
    Honoria T. McNish, and others, vs. Franklin P. Pope.
    C. L. and J. H. were appointed trustees upon tbeir giving security, and the trust estate, land, was ordered to be sold. At the sale C. L. became the purchaser for $1500. He and J. H. then gave bond as trustees, and the commissioner conveyed to him the land taking his receipt, as trustee, for the purchase money. On the same day he mortgaged the land, as counter security, to G-. P., a surety on his bond as trustee. Two years afterwards O. L. sold the land for two thousand and twenty-five dollars, which was paid to G-. P., to “ be by him applied to the trust bond for the benefit of" the cestui que trusts: — Held, that the widow of 0. L. was entitled to dower in the land.
    "Where a trustee purchases the trust property and the sale is not impeached by the ceskii que trusts, his title is good and his wife's right of dower attaches.
    BEFORE DUNKIN, OH., CHARLESTON, JUNE, 1855.
    Dr. Thomas E. Screven, by deed dated 27th January, 1829, conveyed a tract of land on May River, called the Rower, to John McNish, trustee of Honoria McNish, John Horatio, Charles Lycurgus, Thomas Julius, Laura, Mary, Catharine, Jane Dupre, and Susannah McNish, in trust for the aforesaid children and such other children as may be born of the body of Ann McNish, wife of John McNish, to be divided among them equally, share and share alike, and until such division shall take place, to be occupied and used entirely and specially for the maintenance and support of the aforesaid children. By deed, dated 5th February, 1831, between the same Dr. Screven, of the first part, Ann McNish of the second part, and Jeremiah Fielding and Richard Davant of the third part, reciting that Dr. Scre-ven had purchased a plantation called Stock Farm, on May River, and certain negroes, at Sheriff’s sale, as the property of John McNish, and had sold part of the land and reimbursed himself for the money paid, and that Mrs. McNish had released her dower in the part thus sold, he conveyed the residue to Fickling and Davant, in trust, to permit the said Mrs. Ann McNish to receive and take the rents, &c., during her natural life, and after ber decease, for all such child or children as she shall at the time of her death leave alive and surviving her, share and share alike, as tenants in common and not as joint tenants, their heirs and assigns forever.
    26th January, 1838. — A petition was presented by Mr. Alexander L. Edwards, at Gillisonville, in the name of Mrs. McNish, praying that C. L. McNish, and J. H. McNish might be substituted in place of Eickling and Davant, as trustees, under the deed of 5th February, 1831.
    Mr. Davant, the commissioner, being a party, this petition was referred to Angus Patterson, Esquire, as a special commissioner, who reported the next day, on the testimony of George Pope and Alexander Yerdier, that C. L. and John H. McNish were proper persons to be trustees in place of Fick-ling and Davant. That report was confirmed on the same day, and an order entered, that C. L. and J. H. McNish be substituted trustees to the deed of trust mentioned in the petition, upon such certificate being endorsed by the commissioner upon the original trust deed, and duly recorded.
    On the next day, the 29th January, 1838, petitions were presented severally by John McNish, as trustee under the deed of 27th January, 1829, and C. L. and John H. McNish, as trustees under the deed of 5th February, 1831, stating that the two pieces of land were adjoining and brought no rent, and ought to be sold. In each case an order was made the same day, referring the petitions to the Commissioner to report on the facts and the propriety of granting the prayer of the petitions, and the gross value of the trust property proposed to be sold.
    On each petition the commissioner made a separate report next day, viz.: that from the testimony of Norton, Logan, Yerdier and Pope, filed with the report, it would appear that a sale is beneficial to the cestui que trusts.
    
