same deed; the former they declared executed by being annexed to the possession under the operation of the statute, whilst they determined that the latter was beyond its operation; and to avoid the apparent absurdity of such construction, they called this latter use a trust. Its nature and character remained the same, though its name was changed. 2 Blao. 336. By this refinement, a trust was understood to be a use unexecuted by the statute, whilst the use itself was abolished by its connection with the legal estate. At common law, a deed of bargain and sale, by the owner of lands, though for a valuable consideration, if unaccompanied with livery of seizin, only raised a use in the bargainee; and the statute transferred the use to the possession, thereby vesting in the bargainee a complete title, without formal livery of seizin. To defeat this provision, a second use was created, which the courts declared unexecuted by this statute, and such second use still remained as at common law.

The statute of New-Jersey, upon this subject, differs in its phraseology from the act of Parliament, yet I apprehend the difference is verbal and not substantial. The latter enacts that “ the person to whom the use is granted, &e., shall stand and be seized, deemed and adjudged in lawful seizin and possession; ” while the former provides that he shall be deemed in as full possession as if he were possessed thereof by solemn livery of seizin.” These words are equivalent in their meaning, and as fully adapted to transfer the possession to the use, as those used in the British statute. The conveyance to Leonard, then, vested in Yeo an estate denominated a trust, or, in other words, a use unexecuted by the statute. It was to Leonard and his heirs and assigns, to have and to hold to his and their use in trust for Yeo, his heirs and assigns. The statute executed the use conveyed to Leonard, but not that use or trust which was created by the same deed in Yeo.

The next question presented is, whether this estate in Yeo is under our statute, subject to his wife’s dower, or whether it is an estate of which Leonard, or Parcel], or Baldwin was “seized to his use?” It is not necessary to consider the conveyance made by Parcel! to Leonard, and which was recorded on the 12th of June, 1815, and in which no mention is made of the trust, nor the other matters of subsequent date, which are set forth in the case, for they cannot affect the decision of this question. The estate of which a wife is endowable under our statute, must be an estate of inheritance, of which the husband was seized during the coverture, or of which any other person was seized to Ms use. The legal estate in Leonard was an estate of inheritance, and the equitable estate in Yeo was equally so. Was the latter such an estate as is embraced within the terms or meaning of the statute ? In the view taken of this subject by the Chief Justice, in the ease of Montgomery v. Bruere, above cited, he suggests “ that the legislature may have entertained a doubt whether a cestui que use, under our statute, for tranferring uses-into possession, was ‘ so seized ’ as to entitle his wife to dower, and that this clause was inserted to remove such doubtand concludes by remarking, that “ our act leaves the doctrine of dower where it stood at the common law, as altered by the statute of 27th Henry 8th.” This opinion, however, was not expressly concurred in by the other judges: Justice Southard expressly dissented. But as it did not become necessary to decide this question, in that case, it may still be considered as open, and unsettled in this state.

The high respect I entertain for the judicial character of the learned judge who expressed the opinion above quoted, would naturally lead me to adopt it even against serious doubts in my own mind of its correctness. But as my investigation has irresistibly led me to a different conclusion, I am constrained respectfully to dissent from that opinion. I cannot admit that, at the time of passing our act relative to dower, in 1799, a doubt could have existed in the mind of its learned penman, or in the legislature who passed it, that the wife of a bargainee of an estate of inheritance in lands, had a dower in such lands, or that the words “seized to Ms use” were inserted to obviate such doubt. For a long period antecedent to this, the wife’s right to dower in a use executed by the statute, had been esteemed as settled law; indeed, no ease is found where it was questioned. Andas the statute of uses had originated a new mode of conveyance, whereby the formality of livery of seizin was dispensed with, it would have followed, as a necessary consequence, that if the wife could not be endowed of such an estate, she could not be endowed at all; and that the statute of uses had a'ctually abolished dower. It is true that when uses at common law were, by the ingenuity of courts, saved from the operation of the statute, by changing their name and not their character, they were not subjected to dower, “more,” as Judge Blackstone observes, “from a cautious adherence to some hasty precedents, than from any well-grounded principle.” And it is fair to infer that it was rather to remedy the evil and injustice arising from these “ hasty precedents,” that the legislature introduced the words “seized to Ms use,” than to explain the statute of uses, which had always before been clearly understood. “ Seized of an estate of inheritance to the use of another,” is a phrase which, in 1799, could convey no other idea to a legal mind, than that the person so seized was seized of the legal estate in trust for another, to whom was limited the beneficial interest. This phrase could not be intended to apply to a use executed by the statute, for the statute had extinguished such use by vesting the full title in the cestui qiie use, in the same manner as if he “were possessed by solemn livery of seizin.” These words were used by the penman of that statute, in their ordinary and natural sense, and were intended to apply to estates held in trust, or, if you please, to a use unexecuted by the statute. If such were not the design of the legislature, the ■terms were idly used, for they can convey no other meaning. I am, therefore, of opinion, that the estate of James Yeo, in these lands, was and is subject to the demandant’s dower, unless barred by cause of his alienage. Does the alienage of the husband ■create such a bar ? The defendant contends that the wife is only endowable of lands of .which her husband was seized in fee simple or fee tail, or which any issue which she may have may by possibility be heir; and that, in the case before us, as no children of the demandant could by possibility be heir to these lands, as they could not inherit from their alien ancestor, she cannot consequently claim dower. Such was, in fact, the rule of the common law: and whether our statute, has changed the rule as to the inheritance in which a wife may be endowed, I deem it-unneeessary now to enquire. It speaks of estates of inheritance in general terms, without limiting the claim of dower to any particular kind of inheritance. But it is difficult to conceive of any other case in which a wife could claim dower in lands to which her issue might not be heir, than a case of inheritance in special tail, where a husband has married a second wife. Whether such wife, on the death of the husband, could, under our statute, be endowed of the lands so held by him in special tail, I will not determine, nor could' a decision on this point affect this case. For even if the rule of the common law has not been changed by statute, still I think the demandant entitled to dower, for her children can by possibility be heirs to this estate.

