attempt to give to equitable estates the same incidents that belong to legal estates; but when it was proposed to assign dower to a widow out of her husband's equitable estate, it was found that it would disarrange so many titles and estates that the attempt was abandoned. The same inconvenience did not arise in allowing curtesy to a husband, for the reason that a wife could not convey her equitable interests without her husband joining in the act, and thus, to allow him curtesy would not affect titles to any considerable extent.1 But by a late statute a wife is now dowable in equity of all the lands in which her husband dies possessed of a beneficiary interest.2

§ 324. The general rule in the United States is, that a wife is dowable in equity in all lands to which the husband had a complete equitable title at the time of his death.3 This rule, it is presumed, would apply in all the States where the common-law principles of dower prevail, except in Maine and Massachusetts, where a wife is not entitled to dower in her husband's equitable estates. The husband also in most States has curtesy in the equitable estates of his wife. But

1 Chaplin v. Chaplin, 3 P. Wms. 234; Attorney-General v. Scott, t. Talb. 139; Burgess v. Wheat, 1 Ed. 196; Dixon v. Saville, 1 Bro. Ch. 327; Banks v. Sutton, 2 P. Wms. 713; Casburne v. Casburne, 2 J. & W. 204; Watt v. Ball, 1 P. Wms. 109; D'Arcy v. Blake, 2 Sch. & Lef. 388.

2 3 & 4 Wm. IV. c. 105; 1 Spence, Eq. Jur. 505.

8 Shoemaker v. Walker, 2 Serg. & R. 554; Dubs v. Dubs, 31 Pa. St. 154; Reid v. Morrison, 12 Serg. & R. 18; Miller v. Beverly, 1 Hen. & M. 368; Clairborne v. Henderson, 3 Hen. & M. 322; Lawson v. Morton, 6 Dana, 471; Bowie v. Berry, 1 Md. Ch. 452; Miller v. Stump, 3 Gill, 304; Hawley v. James, 5 Paige, 318; Thompson v. Thompson, 1 Jones (N. C.), 430; Gully v. Ray, 18 Ky. 113; Barnes v. Gay, 7 Io. 26; Lewis v. James, 8 Humph. 537; Rowton v. Rowton, 1 Hen. & M. 92; Gillespie v. Somerville, 3 St. & P. 447; Robinson v. Miller, 1 B. Mon. 93; Smiley v. Wright, 2 Ohio, 512; Davenport v. Farrar, 1 Scam. 314; Bowers v. Keesecker, 14 Io. 301; Peay v. Peay, 2 Rich. Eq. 409.

♦ Hamlin v. Hamlin, 19 Me. 141; Reed v. Whitney, 7 Gray, 533; Lobdell v. Hayes, 4 Allen, 187.

Tillinghast v. Coggeshall, 7 R. I. 383; Nightingale v. Hidden, ib.

the wife must be actually in possession of her equitable interest: a mere right not in possession is not enough to entitle the husband to curtesy. But the husband's curtesy will not be defeated by the negligence of the trustee, as where money is directed to be laid in land in such manner that the husband would have been entitled to his curtesy, and the trustee neglected to invest the money during the life of the wife, the husband was held to be entitled to his curtesy.2 Nor will a trust for the separate use of the wife exclude the husband's curtesy, if at her decease the estate is to go to her heirs.3

§ 325. At common law if a person holding land committed treason or felony, he forfeited his land to the crown; and if he died without heirs, the land escheated to the crown or to his superior lord. Exactly the same incidents applied to land held in trust for another, if the trustee committed a treason or felony, or died without heirs. This rule of law

115; Dubs v. Dubs, 31 Pa. St. 154; Alexander v. Warrance, 17 Mo. 228; Robinson v. Codman, 1 Sumn. 128; Gardner v. Hooper, 3 Gray, 404; Houghton v. Hapgood, 13 Pick. 154; Rawlings v. Adams, 7 Md. 54; and see Fletcher v. Ashburner, 1 Bro. Ch. 503, and Amer. notes; 1 Green. Cruise, 147, n.; Cushing v. Blake, 30 N. J. Eq. 689.

Parker v. Carter, 4 Hare, 413; Sartill v. Robeson, 2 Jones, Eq. 510; Pitt v. Jackson, 2 Bro. Ch. 51; Morgan v. Morgan, 5 Madd. 408; 4 Kent, Com. 31.

