208 HIGH COURT OF CHANCERY.

of them, and also an equivalent for her proportion of the sales
of the lands sold to pay the mortgagee ? It would be difficult to
make out such proposition, and yet it would seem to follow
from the position, that a widow, out of the proceeds of land
sold to pay a debt, secured by a mortgage in which she has unit-
ed, is entitled to an allowance, calculated upon the whole pro-
ceeds of sale, and not merely upon the surplus, after paying the
mortgaged debt.

The law intends to give the widow one-third of the husband's
real estate, by way of dower, and as a provision for her support,
but she takes it subject to liens created prior to the marriage,
or to such as she consents to, after the marriage, in the mode
pointed out by the legislature, and she can take no more.

If the contrary doctrine prevail, it will not unfrequently hap-
pen, that the widow will not get one-third only, or its equiva-
lent, but the whole surplus, after paying the liens, will be re-
ceived by her, to the prejudice of the heirs at law, and creditors.

The widow was, therefore, allowed by the decree, one-four-
teenth of the surplus only of the proceeds of sale after deduct-
ing the mortgage debt with interest.

[No appeal was taken from this decree.]

ROBERT SEWALL

vs. MARCH TERM, 1848.
SYLVESTER J. COSTIGAN ET AL.

[POWERS AND DITTIES Of TIHISTEES.]

A TRUSTEE for the sale of lands under a decree of a court of equity, is the
mere instrument or agent by whose hands the court acts, and the sales made
by him are, in fact, the sales of the court.

The court has the incontegtible power to pass an order, directing the trustee
to bring the proceeds of sale into court, to be disposed of under its direction.

The court is not disposed to look with favor upon the appropriation by its
trustee of the proceeds of sales, without its previous authority; and such
conduct will be viewed with especial jealousy where married women and
children are concerned, and the property, or fund raised by the sale, is sub-
ject to marriage settlements, designed for the support of families.