We shall first consider the claim to dower in the intestate’s interest in the trust half of the Hunter property. This must depend upon the character of the title or right to that interest at the time of his conveyance of it, or at any time previous.
A few plain propositions may be stated, about which there is no dispute. In order to entitle the widow to dower in this property, the husband must, at some time during coverture, have been seized of an equitable estate of inheritance in the property. That is, an equitable title to this property must have presently existed in him, which title, had he died at the moment, would have descended to his heirs-at-law as real estate, instead of going to his personal representatives as a chattel interest or chose in action. Again, it is agreed on all hands, that while the title to the property remained in Butler, the first trustee, the whole title to it as land, both legal and equitable, was in him, and the cestuis que trust had only a right to its avails or proceeds. During that time, their right was a personal right—it was personal property, and would not descend to their heirs. This was made so by the express agreement of the parties. They were partners in a speculating enterprise, and this property constituted their stock in trade; and in such a case, there is no dispute that the character of personalty is stamped upon the property for the purpose of fixing the character of the interests of the several partners, although it was in truth real estate. Again, there is no dispute made that it was competent for the parties in interest, at any time they chose, to change the character of their interest in this property, from that of a personal right to the proceeds of it, to an equitable title to it. They could, in other words, divest this property of its artificial character of personal property, and change it back to its original and natural character of real estate. If this was done at any time, then the property became a hereditament; it was an estate of inheritance, and descended to the heir, simply because it had become real estate and had ceased to be personal property. And if this was done, there is still the question to be considered, was the equitable title to this property vested in the, husband?—was he seized of this equitable estate, or did something remain to be done by him, or the cestuis que trust, or the trustee, or any one else, before this equitable title was vested in him, or, to express it differently, before his right to it was complete ? If the character of this property was so changed, and the title to it so vested in the cestuis que trust, it was done either by the conveyance from Butler to Bushnell and Nicoll, or in the declaration of trust which they made on the 12th of April, 1842, or by the specifications of the purposes of the trust made by the cestuis que trust on the 25th of the same month Upon the true meaning and legal construction of these instruments this branch of the case entirely depends. The first is a deed from Butler to Bushnell and Hicoll as joint tenants, and not as tenants in common, and describes them as trustees. With these exceptions, it is an ordinary conveyance, without any specification of the trusts subject to which they were to hold the property. These were first stated by the trustees by the declaration of 12th of April, 1842, twelve days after the date of the deed, and are in these words:
“Whereas, Charles Butler, of the city of New York, has, by deed dated April 1,1842, duly executed by the said Charles Butler and Eliza A., his wife, conveyed to us, E. A. Nicoll and O. Bushnell, certain real estate, situate, lying and being in the city of Chicago, that is to say, the undivided half part of certain lots, pieces and parcels of land, being the whole of the lots remaining unsold of the Hunter property so called, reference being had to the said deed will more fully appear; and whereas, the said premises have been conveyed to us in trust for certain purposes, that is to say, we hold the same in trust for Edward A. Hicoll, who is entitled to six-eighteenth parts thereof, the whole being divided into eighteen parts; Charles' Butler, in trust for the assignees of Simeon Hyde, four-eighteenth parts thereof; John S. Bussing, of the city of New York, two-eighteenth parts thereof; Chester Clark, of the same place, two-eighteenth parts thereof; Benjamin F. Butler, one-eighteenth part thereof; William B. Ogden, one-eighteenth part thereof; and Barton White, of White Plains, Dutchess county, two-eighteenth parts thereof; and whenever partition shall be made of said premises among the said parties in interest, we shall and will convey to each of the persons before named, his heirs and assigns, or to such person or persons as he or they shall or may designate to receive the same, his part or share of said premises in severalty by deed with covenants of warranty against our own acts only; and partition thereof shall be made, if practicable, within six months from the date hereof; and if before the partition and conveyance of said premises, or any part thereof, as aforesaid, any of the same shall be sold, we shall and will account for the proceeds of said sales to the parties aforesaid, according to their respective rights and shares, first paying all the expenses, charges, taxes, assessments, etc., incident to the care and management of the said property and the execution of this trust; but it is not expected or required of us, the said trustees, that we, or either of us, shall go to Chicago for the purpose of effecting a partition of said premises; and it is understood and agreed that we are to be liable as trustees only, severally, and not jointly, for so much money as may come into our hands severally and respectively.
“ Witness our hands and seals, this April 12, 1842.
(Signed) BD’D A. NICOLL. [seal.]
ORSAMÜS BUSHNELL. [seal.]’’