2 Sweetapple v. Bindon, 2 Vern. 536; Dodson v. Hay, 3 Bro. Ch. 405; Parker v. Carter, 4 Hare, 413; Casborne v. Scarfe, 1 Atk. 609.

Roberts v. Dixwill, 1 Atk. 609; Hearle v. Greenbank, 3 Atk. 715; Morgan v. Morgan, 5 Madd. 408; Follett v. Tyrer, 14 Sim. 125; Bennett v. Davis, 2 P. Wms. 316; Tillinghast v. Coggeshall, 7 R. I. 383.

* Burgess v. Wheat, 1 Ed. 177; 1 Bro. Ch. 123; Hovenden v. Annesley, 2 Sch. & Lef. 617; Eales v. England, Pr. Ch. 200; Pawlett v. AttorneyGeneral, Hard. 467; Attorney-General v. Leeds, 2 M. & K. 243; Penn v. Baltimore, 1 Ves. 453; Williams v. Lonsdale, 3 Ves. Jr. 752; Reeves v. Attorney-General, 2 Atk. 223; Geary v. Bearcroft, Cart. 67; King v. Mildmay, 5 B. & Ad. 254; Wilks's Case, Lane, 54; Scounden v. Hawley, Comst. 172.

has been changed in England by statute.1 At the present day the land either will not be forfeited or escheat, or the crown or superior lord will take it subject to the same equities under which the trustee held it. In the United States, either the land would not be forfeited or escheat, by reason of the failure or incapacity of the trustee or his heirs, or the State would hold it, subject to all the equities it was under in the hands of the trustee. It might not go to the State, for the reason that, if trustees are wanting, courts will appoint new trustees; and if, for any reason, the trust estate should vest in the State, care would be taken that all the rights of the cestui que trust should be protected. There are statutes in most of the States determining the rights of the cestui que trust in such cases.

§ 326. The trustee is so far clothed with the legal title and all its incidents, that he must perform all the duties of the holder of the legal estate.2

§ 327. Before the statute of uses, the estate of the cestui que use was not forfeited for crime, and did not escheat upon failure of heirs; but the feoffee to uses held the estate absolutely as his own. And the same rule was afterwards followed in regard to trusts. Although it was enacted by statute that the cestui que use or cestui que trust should forfeit his equitable interest upon conviction for treason,5 yet the law never went further; and if the cestui que trust committed a felony, so that he could no longer claim his equitable

1 4 & 5 Wm. IV. c. 23; 39 & 40 Geo. III. c. 88; Hughes v. Wells, 9 Hare, 749; 14 Vic. c. 60.

2 Wilson v. Hoare, 2 B. & Ad. 350; Trinity Coll. v. Brown, 1 Vern. 441; 2 Ld. Raym. 994; Bath v. Abney, 1 Dick, 260; Carr v. Ellison, 3 Atk. 73; 1 Cru. Dig. 305.

8 Burgess v. Wheat, 1 Ed. 199, per Sir Thos. Clarke, M. R.

4 Attorney-General v. Sands, 1 Hale, P. C. 249.

33 Hen. VIII. c. 20; 1 Hale, P. C. 248.

rights, the trustee continued to hold the lands for his own use discharged of the trusts. And so it was held, after great debate in Burgess v. Wheat, that if the cestui que trust left no heirs, the trust estate of inheritance did not escheat, but that the trustee thenceforth held the estate discharged of the trust. This case has been doubted, but it has been followed as the law. This is upon the principle, that there is no want of a tenant to the land, the trustee being clothed with all the rights of ownership against all the world except the cestui que trust, and those claiming under him. But this principle does not apply to chattels, where there can be no tenant, nor to leaseholds," nor to an equity of redemption. In the United States, trustees would hold personal property subject to the right of the State as ultima hæres, in case the cestui que trust died without heirs or next of kin ; and it is conceived that they would hold real estate under the same rule."

§ 328. It is the duty of the trustee to defend and protect the title to the trust estate; and, as the legal title is in him, he alone can sue and be sued in a court of law; the cestui que trust, the absolute owner of the estate in equity, is regarded

1 Attorney-General v. Sands, 1 Hale, P. C. 249.

2 Burgess v. Wheat, 1 Ed. 177; 1 Black. 123; 1 Bro. Ch. 123. Middleton v. Spicer, 1 Bro. Ch. 204; Fawcet v. Lowther, 2 Ves. 300; Sweeting v. Sweeting, 33 L. J. Ch. 211.

