Goodwin v. Winsmore. Banks v. Sutton, in the second case, where a trust estate descended, or came to the husband from another person it was different. This distinction has however been exploded by Lord Hardwicke, in a case which will be stated hereafter. 21. It is also laid down by Sir Joseph Jekyll, that where a particular time is appointed for conveying the legal estate to the husband, and he outlives that time, without obtaining such conveyance, his widow shall notwithstanding be entitled to dower in equity; for where an act is to be done by a trustee, that is looked on as done, which ought to have been done. But this doctrine is not supported by the decree in the case referred to, without the additional proposi tion, that a widow was dowable of an equity of redemption in fee. It was a mortgage in fee, and not paid off during the coverture. If the trustee therefore had conveyed, he would have conveyed an equity of redemption only, subject to a mortgage in fee; and the widow would not have been entitled to dower, unless she was dowable out of such equity of redemption, which she was not. This therefore, Tit. 15. c.3. though said, will not support the decree; and the proposition is too important, and contradicted by too many analogies, to be hazarded upon this dictum alone. Dixon v. Saville, Nor to Free Goodwin v. Winsmore, 2 Atk. 525. 22. It is said in the case of Otway v. Hudson, 2 Vern. 583. that the widow of a cestui que trust of a copyhold ought to have her free bench, as well as if the husband had the legal estate in him. But this doctrine has been contradicted in the following cases. 23. A bill was brought by a widow for a customary The husband's father bought the lands, which were conveyed to him and D. and the heirs of the father. The father devised the lands to the estate. husband in tail; and D. survived the husband. The custom was laid for the wife to have, the whole, as her free bench. Lord Hardwicke-" It is an established doctrine now, that a wife is not dowable of a trust estate. Indeed a distinction is taken by Sir J. Jekyll, in Banks v. Sutton, in respect to a trust, where it descends or comes to a husband from another, and is not created by himself; but I think there is no ground for such a distinction; for it is going on suppositions which will hold on both sides; and at the latter end of the report, Sir J. J. seems to be very diffident of it, and rested chiefly on another point in equity; so that it is no authority in this case. But there is a late authority in direct contradiction to the distinction above taken in Banks v. Sutton; the case of the Attorney General v. Scott. The Forrest 138. only case for the plaintiff is that of Otway v. Hudson, 2 Vern. 583; there it was free bench, and is so called is seised of during the coverture; as dower is. There Tit. 10. c. 3. 4 Bro.R. 521. 24. Where a man, immediately before his marriage, Tit. 32. c. 26. privately and secretly conveys his estate to a trustee for himself, in order to defeat his wife of dower, such conveyance will be deemed fraudulent and void. 25. Before the statute of uses, the king was not Subject to entitled to any use upon an attainder for high for Treason. Forfeiture 1 P. C. 248. But not for Att. Gen1 v. Sands, treason of the cestui que use, as is mentioned in the preamble of that statute: so that afterwards trusts were, by an analogy drawn from uses, also protected from forfeiture, upon an attainder of the cestui que trust for high treason. By the statute 33 Hen. VIII. c. 20. it is enacted, "that if any person shall be attainted or convicted of high treason, the king shall have as much benefit and advantage by such attainder as well of uses, rights, entries, and conditions, as of possessions, reversions, remainders, and all other things, as if it had been done and declared by authority of parliament.” 26. Lord Hale has observed, that at the time when this statute was made, there could be no use but that which is now called a trust; and although it was determined in Abingdon's case, that a trust estate of freehold was not forfeited by attainder of treason, yet that resolution could not be reconciled with the statute 33 Henry VIII., as the uses there mentioned could be nothing but trusts; therefore he was of opinion, that upon an attainder for high treason of the cestui que trust of an inheritance, the equity or trust was forfeited; though possibly the land itself was not forfeited. 27. Whatever may be the case in an attainder for high treason, it has been determined that an attainder for felony is not within the statute 33 Henry VIII. Therefore, in such a case, neither the land, nor the trust becomes forfeited; for the king has his tenant as before, namely the trustee. 28. Freeman Sands being attainted of felony, for 1 Hale, P. C. the murder of his brother, and having a trust estate in lands held of the King, of which Sir George Sands had the legal estate; the Attorney General preferred an information in the Exchequer against Sir G. Sands, 249. to have a conveyance of the legal estate to the King. The Court resolved, that although Freeman Sands had the trust of the land at the time of his attainder, yet inasmuch as Sir G. Sands continued seised of the lands, and so was tenant to the King, though subject to the trust, yet the trust was not forfeited to the Crown; but that Sir G. Sands should hold the lands for his own benefit, discharged from the trust. 29. A trust estate of inheritance does not escheat to the Crown by the death of the cestui que trust without heirs. But the trustee will hold the land discharged from the trust. Not subject to Escheat. Crown Debts, 3 Cha. R. 20. 30. It is somewhat doubtful whether trusts were Liable to originally liable to Crown debts. But by the statute 13 Eliz: c. 4. § 5. it is enacted, that if any person who is an accountant, or indebted to the Crown, shall purchase any lands in the names of other persons, to his own use; all such lands shall be taken for the Tit. 14. satisfaction of the debts due by such persons to the Crown. Persons. 31. When trust estates of freehold were established And to Debts by the Court of Chancery, it was there held, by due to Private analogy from the old law of uses, that they were not Bennet subject to debts, nor assets in the hands of the debtors Cha. Ca. 12. heirs. v. Box, 32. To remedy this, it was enacted by the statute 29 Cha. II. of frauds, c. 3. § 10. "That it shall and may be lawful for every sheriff or other officer, to whom any writ or precept shall be directed, upon any judgement, statute, or recognizance, to do, make. and deliver execution unto the party in that behalf suing, of all such lands, tenements, &c. as any other person or persons shall be seised or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done if the said party against Tit. 14. § 71. 2 Atk. 293. Merge in the legal Estate. Wade v. Goodright Tit. 29. c. 3. 3 Ves. Jun. 126. whom execution shall be so sued had been seised of such lands, tenements, &c. of such estate as they be seised of in trust for him at the time of the said execution sued, which lands tenements, &c., by force and virtue of such execution, shall accordingly be held and enjoyed freed and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued: and if any cestui que trust shall die leaving a trust in fee simple to descend to his heir, then and in every such case, such trust shall be deemed and taken, and is hereby declared to be, assets by descent; and the heir shall be liable to and chargeable with the obligation of his ancestors, for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession, in like manner as the trust descended." 33. It has been held, that if a trustee has conveyed away the lands, by the direction of the cestui que trust, before execution sued, they cannot be taken in execution. 34. Where a trust estate descends on the heir at law, though it may be necessary to resort to equity to reduce it into possession, yet it will be considered as legal, and not equitable assets: a trust estate being made assets by the statute. 35. Trust estates are in all cases subject to merge in the legal estate, whenever both estates come to the same person: for a man cannot be a trustee for himself. And in a modern case Lord Thurlow said it was universally true, that where the estates unite, the equitable must merge in the legal. 36. In a subsequent case Lord Alvanley said, “ Another position was maintained in a latitude that would |