
    Shoemaker against Walker.
    In Pennsylvania, a \votnan is entitled to dower of a trust estate.
    A woman is not entitled to dower of an estate, the remainder of which in fee was vested iu her husband, dependant on an estate for life in a third person, which remainder the husbaud had aliened daring the coverture*
    CASE stated for the opinion of the Court. By the last will and testament of Phcebe Shoemaker, deceased, dated the 2d August, 1788, and by a deed of trust from Benjamin Shoemaker and Elizabeth his wife, to John Reynell, bearing date the 31st October, A. D. 1765, Charles Shoemaker, “ was vest- “ ed with, and entitled to the remainder of one-eighth of all the real estate in the said deed mentioned after the life “ estate thereby given to his mother, Elizabeth Shoemaker, “ shall have expired,” &c.
    
      . On' the 4th June, 1792, Charles. Shoemaker, by deed in consideration of a debt of above 4,000 pounds,sterling to Hathrop Es? Co. and to secure, the same, also of 20 shillings, granted, &c. to John Whitesides “ all his estate, right, title, “ interest, claim and demand, of, into, and out of all the resi- “ due of the remainder of the said one-eighth of the real estate “ above-mentioned, as well as all and every the real estate “ of him, the said Charles Shoemaker, wheresoever the same “ may be, and whether it be in possession, reversion, or re“mainder.”
    The demandant was married to Charles Shoemaker on the 7th January, A. D. 1798.
    
      Elizabeth Shoemaker, the mothei- of Charles, died the 23d ■April, 1798. \ , „ ■
    
      Charles Shoemaker died the 4th April, 1807, leaving a widow and childreti. _ .
    
      John Whitesides, in the life-time of Elizabeth Shoemaker, viz. on the-day of.-granted and conveyed the estatp in question to the defendant.
    The question submitted to the decision of the Court is, whether the widow is entitled to her dower,in, the estate so devised to Charles Shoemaker? If the Court shall be of opinion in the affirmative, then judgment to be entered for the demandant for an amount to be ascertained by the counsel. Otherwise, judgment to be for the defendant.
   Tilghman C. J.

In this case two questions are made. 1. Whether a widow is entitled to dower of a trust estate. 2. Whether she is entitled to dower of an estate, the remainder of which in fee was vested in her husband, dependent on an estate for life in a third person, which said remainder her husband had aliened during the coverture. 1. In England a woman is not dowerable of a trust estate although a husband may be tenant by the curtesy. This is the more remarkable, as dower is the favourite of the common law. A woman has her dower where the husband had only a seisin in law, but a man cannot be tenant by the curtesy unless there was a seisin in fact. No good reason has been assigned for excluding the wife of her dower in a trust estate. It rests upon usage, which though not now approved cannot be altered by any authority less than the parliament. In Pennsylvania the usage has been more reasonable and more analagou* to tbe general principles of dower. — The husband and wifte are placed on an equal footing. He has his tenancy by the curtesy? and she has her dowér. I do not know that the question has ever been brought to a decision in this Court, The reason of this I take to be, that it has never been doubted. I have frequently heard it taken for granted, but never seriously questioned. I do not understand that the learned counsel who now makes the point, supposes the law to be in his favour. But he wishes it to be settled by a solemn decision. It is best that it should be so. My opinion is, that by the usage and law of Pennsylvania a woman is dowable of a trust estate.

2. By the common law there can be no dower, unless the husband is seised in fact ór in law of the freehold, as well as the estate of inheritance, during the coverture. This is not questioned by the counsel for the demandant. But he supposed, that in this state the law might be different, in consequence of some provisions in our intestate acts. He has, however, very candidly and very properly declared, that upon examining the act of assembly he finds, that its provisions are not applicable to a case where the' husband had aliened his whole interest by deed. That is the present case. The demandant, therefore, is pot entitled to a recovery of dower.

Yeates J. and Brackenridge J. concurred  