The statute, authorizing aliens to purchase and hold real estate, passed in 1817, provides that “ it shall be lawful for an alien friend to purchase lands within this state, and to have and to hold the same to him and his heirs and assigns, as fully and to all intents and purposes, as a natural born citizen may do.” And by the second section it is enacted, “that all purchases of lands within this state, which may have been made by aliens before the passing of the act, shall be deemed as good and effect-' ual as if the samo had been made after the passing of it.” This act was passed after the war with Great Britain had terminated, and from a careful examination of it, it would seem to have been the intention of the legislature not only to secure to alien friends the right to purchase and hold lands, but to settle and confirm the titles or purchasers before made by aliens, whether friends or enemies. For the second section does not limit such confirmation to purchases made by alien friends. The estate of Yeo, therefore, under the operation of this act, although an alien, became lawfully vested in him, whether it is to be esteemed as having its origin in the deed from Covert to Baldwin, in 1813, and. during the war, or resting in the grant from Paree:i to Leonard, in 1815, and after the war. No objection,.therefore, to the demandant’s claim, can arise from the fact that the original purchase was made when her husband was an alien enemy. But the question still recurs, did the alienage of the husband prevent his children from inheriting ? If an alien may purchase and hold lands to him and his heirs, he may of consequence transmit them by inheritance to his children. The statute places him on a footing with native born citizens, and gives him inheritable blood. Even if his children were aliens, they would take by inheritance. In the case of Goodell v. Jackson, 20th J. R. 707, Chancellor Kent remarks, “ That it is understood to be a general rule, that when an alien is allowed specially by statute, to take and hold lands to him and his heirs, he has of course a capacity to transmit by inheritance to his alien offspring or’other alien heirs, and they have equally a capacity to take.” This doctrine, which was held in the case of a patent granted by the state, to an alien, was approved in the case of Jackson v. Etz, 5 Cow. 321. And in a subsequent case in the same court, Jackson v. Adams, 7 Wend. 370, the court say, “ That if the doctrine be true in the case of a patent, it is not perceived why it is not equally applicable to the case of a-legislative grant, or authority to an alien to purchase and- hold lands to him and his heirs.” And in this case it was expressly decided, that “ if an alien, holding lands under an act of the legislature, authorizing aliens to purchase and hold lands to him and his heirs, dies intestate, his lands descend to his heirs, although they are aliens.”

Upon this statute, and these authorities, the children of James Yeo, who are also the children of the demandant, might have inherited the estate of their father in these lands, the demandant is entitled to her dower.

The only remaining question to be decided in the case, is whether the demandant’s remedy is in this court, or whether she is to resort to a court of equity to enforce her right ? The right of dower at common law, is a legal right, and it is especially so when allowed and defined by statute. The natural and appropriate remedy, therefore, would seem to be in a court of law. Yet, as was remarked by Chief Justice Marshall, in Herbert v. Wren, 7 Cranch, 307, “ the practice which prevails in England,” [and he might have added in this state] “ is, that courts of equity •and courts of law exercise a concurrent jurisdiction in assigning dower.”’ He also remarks, that “there are many reasons in favor of chancery jurisdiction, and, among others, that partitions are made and accounts taken in a manner favorable to the purposes of justice.” It might be said, further, that the power of substitution, or granting an equivalent for this right, under certain circumstances, which a court of equity may exercise, makes it peculiarly proper that it should entertain such jurisdiction. The defendant, however, contends that here is a claim set up in a trust estate, and that trusts are exclusively the subject of equity jurisdiction. Two answers may be given to this proposition : 1st. Whore a trust is open and declared, it may be reached at law : 2nd. In the case before us, the dower secured by the statute* is not a right in the use or trust, but in the land itself. There is no impediment, therefore, in enforcing this claim in a court of law, nor any necessity of resorting to a court of equity.

I am of opinion, upon the whole case, that the demandant is entitled to her dower in the lands in question, and that judgment should be entered for her on the postea, with costs.

Judgment for demandant.

Cited in Colgan v. McKeon, 4 Zab. 573.  