    On the 2d February, 1838, an order was entered in both cases, that the commissioner hold a reference to ascertain the gross value of the trust property proposed to be sold, and upon the trustees’ giving bond and security in double its value, for the faithful discharge of their duties, the property mentioned in the petitions be sold by the commissioner, and the proceeds delivered to the trustees, to be held by them subject to the trusts, respectively in the trust deeds.
    Nothing was done till 1839, when a new petition was presented to the Court at January term, in the name of C. L. McNish, Honoria McNish and J. H. McNish, setting forth Dr. Screven’s conveyance to Davant and Fielding, for the use of petitioners, their father, mother, brothers and sisters, viz,: Laura, Thomas Julius, Jane Dupre, Mary Catharine and Susannah Dupont McNish, of a tract of about three hundred and fifty acres, called Stock Farm, and another conveyance by the same in trust to John McNish, father of the petitioners, for the use of petitioners, and the other parties above mentioned, of a tract of land called the Bower; that the lands in their present situation, are of little value, and that it would be much to the interest of the petitioners, who are of age, and of their father and mother, and of their brothers and sisters, who are under the age of twenty-one years, that the same should be sold, and the proportional shares of the minors put out at interest, upon bond, with good security, bearing interest payable annually. That as the interest of petitioners is small, it would be to their advantage to receive it in fee simple. Prayer accordingly. The petition is thus endorsed: — “We acknowledge the legal service of this petition 28th January, 1839. John McNish, Ann McNish, Laura McNish, T. J. McNish, Jane D. McNish, Mary C. McNish, Susannah D. McNish.” Thus making all the parties in interest, parties to the petition.
    At the same time an order was entered that the order of reference be extended to the next term.
    In this state matters remained until 1841, when a report on the last named petition was filed, certifying that Dr. Screven conveyed by deed of 8th February, 1831, the land described in the petition, to Fielding and Davant in trust, and that in 1838, on the petition of Mrs. McNish, an order was made for change of trustees, on condition of the substitution being endorsed on the original deed by the commissioner and duly recorded. That the original deed had been sent to Charleston for registration and could not be found, and so the order in this respect could not be complied with. That he, the commissioner, had no evidence of the execution of the other deed; that from the testimony of George Pope, both the tracts are worth together not more than one thousand five-hundred dollars, and that a sale would be advantageous to the cestui que trusts: On the same day an order was entered modifying the order made in January, 1838, so far as to dispense with the endorsement on the original deed, directing the land described in the petition to be sold, and that on the trustees C. L. McNish and J. H. McNish giving bond and security, in double its value, the proceeds to be delivered to the trustees, to be held by them subject to the trusts respectively in the trust deeds.
    On 1st March, 1841, Mr. Davant, the commissioner in Equity for Beaufort District, offered both tracts for sale in one lot, and set them down to 0. L. McNish as purchaser, at one thousand five hundred dollars, and made him a deed bearing date the same day, and expressed to be for the consideration of one thousand five hundred dollars paid; and took a receipt from him for the purchase money, and took a bond from C. L. McNish, J. H. McNish, George Pope and F. H. Walsh, in the penal sum of three thousand dollars, reciting the appointment of C. L. McNish and J. H. McNish, as trustees, in place of Fielding and Davant, under a deed made by Thomas E. Scre-ven, and conditioned for the faithful performance of their said trust. C. L. McNish on the same day, mortgaged their land to George Pope as a counter security against his bond. At the sitting of the Court in May, 1841, Mr. Davant reported that he had sold to 0. L. McNish both tracts of land for one thousand five hundred dollars, and taken his receipt for the purchase money, deducting costs, which report, on the 19th February, 1841, was confirmed.
    
    By deed, bearing date 29th December, 1843, C. L. McNish conveyed the same premises to B. E. Guerard, in consideration of two thousand and twenty-five dollars, which was received by George Pope, who signed the following memorandum: “ Gillisonville, 29th December, 1843, received of Mr. C. L. McNish, through the hands of Mr. B. E. Guerard, two thousand and twenty-five dollars, which is to be applied to the trust bond given by him for the benefit of the McNish family.” At the same time George Pope bound himself by a written contract with the purchaser to procure the consent of all the adult cestui que trusts interested in the two tracts of land purchased by him, “and to procure a relinquishment of dower from Sarah Jane McNish, the wife of O. L. McNish, or return the purchase money, and to give up his mortgage to be 'cancelled.”
    