This first declares absolutely that they hold, in trust for ¡Nieoll, the husband of the petitioner, one-third of the property, and in the same way naming the other eestms que trust, and specifying the interests of each. Had this declaration stopped there, it would have left it as a simple and ordinary case of trust, in which two trustees hold the legal title to land for eight eestuis que trust, owning the equitable interests as tenants in common in different proportions, and upon them would have devolved the simple duty of performing the trust by the conveyance of the legal title to the eestms que trust, either by one deed, specifying the interest of each, or by separate deeds to each, of his undivided portion. We say, had the declaration stopped there, such would have been the duties of the trustees and such the rights of the beneficiaries. But it did not stop there; it proceeded to impose other and additional duties upon the trustees. It further provides, that whenever partition shall be made of the premises, they will deed in severalty to each, the separate portion set off to him. Was this clause a limitation of the rights of the beneficiaries and of the duties of the trustees, as to any of those rights and duties, and providing others in their stead, or, was it an enlargement of those rights and duties, leaving those which existed without this clause still in force ? The same inquiry may be made in reference to the next specification of duty, which is, that if any of the property shall be sold before partition, they, the trustees, will account for the proceeds to the respective parties, in proportion to their respective rights. Here is an implied duty on the part of the trustees to convey the property thus sold, to the purchasers, as well as to account for the proceeds. By whom were these sales to be made ? Hot by the trustees, for they had as yet no right to sell the property of their beneficiaries in this, more than a trustee who holds a title to real estate in trust for another has a right to sell it, without authority from the cestuis que trust. These sales, then, were to be made by the cestuis que trust, and in the event of such sales the trustees assumed the duty of receiving and distributing the proceeds. How, did the assumption of these duties take away or limit the right of the cestuis que trust, to have the property conveyed to them as tenants in common, should they at any time desire to have that done? Or did it relieve the trustees from the duty of so conveying at the election of the cestuis que trust ? We think not. While the trustees might voluntarily assume new duties, they could not throw off and relieve themselves from old ones. Such we understand to be the legal effect of this declaration of trust by the trustees.
On the 25th of April, 1842, the cestuis que trust made the following specification of the trusts assumed by the trustees :
“Know all Men by these Presents, That whereas, Charles Butler, of the city of New York, counselor at law, and Eliza A., his wife, did, by an indenture bearing date the first day of April, in the year of our Lord one thousand eight hundred and forty-two, at the request of us, the undersigned, convey to Edward A. Nicoll and Orsamus Bushnell, of said city, the following pieces, parcels and lots of land, that is to say
.[Then follows a description of the land, when the instrument proceeds] :
“ Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof—as by the said indenture will more fully appear, reference being thereunto had: to have and to hold the same to the said Edward A. Mi coll and Orsamus Bushnell, and the survivor, and the executors, administrators and assigns of such survivor, upon the trust, however, expressed and declared in a certain declaration of trust, executed in writing, by the said Edward A. Micoll and Orsamus Bushnell, and sealed with their seals, bearing date the eleventh day of April, 1842, as by reference to the said declaration of trust will more fully and at large appear.
“And whereas, a declaration of the objects and intents of said trust is desired and required of us by said trustees, with a view to express and define the powers of said trustees:
“Mow, therefore, these presents witness, and we the undersigned, cestuis que trust of the estate so granted to said Micoll and Bushnell, as trustees, do hereby declare and agree to and with said Edward A. Micoll and Orsamus Bushnell, that the objects and intents of said trust are as follows, viz.: That whenever partition shall be made of the said trust premises amicably by us, or by law, the said trustees shall and will convey to each of us in severalty, our heirs and assigns, or to such person or persons as we severally, or our several heirs or assigns, may designate, our several share of said trust premises, by deed with covenants of warranty against our own acts only; and partition thereof shall be made, if practicable, within six months from the date of said declaration of trust so made by said trustees; but it is not required or expected of said trustees, or either of them, that they will personally do anything to effect such partition, either amicably between ns, or by law, but only that they shall execute the conveyances in partition of our several shares to us, when required, after partition has been made by us or our authorized agent, or by legal proceedings, except that if legal proceedings become necessary, then the trustees shall use their names, and promote such partition in all proper ways. And further, that the said trustees may, before partition, sell and convey in due form of law, the said trust premises, or any part thereof, to any person or persons, for such prices, and upon such terms of payment as they may deem fit and proper, and may delegate and appoint, by letter of attorney, all the' above powers to William B. Ogden, of Chicago; or in case of his death, sickness, absence from Chicago, or refusal to act, to any other person or persons, without being responsible for any acts, receipts, or defaults of said attorney or attorneys, that may happen, without the wilful default of the said trustees.
