14 Kent Com., m. p. 49, which sustain him fully. See also 1 Wash, 134-5. The case of Ray vs. Pung is not accessible, but he puts it thus: "Lands were conveyed to A. B., and his heirs in trust, for such uses as C. D. should by deed appoint, and in the meantime and in default of appointment to C. D. in fee." Ch. Kent cites this case to sustain the doctrine that the wife is not dowable of a trust estate: 4 Com., m. p., 43. And if this is not the principle upon which the case was decided, the effect of the execution of the deed of appointment upon the wife's right of dower was considered so doubtful that in such cases all the great conveyancers used to give an interposed estate to a trustee, in order certainly to bar the dower: 2 Tho. Co. Lit., m. p. 592; note (B. 3d) by the editor; Sugden Pow., 432. Moreover, no such limitation as this was known to the common law. Its object could only be effected under the Statute of Uses by the doctrine of powers. Certainly, the example is not a good one, and its authority for the asserted doctrine very questionable. It was the other authorities, including those added, which made the difficulty. Now, the principle contended for, as governing this class of base fees, or limitations, is that when the estate comes naturally to an end by the efflux of time, the seisin being only determined from that time and not ab initio, dower should be allowed. Mr. Crabb, after saying that where the donor enters for breach of conditions, as the entry absolutely defeats the estate of the tenant, so it defeats the wife's right to dower, very shortly concludes as follows: "So where a person has a qualified or base fee, the right to dower ceases when the estate is determined," and refers only to Seymour's case, 10 Rep. Mr. Preston refers to no authority, but makes the simple assertion. Ch. Kent refers to Preston, and to Butler's note (170) to Co. Lit., 241, a., being the same note (1) to 3 Tho. Co. Lit. Appx., above referred to. And Mr. Atkinson lays down the same doctrine: 1 Atk. Com., 255. The only adjudicated case is 10 Rep., 96, Seymour's case. This report is not accessible, but, as may be gathered from Mr. Butler's note above referred to, and IX Viners Abridg't "Dower" (F. 10), where the case is cited, it does not sustain the broad assertions of Preston, Crabb, Kent, Atkinson, and Washburn, for it seems that Seymour's case was one where the bargainor himself was tenant in tail, and sold the land to H. and his heirs. It was held that "H. has an estate descendable and determinable upon the death of the tenant in tail, and his wife shall be endowed determinable on the death of the tenant in tail; resolved in Seymour's case, Mich. 10 Jac." See, also, 1 Cruise Dig.,

46. The distinction is between the grant of a determinable fee by one seised in fee simple and the grant of a fee simple by one seised only of a determinable fee. The reference to Comyn's Digest gives the following: "A wife shall not be endowed where the estate of the husband is determined: as, if a feoffment or covenant to stand seised, &c., be to the use of B. and his heirs till C. marries; B. dies, his heir takes a wife and dies, and then C. marries, the wife shall not be endowed: Dub. 1 Rol., 676, F." This case is cited with a doubt. The Judges were equally divided "Scilicet, Crawley and Vernon, that she shall not be endowed, and Hutton and Heath e contra." IX Viners Ab. Dower (F. 1), where the case is stated more at large, and as follows: "If A., seised in fee of lands, covenants to stand seised thereof to the use of himself and his heirs till C., his middle son, takes a wife, and after to the use of C. and his heirs, and after A. dies by which it descends to B., the elder son of A., who has a wife and dies, and after C. takes a wife, it seems the wife of B., the elder son, shall not be endowed of the said estate of her husband; because his estate is ended by an express limitation, and therefore the estate of the wife, being derived out of it, this can not continue longer than the original estate: P. 10, Ja. B., between Flavill and Ventrice, dubitatur upon a special verdict." Then follows this statement to the contrary: "If a feoffment be made to the use of J. S. and his heirs until J. D. has done such a thing, and then to the use of J. D. and his heirs, and afterwards the thing is done and J. S. dies, his wife shall be endowed: Per Anderson Le 168, in pl. 233 Mich., 31 and 32 Eliz. C. B." To this may be added Mr. Butler's note itself. Appx. 3 Tho. Co. Lit. (1), where he says: "If the estate is to continue only till a certain event, or is made determinable upon [more properly, determined by,] some particular event, the wife is to enjoy her dower or the husband his curtesy, after the expiration of the period to which the fee charged with the dower or curtesy is to continue," for which he cites the case in the note to Fitzh. Nat. Brev., 149, G., and the cases of Flavill vs. Ventrice, 1 Roll. Ab., 676 (doubtless for the dissenting opinions of Hutton and Heath), and Sammes and Payne's case: 1 Leg., 167; 1 And., 184; 8 Rep., 34; Gould's, 81. Which authorities, if they sustain what he cites them for, must be yielded to.