    Prior to 5th January, 1844, a bill was filed by S. Lawrence as the next friend of Jane McNish, Susannah McNish and Mary McNish, infants, to restrain George Pope from paying over the money in his hands to C. L. McNish or John H. McNish ; and an injunction was granted by the commissioner on the day last mentioned, which injunction, at the sitting of the Court in February, 1844, was continued; and a provisional order was made that, in case the defendants did not answer, the commissioner should inquire how much should be set aside out of the purchase money as the price of Stock Farm.
    On that bill no further proceedings were had, and C. L. McNish died in the same year, leaving a widow and two children.
    On 1st December, 1847, the same complainants and their mother filed their bill against B. E. Guerard, as well as J. Fickling, R. J. Davant, John McNish, John H. McNish, and the personal representatives of 0. L. McNish, when they come within the jurisdiction, praying to set aside the sale to 0. L. McNish, and to have the Bower and Stock Farm divided between them and B. E. Guerard, as the purchaser of the shares of C. L. McNish and J. H. McNish. Mr. Guerard put in his answer, claiming as a bona fide purchaser, without notice for valuable consideration, and the cause came on to be heard in January, 1849, when the bill was dismissed with costs as to Stock Farm, and retained for further inquiry as to the Bower, and with leave to make John H. McNish a party. On appeal, this decree was confirmed with a slight modification.
    In February, 1850, the cause came on again, and the bill was dismissed with costs. Afterwards leave was obtained to sue the bond of George Pope at law, and an action was brought in the Court of Common Pleas in the name of the Commissioner. Pending this action, Mrs. McNish died on the 1st October, 1851. In April, 1852, the case Davant vs. Pope was tried, and a verdict had for plaintiff, from which the defendant appealed, and the Court of Law ordered the judgment to stand as a security until an account should be taken in this Court.
    A bill was then filed by Honoria, Laura, Thomas J., Jane D., Mary C. and Susannah D. McNish, against F. P. Pope, executor of George Pope, John H. McNish, and the administrators of Ann McNish and C. L. McNish. The defendant Pope answered, denying that he was liable on the bond, because the bond was for the trustees of Stock Farm only; and denying that he was liable on his receipt of the money, because he received it as an indemnity against the dower of C. L. McNish’s wife. The case was heard the 11th July, 1853, by Chancellor Wardlaw, who, on the 30th November, 1853, decreed, among other things, that the defendant F. P. Pope, executor, pay to the plaintiffs and John H. McNish, in equal shares, three-fourths of the aggregate price of two thousand and twenty-five dollars, with interest from December 29th, 1843, on so much thereof as represents the value of the Bower, and with interest from 1st October, 1851, on so much thereof as represents the value of Stock Farm ; and that said defendant Pope pay to Thomas J. Bresnan, administrator of Ann McNish, the interest on three-fourths of so much of the aggregate price as represents Stock Farm from 29th December, 1843, to October 1, 1851. And that said executor be allowed to retain one-fourth of said aggregate price, with interest from December 29, 1843, until the further order of the Court, with leave to any of the parties, after the lapse of ten years from the death of C. L. McNish, to move for the payment of the amount reserved. From this decree all the parties, except Pope, appealed. The opinion of the Court was delivered by Chancellor Johnston, as follows: “ The decision of the Chancellor is not that the widow of Lycurgus McNish is entitled to dower, in the premises purchased by him at the commissioner’s sale, but merely, that, if she is, the fund in the hands of Pope should be subject to the value of her dower.
    “ We think his decision is right, and that he has properly exercised his discretion to retain, for a reasonable time, so much of the fund as may be required to meet her claim.
    “ The purchase of the premises by Lycurgus may have been subject to an avoidance by those interested in the land, on the ground that he was a trustee; but, being parties to the proceeding, under which the sale was made, they waived their equity by assenting to the confirmation of the purchase.
    “That confirmation was a waiver of all equities in the land, and by his bond Lycurgus became trustee for the price of one thousand five hundred dollars, obtained for the land; and Pope became surety for the trusts undertaken.
    “ If by their subsequent sale to Gruerard a profit was made on Lycurgus’ purchase, it was for him alone to detei’mine whether that profit should enure to the cestui que trusts of the one thousand, five hundred dollars, or to himself: and, if by an act, entirely voluntary, he indicated an intention to convert it to them, neither he nor his surety should be so harshly dealt with, as to deny them the privilege of discounting out of the profit the means by which it was to be secured.'
    