Taylor v. Haygarth, 14 Sim. 8; 8 Jur. 185; Henchman v. AttorneyGeneral, 3 Myl. & K. 485; Onslow v. Wallis, 1 Mac. & G. 506; 1 Hall & T. 513; Rittson v. Stordy, 3 Sm. & Gif. 230; Barrow v. Wadkin, 24 Beav. 1.

Middleton v. Spicer, 1 Bro. Ch. 201; Walker v. Denne, 2 Ves. Jr. 170; Barclay v. Russell, 3 Ves. 424; Henchman v. Attorney-General, 3 Myl. & K. 485; Taylor v. Haygarth, 14 Sim. 8; Cradock v. Owen, 2 Sm. & Gif. 241; Bishop v. Curtis, 17 Jur. 23; Powell v. Merritt, 22 L. J. 208; 1 Sm. & Gif. 381.

6 Down v. Morris, 3 Hare, 394.

McCaw v. Galbraith, 7 Rich. L. 75; Darrah v. McNair, 1 Ash. 236; Matthews v. Ward, 10 G. &. J. 443; 4 Kent, 425; Crane v. Ruder, 21 Mich. 25.

in law as a stranger. The rule is carried to the extent that the grantee of the trustee can alone maintain an action upon the legal title, although the conveyance to him was a breach of the trust. To protect himself, the trustee must defend the title if he is sued. It is his duty to give the cestui que trust notice of a suit hostile to his interests, and to defend the action in good faith. To act otherwise would be a breach of trust.3 A trustee may also maintain an action for any trespass upon the land; but if the cestui que trust is in the actual possession of it, he may maintain an action for any injury done to his possession.5 If, however, the trust is terminated by operation of law or otherwise, and the property has vested in the cestui que trust, he may after that time maintain an action upon the title; and so if there has been a conveyance or surrender by the trustees to the cestui que trust, or a presumption of a surrender from the fact that the purposes of

1 May v. Taylor, 6 M. & Gr. 261; Gibson v. Winter, 5 B. & Ad. 96; Allen v. Imlett, Holt, 641; Goodtitle v. Jones, 7 T. R. 47; Baptist Soc. v. Hazen, 100 Mass. 322; Cox v. Walker, 26 Me. 504; Beach v. Beach, 14 Vt. 28; Moore v. Burnet, 11 Ohio, 334; Wright v. Douglass, 3 Barb. 59; Matthews v. Ward, 10 G. & J. 443; Mordecai v. Parker, 3 Dev. 425; Finn v. Hohn, 21 How. 481; Hooper v. Scheimer, 23 How. 235; Fitzpatrick v. Fitzgerald, 13 Gray, 400; Chapin v. Universalist Society, 8 Gray, 581; Crane v. Crane, 4 Gray, 323; Davis v. Charles River Railroad, 11 Cush. 506; Raymond v. Holden, 2 Cush. 268; Moody v. Farr, 33 Miss. 192; Adler v. Sewell, 20 Ind. 598; Western R. R. Co. v. Nolan, 48 N. Y. 517; Church v. Stewart, 27 Barb. 553; Ryan v. Bibb, 46 Ala. 323; Ponder v. McGruder, 42 Ga. 242; Kirkland v. Cox, 94 Ill. 402.

2 Reece v. Allen, 5 Gilm. 241; Taylor v. King, 6 Munf. 358; Canoy v. Troutman, 7 Ired. 155; Cary v. Whitney, 48 Me. 516; Matthews v. McPherson, 65 N. C. 189; Phillips v. Ward, 51 Mo. 295.

8 Mackay v. Coates, 70 Pa. St. 350; Warland v. Colwell, 10 R. I. 369. 4 Walker v. Fawcett, 7 Ired. 44.

5 Cox v. Walker, 26 Me. 504; Stearns v. Palmer, 10 Met. 32; Second Cong. Soc. North Bridgewater v. Waring, 24 Pick. 309.

6 Nicoll v. Walworth, 4 Denio, 385; Matthews v. McPherson, 65 N. C. 189; Lockhart v. Canfield, 49 Miss. 470.

7 Den ex d. Obert v. Bordine, 1 Spencer (N. J.) 394; Hopkins v. Ward, 6 Munf. 38; Doggett v. Hart, 5 Fla. 215.