In the next place in regard to those estates defeated by conditional limitations. Mr. Washburn draws the following heart-rending pictúre for the student: "Butler has a very elaborate note to Coke., Lit., 241, a., in which he attempts to assist as he calls it, in clearing

up the complex and abstruse points of learning in which this question is involved." Judge Kent says, "that the ablest writers upon property law, are against the right of the dowress when the fee of the husband is determined by executory devise or shifting use." Atkinson states the law to be thus: "When the husband's estate is defeated by title paramount as by entry, for condition broken, by reason of a defective title in the grantor or by shifting use, the right to the dower is also defeated; but where the husband's estate has been defeated by executory devise it has been settled, rather anomalously, it has been thought that the widow shall, nevertheless, be entitled to dower. Preston leaves the point as doubtful. Burton says, "when the husband or wife has an estate in fee subject to be diverted by a shifting use or executory devise, it has been a disputed question whether these rights may not be enforced after the event, and notwithstanding the diverting and destruction of the estate upon which they are attached.

"One of the leading cases," continues Mr. Washburn, "upon this subject is Buckworth vs. Thirkell, which is said by Judge Kent to be opposed to the opinion of the ablest writers on property law: while, Ch. J., Best says, "that though questioned, it has become the settled law, and cites in that connection, Lit. § 53." 1 Wash. Real Prop. m. p. 213-214. Though recognizing the distinction between common law estates, and those arising under the statutes, the Professor does not offer a solution to the difficulty, and probably cannot, so long as he violates the principle by contending that dower should not be allowed after the determination of that class of base fees described herein as limitations. It being admitted that in these estates the seisin is only determined-not defeated ab initio, the whole doctrine becomes confused and inexplicable if dower is refused, otherwise it is clear and simple. Upon this principle also depends the doctrine of dos de dote peti non debet, as where the ancestor of a married man dies and he endows the widow of such ancestor of onethird of the lands which descended to him, and dies, his widow will only be entitled to a third of the remaining two-thirds, for when the heir endows the widow of the ancestor, the assignment relates back to the death of the ancestor, and defeats the seisin which the heir acquired by the descent of the land, so that the widow is in of the estate of her husband, and the heir is considered as having never been seised: 1 Cruise, Dig., 153. And also by analogy, the common law doctrine that a divorce a vinculo, bars dower, which was for sometime doubted. By this divorce the marriage was dis

solved ab initio, and no seisin beneficial to the de facto wife ever vested in the man. 1 Th. Co. Lit. m., p. 572. Id. 126, note D. And so when the husband was evicted by title paramount, the seisin was defeated ab initio.

Buckworth vs. Thirkell, 3 Bos. Pul. 652 in the note, decided by Lord Mansfield is the leading case on the subject of curtesy in estates defeated by conditional limitations, and though it is said to have made a noise in Westminster Hall, and has been much doubted by text writers and Lord Alvanley in the above case, it has never been overruled in England. In this case the rest of the court assenting, curtesy was allowed, though it is difficult, and, upon principle, useless, to conceive the distinction drawn by Lord Mansfield between a conditional and a contingent limitation. The dower case of Goodenough vs. Goodenough, in 1775, according to Mr. Preston, 3 Abst., 372, decided the same as the above, and the case of Moody vs. King, 2 Bing. 447, decided by Ch. J. Best, and an unanimous court, confirms these two cases, expressly overrules Lord Alvanley's doubts, and establishes beyond question the law of England on this subject. The text writers generally yield an unwilling assent to these cases, and say they make an exception to the general rule, but it is hoped that enough has been said to show that the doctrine is founded in principle, as well as by authority. It is hardly to be supposed that the case of Ray vs. Pung, 5 B. & Ald., 561, intended to overrule these cases. It must have been decided upon the grounds stated above, where it is quoted, else it would not have been passed with so little notice from the modern writers, and Ch. Kent especially, would not have stated that it proceeded upon the principle that the wife is not dowable of a trust estate.

The American cases, so far as can be ascertained, are nearly unanimous in following the English on this subject.

The Pennsylvania case of Buchanan vs. Sheffer, 2 Yeates, 374, and the Virginia case of Taliaferro vs. Burwell, 4 Call., 321, decided a few years after Buckworth vs. Thirkell, but without any reference to it, and in all probability, in ignorance of it, and of each other, head the list in allowing, the one curtesy, the other dower, in a fee determined by a conditional limitation. To which may be added Hay vs. Mayer, 8 Watts, 202; Grout vs. Townshend, 2 Hill, 554; Milledge vs. Lamar, 5 Desauss, 637; Northeut vs. Whipp, 12 B. Mon. 65; Kennedy vs. Kennedy, 5 Dutch. 185; Evans vs. Evans, I Penn. St., 190, and the moot court opinion of Professor Brocken

brough in Wilson vs. Wilson, reported in July number of this RE

VIEW.

It seems that the New York cases of Weller vs. Weller, 28 Barb., 588, and Hatfield vs. Sneden, 42 Id., 622, hold a contrary doctrine, but they stand alone as far as can be discovered. The Judges were possibly influenced by the opinion of Ch. J. Kent, as Buckworth vs. Thirkell, is examined in the latter. The cases are not present, but admitting them in their full force they are overbalanced by a very decided weight of authority.

Professor Brockenbrough, in his moot court opinion, hinted at the principle herein applied, and it is perhaps to be regretted that he did not consider "the great point in the case," more upon principle, than upon authority, and apply it to the various classes of estates.

It may also be added that the views above stated, were imbibed from the learned Professor Minor of the University of Virginia, and whatever of merit is in them should be attributed to him.

EDMUND S. MALLORY.

Jackson, Tenn.