      “It appears that Guerard stipulated for a title disencumbered from the dower of Lycurgus’ wife: and that when Pope, as the agent of both parties, (Lycurgus and Guerard) received the two thousand and twenty-five dollars, to be applied to the bond, he at the same time bound himself to Guerard to procure an extinguishment of the dower, or to return the money to Guerard. Such a transaction means in substance, that the fund they received — less the amount of the dower — is trust money. So the Chancellor has held, and we approve his decision. It is ordered that the decree be affirmed, and the appeal dismissed.”
    In the meantime Alvin N. Miller, who had intermarried with Sarah Jane, the widow of C. L. McNish, and the said Sarah Jane, his wife, before the expiration of ten years from the death of C. L. McNish, instituted proceedings in the Court of Common Pleas, at Gillisonville, against the tenants in possession of the Stock Farm and Bower plantations, for the recovery of the dower of the said Sarah Jane therein, which proceedings are now pending.
    • On 6th April, 1855, Franklin P. Pope filed the bill in this case, praying, among other things, that the said Alvin N. Miller, and his wife may be enjoined from further prosecuting their suits at law against Bernard E. Guerard, Rev. J. Stoney, and R. H. Kirk, to recover her dower, or from suing out their writs for the admeasurement of her dower in the said land; and that the said Honoria McNish, Laura McNish, Jane D. McNish, Mary C. McNish, Thomas J. McNish, Susannah D. McNish, and John H. McNish, and John T. Bresnan, administrator of the estate of Mrs. Ann McNish, may implead with the said Alvin N. Miller and his wife, and the administrator of the estate of Lycurgus McNish, touching the right of the said Alvin N. Miller and wife to dower in the said land: and touching the right of the said Honoria McNish, Laura McNish, Jane D. McNish, Mary C. McNish, Thomas J. Mc-Nish, Susannah D. McNish, and John H. McNish, and John T. Bresnan, administrator of the estate of Mrs. Ann McNish to the said sum of money in the complainant’s hands; and that the Complainant may be allowed to bring the said sum of money into Court, and for general relief. Whereupon, an order was granted by Master Gray, on April 6th, 1865, for a writ of injunction to issue according to the prayer of the bill. The defendants all answered — Miller and wife assenting— and the others denying her right to dower in the premises.
    The case was heard in Charleston, in June, 1855, by Chancellor Dunkin, who on 14th August delivered the following decree:
    DüNKIN, Ch. — Chancellor Wardlaw’s decree in McNish vs. Pope, and the appeal decree affirming that judgment, left undecided the right of Lycurgus McNish’s widow to dower in the premises. In the conclusion of the Circuit decree it is said —“ As the widow of 0. L. McNish and B. E. Guerard are not parties to the suit, it would be unsafe and improper to order the whole fund to be paid into Coui’t without calling them in.” Three-fourths of the fund was ordered to be paid to the parties, and in this respect the plaintiff, Franklin P. Pope, has complied with the decree of the Court. The other fourth the plaintiff “ was allowed to retain until the further order of the Court, with leave to any of the parties, after the lapse of ten years from the death of C. L. McNish, to move for the payment of the amount reserved.” It appears that Alvin N. Miller and his wife, (formerly the widow of Lycurgus McNish,) have recently instituted suits at law to recover dower in the Bower tract and Stock Farm. The bill, among other things, prays an injunction against the proceedings at law.
    Chancellor Kent says, 4 Kent, 42, “ It has been long held, and is now definitely settled, that the wife of a trustee is not entitled to dower in the trust estate; and if she attempts it at law, equity will restrain her.” See also Hill on Trustees, 269.
    The title to Stock Farm and the Bower was complicated, some of the parties interested were minors. All the orders and proceedings, prior to the sale by the commissioner, on 1st March, 1841, tend to show that the object was to effect an advantageous sale by placing the title in one for the benefit of all. Preliminary to the sale, both tracts were valued together, and a bond taken from J. H. McNish, as required by the Court. C. L. (or Lycurgus) McNish bid off the property, and the commissioner executed a conveyance to him, but he neither gave bond, nor paid money, as was required by the terms of sale. He merely gave to the Commissioner a receipt for the amount. When on the 29th December, 1843, Lycurgus Mc-Nish resold to B. E. Guerard, the receipt given on the same day for the purchase money, and declaring the purpose to which it was to be applied, is a sufficient acknowledgment of the real character of the transaction and of the understanding of the parties. Some confusion arises from the fact that Lycurgus McNish was one of the trustees. If a third person, Dr. Scre-ven, for instance, had bid off the land at .one thousand five hundred dollars, and received a conveyance, and on the same day, or the next day, had resold to B. E. Guerard for two thousand dollars, and had given a receipt acknowledging that the purchase and re-sale had been for the benefit of Mrs.. McNish’s children, and in conformity with the previous arrangement to that effect, and had forthwith paid over the money to J. H. McNish and Lycurgus McNish, as trustees for those children, the Court is unable to perceive upon what principle the widow of Dr. Screven would be afterwards permitted to prosecute a claim of dower against the purchaser, B. E. Guerard. If Dr. S., on the re-sale to Guerard, had executed to him a conveyance with full covenants, and after giving the receipt, &c., had delayed to pay over the full amount, and on his decease, his executor declined to pay the balance in consequence of a demand of dower instituted by his widow against the purchaser, it would be, in substance, this case. Another view may be taken with the same result. No money passed between Lycurgus MeNish and the Commissioner on 1st March, 1841. But MeNish took upon himself to represent all the parties in interest, and applied their money to enable him to procure the commissioner’s title. Acting, as he did, in good faith and for the benefit of all, he might well do this. He took the title in his own name; but their money paid for it. Assuming that he was liable on his bond as trustee for the money, his responsibility was satisfied by showing the application of the funds to this purchase; affirmed, as it has been, by their subsequent conduct. Now the clear result of all the cases, as Mr. Justice Story says, “ without a single exception,” is that the trust of the legal estate is in the party who pays the money. “ If the consideration money is expressed in the deed to be paid by the person in whose name the conveyance is taken, and nothing appears in such conveyance to create a presumption, that the purchase money belonged to another, then parol proof cannot be admitted, after the death of the nominal purchaser, to prove a resulting trust; for that would be contrary to the Statue of Frauds and'Perjuries. But if the nominal purchaser, in his life time, gives a declaration of, or confesses the trust, then it takes it out of the statute.” 2 Story Eq. Jur. Section 3201, and note. The principle has its “origin in the natural presumption, in the absence of all rebutting circumstances, that the person who supplies the money, means the purchase for his own benefit and not that of another ; and that the conveyance in the name of the latter, is a matter of convenience and arrangement between the parties for other collateral purposes.” There are not only “ no rebutting circumstances,” but all the circumstances confirm the presumption that Lycurgus MeNish did not purchase for himself alone, but for all those who had a common interest with him, and whose funds he had used to complete the purchase, and that the conveyance was taken in his name alone, “ as a matter of convenience and arrangement,” to facilitate an advantageous re-sale for the benefit of the parties.
    
