case chaplin v chaplin Lord chancellor Talbot Eq can ab pl the wife of  beneficiary and trust not to be endow if a rend de to make new be grant in  tail without any remainder over and tenant in tail take wife and die without  issue the wife shall not be endow because the thing out of which the dower be  to arise be not in be by if the rend be grant in tail remainder over tenant in  tail of a rend grant de to make new without any remainder over suffer a  recovery this will not pass a absolute but only a determinable fee in this  long cause among many other be the follow question the lady Hanby the  grandmother of porter chaplin be seize in fee convey diverse land to the use  and intent that certain trustee in the deed name shall receive and enjoy a  rend charge of pound per annum to they and their heir with power to distrain  for the say rend and to enter and hold the land on nonpayment for forty day  and then the say rend be to be to the use of porter chaplin entail male  remainder to the use of the same person that have the land in fee porter  chaplin to who this estate tail be limit in the rend die leave issue sir John  chaplin who intermarry with the plaintiff the lady chaplin and afterward die  without issue male whereupon one question be whether the plaintiff the lady  chaplin be dowable of this rend of which her husband die seize in tail male  peer William and the court hold that suppose this be a rend create de to make  new the remainder in fee whereof be extinguish by a limitation of it to those  that have the land such rend be determine by the death of the husband tenant  in tail and have no long any existence the wife can be endow of that which be  not in be but that it be otherwise where tenant in tail of land marry and die  without issue whereby that estatetail be determine for the wife in that case  shall be endow notwithstanding because the land be in be though the estate  tail therein be determine and the dower be in some respect a continuance of  the estate tail so if a rend in be be grant to a in tail remainder to b in fee  and a marry and die without issue the wife shall be endow or if a rend de to  make new be grant to a in tail remainder to b in fee which have be adjudge a  good remainder and a marry and die without issue his wife shall be endow  moreover the court conceive that if such a refit de to make new be grant in  tail without any remainder over and the tenant in tail suffer a recovery  thereof this recovery though it will turn the estate tail into a fee yet the  same will pass but a determinable fee which must end on the death of the  tenant in tail without issue for the grantor never agree to charge the land  any further with the rend and it will be a wrong to the tertenant to burden  his estate with the rend for any long time see Lutw hark go Litt a note a note  peer William but it be afterward disclose to the court that the legal estate  of the rend in fee be in trustee in trust for porter chaplin in tail male and  that on his die the peer William er p trust of this estatetail descend to his  only son sir John chaplin in tail the husband of the plaintiff the lady  chaplin who inter all bring her bill for her dower of this rend and then the  case be no more than whether the wife of a beneficiary and trust in tail shall  be endow whereupon for the plaintiff be cite first the case of Sweetapple v  bindon vern where a woman bequeathe money to be lie out in land to be settle  to the use of her daughter and her child and if she die without issue to go  over the daughter marry the plaintiff by who she have issue but she and the  issue be both dead and the money not lie out on a bill bring by the husband  the Lord Cowper decree the money to be consider as land and the plaintiff to  be tenant by the courtesy second Otway v Hudson vern where tenant in tail of a  trust of a copyhold estate have desire the lord to admit he and be refuse and  have bring a bill against the trustee to have a surrender make he of the legal  estate die in that case though the husband be never seize of the legal estate  of the copyhold yet the widow be decree her free bench three the case of  Fletcher v Robinson as cite in precedent in chancery where I S fall into some  trouble for have   a warrant convey his land to his young son in trust only to  secure it against a forfeiture and afterward be free from trouble convey the  premise to his old son and die the old son peer William die leave a widow and  no issue whereupon his widow be nonsuit at law bring her bill in equity and  have a decree for her three fourthly that nothing be more know than that a  dowress shall have the benefit of a trust term attendant on the inheritance  against a heir as appear from the case of the lady Dudley v the Lord Dudley  precedent in chancery Higford v Higford Paschce abridgement of case in equity  and more particular from that of Wray v William vol last it be say to have be  agree and settle that man shall be tenant by courtesy of a trust and it will  not be pretend that there be less strong reason to be urge in favour of a  dowress but after much debate and consideration the Lord chancellor be of  opinion against the plaintiff in this point observe first as to the case of  Sweetapple v bindon that it may be right to allow a husband to be tenant by  the courtesy of money to be lie out in land since money agree to be lie out in  land be as land in equity where every thing direct by a will or agree by  article to be do be look upon as do