“ They, the said trustees, accounting to us for all the proceeds of such sale or sales, that shall come into their hands, in the proportions in which we are entitled to the same, first paying and retaining to themselves all the expenses, charges, taxes, assessments, etc., incident to the care and management of said trust property, and the execution of. the said trust, incurred, made, paid, or sustained by them, the said trustees, or their attorney, and that the said trustees shall be liable only, severally and not jointly, for so much money as they may severally receive.
“ In witness whereof, we have hereunto set our hands and seals, this twenty-fifth day of April, in the year of our Lord one thousand eight hundred and forty-two.
JOHN S. BUSSING. [seal.]
EDWARD A. NICOLL. [seal.]
W. B. OGDEN. [seal.]
B. F. BUTLER. [seal.]
CHARLES BUTLER. [seal.]
CHESTER CLARK. [seal.]
BARTON WHITE. [seal.]”
This instrument teaches us, that the deed from Butler to Bushnell and E"icolI, was made at the request and direction of the beneficiaries; and that they sanction the declaration of trust made by these trustees, which has been already quoted. It has importance on this account, while some material changes are made in the character of the trust itself and in the authority vested in the trustees. It declares the objects of the trust to be, that whenever partition shall be made of the premises, the trustees shall convey to each in severalty, his heirs and assigns, or to such person as he or his heirs or assigns may appoint, his share in severalty. And further, this instrument expressly authorized the trustees to sell and convey the whole or any portion of the premises, and to appoint a substitute to exercise this last specified power, without being responsible for his default, but only for their own wilful defaults. Eor the proceeds of such sales the trustees are required to account to the cestuis que trust severally, for their several proportions of the moneys thus received.
While this paper contains the same provision as to the duty of the trustees to convey to the parties in interest severally, their respective proportions, on partition being made, the language is such as to indicate, to some extent at least, that they shonld not perform the trust till such partition should be made, except by sale of the lands and disposition of the proceeds. Was it, then, the intention of the eestuis que trust to place their equitable interests in this property beyond their reach or control, except in the particular mode here specified, that is, till partition should be made, or till the property should be sold by the trustees, and the money divided ? Then, from that time forth the trust was executory, and they were not seized of the equitable title, that is, they were not in a position to require the performance of the trust, by the conveyance of the legal title to the cestuis que trust. They had no right to the res as it was. They had no right, collectively, to its proceeds in money even ; but their rights became separate and individual, each one having an individual right to a conveyance of his separate portion of the land after partition, and a right to none of it, till then, but a right only to his proportion of the proceeds of sales, made before partition. With this construction of this paper, this presents one of the best examples of an executory trust to be anywhere found in the boobs, except in cases arising on the construction of marriage settlements or wills. We have never before been called upon to examine particularly, the distinction between trusts executed and trusts executory ; able, logical and perspicuous, as they were. We confess our ideas on the subject were somewhat confused. We have, with patient labor, investigated the subject. There is a well settled distinction between what are called executed and executory trusts, founded, no doubt, to some extent upon artificial reasons, and, as is usual when such is the case, not always of the most easy application. Its purpose and advantage is perhaps more generally to enable the courts to avoid the rule in Shelley’s case, for the purpose of giving effect to a devisor, grantor or donor. In one sense, all trusts are executory, or to be executed; that is, something has to be done to perform the trust, that the cestui que trust may enjoy the benefits of the trust to which he is entitled. As where one holds a legal title in trust for the benefit of another in whom is already vested the equitable title, with the right to be clothed with the legal title. But where the beneficiary is not yet clothed with such an equitable title, but has a mere right to have some act done, which will vest in him such equitable title, then the trust is called ex-ecutory, because of the necessity of the performance of this intermediate act. These might, perhaps, have been as well designated simple and compound trusts, or direct and remote trusts, or any other expression denoting the different degrees or gradations, between the trustee and the cestui que trust. In the latter, the rights of the cestui que trust are less direct and immediate, and the powers, duties and obligations of the trustee are ordinarily greater or more extended than in the former. Human affairs are so complex and variant—the objects of creating trusts may be so multifarious, and expressed in such variant terms, that there may be diffichlty, sometimes, in assigning a particular trust to its proper class. In one case, this intermediate act may be so clearly expressed, as to leave no doubt that an executory trust was intended, while in another it may be so contingent, discretionary or so vaguely and doubtfully expressed, as to make it difficult to say that it is not an executed trust. In such a case, the courts will give it whichever character will best subserve the apparent purposes of the creator of the trust. How, if we assume that the cestuis que trust, by this last paper by them executed, intended to provide that the trustee should not convey the land to them in the condition it then was, but only after partition should be made, and then to them in severalty, or should sell it and divide the proceeds among them, it became from that moment an executory trust, because there was something to be done, before they were entitled to a conveyance. They had no vested equitable title to the land, but they had a mere right to have something done, which would give them an equitable title, or rather they had a right which, upon the performance of an act. by themselves or by the courts, would ripen into an equitable title, or into several equitable titles, to different portions; or, if the trustees chose, they were authorized to sell the land, in which case others had rights severally to their respective portions of the purchase-money. If these were the only rights which these cestuis que trust had to or in this property, then we say, this was an executory trust; and dower could not attach to the property thus held, and for the manifest reason that the husband had no title, either legal or equitable, to the land.