      It is ordered and decreed that the defendants, Miller and wife, be restrained from further proceedings at law to recover dower in the premises. But, as she is entitled to a distributive share in her late husband’s interest in the proceeds of the “Bower,” it is ordered that an enquiry be made as to the amount of the same. In the meantime it is ordered that the plaintiff have leave to pay into Court the one-fourth of the aggregate sum of two thousand and twenty-five dollars, with interest from 29th December, 1843, to await the final order upon the report of the master.
    The defendants, Alvin N. Miller and wife, appealed on the grounds:
    1. Because it is respectfully submitted that the widow of Charles Lycurgus McNish is entitled to dower in the Stock Earm and Bower plantation, as lands of her deceased husband, and that his Honor erred in decreeing otherwise.
    2. Because it is respectfully submitted that by the sale and conveyance of the said lands, made by order of the Court of Equity and confirmed in a case in which all the parties in interest were before the Court and consenting, the legal title to the said lands was perfected in the said Charles Lycurgus McNish and his wife thereby became dowable of the same.
    3. Because’ it is respectfully submitted that the receipt of Greorge Pope, of 29th December, 1843, was no acknowledgment by C. L. McNish that he held said lands in trust.
    4. That no subsequent act of C. L. McNish (the legal estate having once vested in him) could operate to defeat his wife’s right of dower in said lands.
    5. Because the decree of his Honor is in other respects contrary to law and equity.
    Fielding, for appellants.
    
      Petigru, De Treville, contra.
   The opinion of the Court was delivered by

Daegan, Ch.

I concur with the Chancellor who tried the cause on Circuit, that a widow is not dowable of lands held by her deceased husband in trust; and that the principle is the same in a case of resulting trust. But I think, that both in regard to the plantation called “ the Bower,” and that called “ Stock Farm,” the trusts were executed by the statute of uses eo instanti upon the execution of the deeds, by which they were conveyed to John McNish as trustee. And that, therefore, when at a subsequent period, Charles Lycurgus McNish was by an order of the Court substituted as a trustee in the place of John McNish, there was in fact no trusteeship to which he could be substituted. According to this view, he was never seized of the legal- estate as trustee.

