Hepburn's Appeal

The opinion of the court was delivered, October 20th 1870, by

Thompson, C. J.

The facts bring this case so certainly within the principles of Freyvogle v. Hughes, 6 P. F. Smith 228, and Dodson v. Ball, 10 Id. 492, that we need do little more than refer to them as authority for our conclusions in it. The trust mentioned was of the wife’s sole estate existing before marriage, and its purpose was manifestly for the purpose of freeing it from all dominion and control of her husband during life, and giving to her the issues and profits to her own separate use, with power tc devise it, notwithstanding coverture, to whom she pleased, and on failure so to do, that it should go to her heirs. These restrictions had reference only to a state of coverture ; when that ceased they ceased, for there was no other purpose in law existing for their continuance. They came into existence to protect her rights of property during coverture not to extinguish them, and when the purpose was subserved her control necessarily revived. By operation of law her legal and equitable titles were united; there was nothing to keep them apart. There are innumerable decisions to this effect. The heirs were not purchasers under the terms of the trust; they would in any event only take this through the cestui que trust, and not by title paramount. There was nothing in any of the proceedings substituting the appellant for the original trustee, or in the decree for the sale of the real estate, which in the least change the relation of the cestui que trust to the trust estates. If the duties of the trustee were in any respect changed by the conversion of the property into money, her rights were not and could not be. The Act of Assembly, under which the sale was ordered, carefully provides that no change in the rights of a cestui que trust shall result from any change in the nature of the property. The court below was certainly right in decreeing in favor of the appellee, Mrs. Burns, as to the trust-money in the hands of the appellant. The proceedings in the case being in equity, it was the duty of the court to dispose of the costs as it might deem right. As there is nothing to show that this was not done, we have nothing to correct — we cannot presume against the accuracy of the court in a proceeding in equity any more than in a judgment at law; the error must be made to appear, and that was not the case here. Seeing nothing to change, alter or correct, we must affirm the decree of the court in this case.

Decree affirmed, and appeal dismissed at the costs of the appellant.