But we must now examine and see whether dower had not already attached to this land, before this specification of the trusts by the cestuis que trust. If it had so attached, this subsequent act of the husband could not divest it. It is a universal rule, that when the inchoate right to dower is once vested in the wife, that right cannot be divested, except by her own voluntary act, performed in the mode prescribed by law. Let us return, then, to the first conveyance from Butler to Bushnell and Nicoll. Previous to that we had already seen the subject of the trust was personal property, because the object of the trust was a partnership transaction or speculation.
At first, it did not appear that this conveyance was made with the approbation and instruction of the cestuis que trust, but for aught that did appear up to the 25th of April, 1842, twenty-five days after the deed was made, this conveyance may have come from the perverse motion of the trustee himself, in violation of his duty as trustee, and without the sanction of his constituents. Had such been the case, it may be, that the new trustees would have taken it upon the same trust,.and for the same purposes for which it was held by Butler. At least it would seem reasonable, that as the act was done without their consent, the beneficiaries might insist that the character of the property should not be thereby changed, although as the trust, as it existed in Butler, was accompanied by a special confidence reposed in his discretion, they ought not to be compelled to treat the property longer as personalty, and intrust the same responsibilities and powers in the new trustees. But it is not necessary to determine what would have been the effect of that conveyance upon the character of the property, which, although real estate in fact, was by the parties and the law treated as personal property, had it been made without the knowledge and sanction of the cestuis que trust, for it now appears that it was done with their approval and by their direction. That conveyance then must have its full and legitimate influence in the determination of the question as to whether the property should still be considered personal property, or whether it was thereby re-converted into real estate. What, then, was the effect of that deed ? What were the relations between the new trustees and the beneficiaries ? What were the duties of the former and the rights of the latter ? This is the deed:
“ This Indenture, Made the first day of April, in the year of our Lord one thousand eight hundred and forty-two, between Charles Butler, of the city and county and State of Mew York, counselor at law, and Eliza A., his wife, of the first part, and Edward A. Micoll and Orsamns Bushnell, of the same place, trustees, of the second part; Witnesseth, that the said parties of the first part, for and in consideration of the sum of ten dollars lawful money of the United States of America, td them in hand paid, by the said parties of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm unto the said parties of the second part, and to the survivors of them, and the heirs and assigns of such survivors forever, all and singular the following lots, pieces, and parcels of land, situate, lying and being in the city of Chicago, county of Cook, and State of Illinois, that is to say
[Here follows a description of the property conveyed];
“ Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any way appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in or to the above described premises, and every part and parcel thereof, with the appurtenances; to have and to hold the above granted and described premises, with the appurtenances, unto the said parties of the second part, as joint tenants and not as tenants in common, and to the survivor of them, and to the heirs and assigns of such survivor, to his and their own proper use, benefit and behoof forever. And the said Charles Butler, for himself, his heirs, executors, administrators, doth hereby covenant, promise, and agree to and with the said parties of the second part, trustees as aforesaid, and to the survivor of them, and the heirs and assigns of such survivor, that he hath not made, done, committed, executed or suffered any act or acts, thing or things, whatsoever, whereby, or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or, at any time hereafter, shall or may be impeached, charged or incumbered in any manner or way whatsoever.
“ In witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written.
CHARLES BUTLER, [seal.]
ELIZA A. BUTLER, [seal.]”