But were it otherwise, I do not perceive, that the case would be materially varied. Where a trustee becomes the purchaser of the trust estate, the beneficiaries can vacate the sale, or hold him as bound by the purchase at their option. If they acquiesce in, or confirm the purchase, the title remains in him, and cannot be disturbed, or questioned by any other person. Then it becomes an absolute estate in the trustee, discharged of the trust, and the widow is of course entitled to her dower. Supposing that Lycurgus McNish was seized of this land as trustee, by an order of the Court it was sold by the commissioner, and was purchased at one thousand five hundred dollars, (its true value,) by Lycurgus McNish, to whom the commissioner executed and delivered titles. The beneficiaries, (of whom Lycurgus himself was one,) now acquiesce in the sale, and do not proceed to vacate it. They do more; they confirm the sale by dividing, and appropriating among themselves the purchase money. Who else had a right to question his title? And how can it be said, that his title was not perfect, so as to give him an estate in fee; and his wife a right to her dower.

I am not sure, in a case like this, where the trustee was himself a beneficiary, and purchased, not at his own sale, but at a sale by a public officer under a decree or judgment, for a full price and without fraud, that the sale ought not to stand.

Suppose the case of a strictly technical trust, and that the cestui que trust sells, and transfers to the trustee his equity. The contract would stand until it was impeaehed by the cestui que trust. But if the latter never proceeded for a vacation of the sale, but acquiesced in, and confirmed it, the title of the trustee would become perfect, and discharged of the trust. And there would be no reason why the widow would not be entitled to her dower.

I have said, that Lycurgus McNish was never seized of the legal estate in the land as trustee; or if he was, that trust was discharged as respects the land by the sale and conveyance to him under the circumstances which I have noticed. But by his appointment as trustee, and his receipt of the purchase money from the commissioner in that capacity, a trust attached upon the fund arising from the sale of the land, and he became liable for it in that character.

Pope, the plaintiff in this suit, was the surety of Lycurgus McNish on his trust bond. ' And when the latter became the purchaser of the land, Pope took from him a mortgage of it, by way of indemnity, or collateral security, against his liability as surety on the trust bond. When Lycurgus McNish sold the land to Guerard, it was subject to two charges or incumbrances ;• namely, Pope’s mortgage, and his own wife’s contingent claim of dower. Pope was willing to discharge his .mortgage, if Guerard would pay into his hands the money due to the trust estate, for which he was responsible. This was done, and Pope’s mortgage was released. It remained for Guerard to protect his title against the contingent claim of dower in the wife of Lycurgus McNish. This was done in the following manner: Guerard contracted for the land at two thousand and twenty-five dollars. The whole of this sum was paid to Pope, for the purpose of paying the debt due to the trust estate; and the balance, or so much of it as should be necessary, was to be applied to the extinction of the claim of dower. Pope stipulated with Guerard to procure the .relinquishment of the dower, or otherwise to return him the money. It will be profitable to refer back to former proceedings between the same parties. In the case of Honoria McNish and others vs. F. P. Pope and others, it is said in the appeal decree of this Court, “the decision of the Chancellor is, not that the widow of Lycurgus McNish is entitled to dower in the premises purchased by him at the Commissioner’s sale, but merely, that if she is, the fund in the hands of Pope should be subject to the value of her dower. We think his decision is right, and that he has properly exercised his discretion to retain for a reasonable time so much of the fund as may be required to meet her claim.” Here is an adjudication, that if the widow of Lycurgus McNish is entitled to dower, the money paid by Guerard to Pope is an appropriate fund for its satisfaction. The same appeal decree proceeds thus: “ the purchase of the premises by Lycurgus may have been subject to an avoidance by those interested in the land, on the ground that he was a trustee; but being parties to the proceeding under which the sale was made, they waived their equity by assenting to the confirmation of the purchase.”

“ That confirmation was a waivér of all equities in the land, and by his bond Lycurgus became trustee for the price of one thousand five hundred dollars, obtained for the land; and Pope became. surety for the trusts undertaken.” Here it is decided, that Lycurgus McNish took from the commissioner a title discharged of the equities of the beneficiaries of the trust to have that title set eside. It follows as a necessary consequence that the widow is entitled to her dower, as that equity constituted the only objection to her claim, in the view of the Oircut Court.

We have thus arrived at the conclusion, that the widow is entitled to her dower, and that the fund in Pope’s hands is a fund appropriate for its satisfaction. It does not follow, that her suits at law ought to have been enjoined, and she brought into this Court for the purpose of being compelled to take satisfaction of her dower out of a fund which third parties have provided for that purpose, without her consent or contract. But as she is now a party before the Court, and .consents to have satisfaction of her dower out of the fund in Pope’s hands, and to prevent circuity of action, we have thought it best to retain her in this Court, and to award her that satisfaction on her claim of dower, which she was proceeding to recover, in the Law Court, when her action was . arrested by the injunction of this Court.