second that in the case of Otway v Hudson  the decree be not make upon a general rule that every widow of peer William a  beneficiary and trust have a right to dower but upon the great and obstinate  delay of the trustee who refuse to convey and stand out in a bill in this  court require he so to do three that the case cite from precedent in chancery  seem a strange case and a most extraordinary trust for if the father the  beneficiary and trust shall have come for a performance of that trust he can  never have recover but the son shall have d the land discharge it be a  fraudulent trust make to protect the estate against a forfeiture this probable  be a short note of the case for the private use of some gentleman and can be  of service to no other fourthly that the case of a trust term set up in  opposition to dower be nothing like the present for there the judgement be  that the plaintiff in dower shall recover but that to be remiss execution  during the term and if the trust of such term be satisfy and at a end the term  ought not to subsist in equity to stop a favourite right at law as dower be  whereas in the case of a trust there be no judgement at law that the wife  shall recover her dower for the husband have no legal estate nor consequent  any thing of which the wife be dowable and in the case of a purchaser nay even  with notice the court will not relieve a dowress against a trust term that  stand in her way Eq can ab pre Charles can in parliament his lordship take  notice that by the preamble of the statute of use Henry c it be recite that by  mean of these use the wife be defeat of her dower by which it appear that peer  William the wife of beneficiary and trust be not dowable at commonlaw and if  so then as at commonlaw a use be the same as a trust be now it follow that the  wife can no more be endow of a trust now than at commonlaw and before the  statute she can be endow of a use so that here be the opinion of the whole  parliament in the point that it have be the common practice of conveyancers  agreeable hereto to place the legal estate in trustee on purpose to prevent  dower wherefore it will be of the most peer William er p dangerous consequence  to title and throw thing into confusion contrary to former opinion and the  advice of so many eminent and learned man to lot the claim of dower opinion  upon trust estate that he take it to be settle that the husband shall be  tenant by the courtesy of a trust though the wife can not have dower thereof  so determine by his lordship in the case of Caseburn v English about this time  on a appeal from the roll atk for which diversity as he can see no reason so  neither shall he have make it but since it have prevail he will not alter it  that there do not appear to be so much as one single case where abstract from  all other circumstance it have be determine there shall be dower of a trust  vide bank v Sutton ante vol for which reason his lordship dismiss the bill as  to such part of it as claim dower of the trust of this rend another point in  this cause be that porter chaplin make a mortgage for year and then entail the  estate mortgage on himself and the heir male of his body remainder to his  brother Thomas chaplin in peer William tail male and die leave issue one  infant son who suffer the interest to incur on the mortgage for several year  and die just before he come of age leave a personal estate whereupon it be  object that the executor of the infant son see their testator take the rend  and profit of this estate ought to keep down the interest the rather for that  he never have it in his power to bar the remainder by a recovery Lord  chancellor there be no precedent of a tenant in tail be oblige to keep down  the interest on a mortgage a tenant for life be without doubt compellable to  do it but as a tenant in tail have a estate which may last for ever and the  remainder over be not asset nor regard in law and as such tenant in tail have  a power over the estate to commit any waste or spoil thereon a court of equity  have never enjoin he to keep down the interest vide Amesbury v brown ves ware  v Polhill Ves burgess v mawbey turn wherefore his lordship refuse to make any  order upon the executor of the tenant in tail to pay any arrear of interest  though it appear there be near twenty year interest due and though in this can  the tenant in tail die during his infancy and consequent before it be in his  power to have bar the remainder by a recovery for though the objection be that  there can be no remainder of that whereof there be no reversion yet the intent  of the party give the rend de to make new first a be for the whole and then  the lesser estate be carve out of it by holt chief justice salk week v peach  this will serve to warrant the resolution of the master of the roll in the  case of bank v Sutton vol for however that learned argument may be consider as  tend to prove in general that a woman ought to be endow of a trust yet in that  particular case the legal estate be by the will of the donor direct to be  convey to the beneficiary and trust at his age of twentyone and he live to  that age accord to the principle above mention his widow be well entitle to  dower afterward in the case of shepherd v shepherd hear in march before the  Lord Talbot the same point come in question the attorneygeneral and Mr  fazakerly who wear of counsel with the widow apprehend it to have be so clear  settle by the above resolution that they both decline speak to it