The sale by the executor of Dudley Prescott of the land devised to John alone, under his license to sell for the payment of debts, was lawful. No exception has been suggested to it, except that the money should have been raised equally from the lands devised to John and Hazen. There is certainly no objection to an attempt on the part of the executor to equalize the burden of the debts in such case by a sale of ratable proportions of the interests of each devisee whose land is chargeable in the first instance. But it is apparent, that in many *342cases this could not be accomplished without injury to the remaining property by causing an inconvenient division of it. It is clear that the executor is not obliged thus to sell to the injury of the estate. He should not sell the part devised to one, from favoritism or any othor sinister reason.
The devisees may join in paying the debts and saving the lands from sale. If they can not agree upon this and the land of one is sold, he may have contribution, because the debts are a common charge upon the whole estate. Provision is now made by statute for an adjustment of the proportion of each by the judge of probate. Rev. Stat., ch. 166, sec. 13. But if one is Avilling to pay his share for the purpose of saving his land from sale, the vei-y object which it is proper to seek, that of equalizing the burden of the debts, is thus far accomplished and the necessity of coxiti’ibution avoided. John Pi’escott has no occasion to complain, as there is no evidence that his land was subjected to more than its share.
The remaining question is, whether Horatio Gf. Prescott, the plaintiff’s husband, took an estate of which she is dowable. Avery ptirchased at the executor’s sale, in pursuance of an agreement with John, by which he was to convey to him upon his making certain payments. It is not stated whether the agreement was or was not in writing, nor is it matei’ial to this case whether the agreement could have been enforced by John. It was not a resulting trust ai’ising from the payment of the considei’ation/for Aveiy paid his own money upon the purchase. He took the fee of the land, with an interest in it; for he not only paid for it and Avas to hold until the purchase money was paid, but until a further debt due to him' was paid also. The sale through which he took the title was not from John holding the land as devisee, but one adverse to John’s title and which defeated it. It is not the case of a mortgage therefore, taking the shape of an absolute conveyance with an agreement to re-convey. It *343is, in substance, an arrangement by which Avery was to purchase the land, and John was to have the right to purchase of him upon payment of the consideration paid and of the debt due.
The plaintiff’s husband, by a subsequent agreement between the parties, paid the amount to Avery and took a conveyance of the fee to hold upon the same terms that Avery held it. The date of this deed is not stated, nor does that or the subsequent conveyances appear to be material. The case may be regarded as if Horatio had released to John and John to the defendant. Neither party can derive any advantage, in this case, from the conveyance by the husband to Gale and others to secure the payment of money due to them and their subsequent release.
It was formerly held that the wife of a trustee was dowable at the common law. See 4 Kent’s Com. 42.
But it is now settled that a wife is not entitled to dower in a trust estate, any farther than her husband had a beneficial interest therein, and if she attempts to enforce such a claim at law, equity will restrain her. 4 Kent’s Com. 43; Hinton v. Hinton, 2 Vesey Sen. 683; Powell v. Monson and Brimfield Manuf’g Co., 3 Mason 364; Robinson v. Codman, 1 Sumner 129 ; Cooper v. Whitney, 3 Hill’s N. Y. 95.
But, it is said, it seems if a feoffment be made to a husband upon condition that he enfeoff J. S. and he does this and dies, his wife shall be endowed; for his intention does not appear to exclude the wife, and if it did appear, still it seems that this would not change the law. 1 Iiolle’s Abr. 678, Bower I, 2; and it has been recently held that if the husband is rightfully seized in fee, and beneficially so, though for a short time, the wife by such seizin becomes entitled to dower. Stanwood v. Dunning, 14 Maine 290.
The husband here was seized to his own use in fee, having a beneficial interest in the whole estate. The fact *344that John by the agreement had a right to purchase it by the payment of certain sums gave him no interest in it. There must therefore be
Judgment for the demandant.