It is ordered, and decreed, that so much of the circuit decree (from which this appeal is taken) as adjudges, that the widow of Lycurgus McNish, now Mrs. Miller, is not entitled to dower in the land conveyed by the commissioner in equity to Lycurgus McNish, by deed dated, 1st of March, 1841, be reversed.

It is ordered, and decreed, that the said Mrs. McNish, now Mrs. Miller, is entitled to her dower in said premises.

It is further ordered, and decreed, that satisfaction be made of said claim of dower, out of the balance of the fund in Pope’s hands paid to him by Gruerard, as has been stated, and that the said Pope do account for said balance, (being one-fourth of the purchase money of the land) from the date of the sale by the commissioner to Lycurgus McNish, to wit., from the first day of March, 1850.

By the Act of 1824, where the land has been alienated by the husband in his lifetime, the dower is to be assessed upon the valuation at the time of the alienation, with interest. By this provision I understand, that the dower is to be assessed upon the true value at the time of alienation, and that the interest is to be given from the death of the husband, when the right of dower accrues. She is not restricted to the price which the husband obtains (which in some cases may be nominal, or much beneath the market value,) but she may prove that the land is worth more, and have her dower assessed upon such higher estimate. It may be assumed however in this case, that the price given by Guerard to Lycurgus McNish, i. e., two thousand and twenty-five dollars, was a fair and full price ; more particularly, as we have heard nothing to the contrary, and the counsel for the appellants has intimated a willingness to have the dower assessed upon that valuation.

It is therefore ordered, and decreed,-that the said Mrs. Me Nish, now Mrs. Miller, is entitled as the value of her dower in said land, to the one-sixth part ef the said sum of two thousand and twenty-five dollars, that is to say, the assessed value of her dower, according to the established rules for estimating the same, is three hundred and thirty-seven dollars and fifty cents, with the interest thereon from the death of Lycurgus McNish ; the date of which event does not appear in the bi’ief. It is ordered, that the commissioner do enquire as to the day of the death of Lycurgus McNish, and that he calcu. late the interest from that time on the said sum of three hundred and thirty-seven dollars and fifty cents, and that he collect the said principal and interest from the said Franklin P. Pope, and that he pay the same to the said Alvin N. Miller and Ann Miller his wife in satisfaction of her claim of dower aforesaid.

It is further ordered and decreed, that after satisfying the said claim, the remnant of said fund, be paid to the beneficiaries of the said trust.

It is further ordered and decreed, that the plaintiff Pope do pay the costs of this suit and the costs of the suits at law, for the recovery of dowry.

Johnston, Ch., concurred.

Dünkin, Ch.,

dissenting. I am constrained to dissent from this judgment, and principally for the reasons given in the circuit decree. In Chancellor Wardlaw’s decree, 7 Rich. Eq. 193, it is stated that, on the 29th Dec., 1843, Lycurgus McNish, having sold and conveyed both tracts to B. E. Guerard, paid the purchase money, two thousand and twenty-five dollars, to George Pope, and took his receipt for the same, to be applied, to the trust bond given by him, (Lycurgus McNish), for the benefit of the McNish family." Referring to the alleged difference in the title of the Bower and Stock Farm, he says, “ where, as in this case, the trustee consents that the estate for which he is trustee shall be mixed and consolidated with another estate of his beneficiaries, as to which ho may have no fiduciary connection, and becomes purchaser of the mass at his own sale, his purchase of the whole is voidable. On this account greater effect is to be given to his subsequent acts and declarations, representing himself, notwithstanding his legal title, as remaining trustee for the whole. Beneficiaries are not bound to treat a voidable sale as void —they may affirm it and proceed for the amount of the resale and interest as the result of the management of their estate by the trustee.”' Such seems to me to have been the condition of these parties. By their previous acts, or acquiescence, they may- well hav* been regarded as affirming the purchase made by their trustee, and their bill against B. E. Guerard was properly dismissed. But this does not change the character of the transaction, or preclude their recovery of the price at which the land was sold to Guerard “ as the result of the management of their estate by the trustee.”

Decree modified.  