This it will be seen is a trust deed in the simplest form, (if indeed it appears on its face to be a trust deed.) The trust is not specified. There is no limitation or qualification to it. It is left entirely to the law to characterize it, or to say what are the duties of the trustees, and what are the rights of the cestuis que trust. They must necessarily be the same as they would be in any other simple trust, where one party holds the legal title to land, in trust for another. If A conveys land to B in trust for C, that is simply a naked executed trust. There the duty at once arises in B to convey to C, which a court of chancery would at once enforce. Is it possible to distinguish such a case from the one before us? That is this case literally. Butler conveyed the legal title to these premises to Bushnell and Hicoll in joint tenancy, in trust for his cestuis que trust, without specifying what they shall do with it, or how long or for what purpose they shall hold it. And this was done by the direction of the cestuis que trust. Then it must have been ■their intention to leave this conveyance to the full operation and influence of the well-known principles of law. Had they designed otherwise—had they designed any special trust,— that the trustees should assume any particular duties or perform any particular functions, other than those raised or imposed by the law itself, upon such a conveyance, it was their duty, and they no doubt would have caused them to be inserted in the deed, or specified in a separate paper, executed at the same time with the deed, and so made to become a part of it. The deed itself could only be controlled by another paper, executed at the same time withrit, so as to form a part of it. And the separate papers, executed subsequently on the fourteenth and the twenty-fifth of the same month, can have no influence upon the construction or effect of this deed, nor upon the equitable estate thereby created, prior to their execution. They might, and no doubt did, change the character of the trust, but they could not have a retroactive effect, especially so as to affect in any way the rights of others not parties to them, vested or secured by that deed, or between the time of its execution and these subsequent declarations. If by this deed, the character of this property was re-converted from personalty to realty; if by it an executed trust was created, whereby an equitable estate of inheritance was vested in the cestuis que trust, during those twelve first days of April 1842, then during that time, the husband had an estate in the premises upon which the right of dower attached. If she would have been dowable of her husband’s interest in these lands, had he died during these twelve days, then that, right still continues, for she has done no act to divest herself of it, and as has been before said, that right of dower having once vested in the wife, it could not be divested, except by her own voluntary act performed in the mode specified by our statute. By the application of the most familiar principles of law to this deed, executed as it was by the direction of the cestuis que trust, we see no way of escaping the conclusion, that they were thereby seized of the equitable estate in thebe lands. As the trust then stood, there was no act then to be done by the courts, by themselves, by the trustees, or by any one else, to complete their equitable title. There was no partition provided for, there was no conveyance directed to be made to any one, there was no sale of the land, and distribution of the purchase-money directed or authorized, nothing remained to be done, in order to vest the equitable title in them, and nothing remained to be done to unite in-them the legal with the equitable title, but the simple conveyance of the legal title to them by the trustees. This was the only authority conferred upon or power vested in the trustees, and the only right created in the cestuis que trust by this deed. Here was nothing to characterize this as an executory trust, but every ingredient to mark it as an executed trust. If by this deed the equitable estate was not vested in the beneficiaries, it is not easy to conceive a case, in which it would be. It cannot be said, that there was the latent intent of the parties at the time the deed was executed, to give this trust the character into which it was moulded by those subsequent papers, for even those speak in the present tense, and do not profess to have a retroactive operation. If such latent intent was entertained when the deed was made, it was not then executed, nor till at least twelve days subsequently. That an equitable estate of inheritance was designed to be created by this deed, and continued under the declaration and specification of trusts dated the 12th and the 25th of April, there can be no dispute; both these papers, in express terms, declare that the trusts shall be performed to the heirs of the cestuis que trust. That it was the design of these papers that the right, title, interest or claim, whatever it was, which the beneficiaries had in this property, should' descend to their heirs, instead of going to their personal representatives, is placed beyond all dispute by the express language of these papers. This of itself is sufficient to show a design to re-convert the property into real estate. In any aspect in which we can view this case, we think the complainant is entitled to have her dower assigned in one-third of the trust half of the Hunter property.
If we are correct in our conclusions thus far, it necessarily follows, that the complainant is entitled to dower in the interest which her husband owned in the Bard trust property. Indeed, if we lay out of view the papers executed on the 12th and the 25th of April, which we have in fact done, the cases are precisely alike. The only difference in the deeds, is that in the first, the word “ trustees ” is inserted after the names of the grantees, while it is not in the latter deed. But in legal effect, the deeds are precisely alike; whatever estate would be created in the cestids que trust by the one, would also be created by the other. This last deed was also executed by direction of the beneficiaries, and by it was created in the cestuis que trust, an equitable estate of inheritance, which by our statute is subject to dower.
Her right to dower in the country lands is not disputed.
The only remaining question is, whether the complainant is entitled to damages because her dower was not assigned in pursuance of her demand on the 29th day of January, 1859. Upon this point, no serious question has been or could be made. Although the defendant refused to assign dower in the utmost'good faith, believing she was not entitled to it, yet the claim to damages is the same as if her right had been fully appreciated. She is undoubtedly entitled to damages for the delay, since the demand, as to all the premises in which it was his duty to assign dower, under that demand.
The decree must be reversed, and the suit remanded.
Decree reversed.