#### WILLIAM D. HARRINGTON *against*MALCOM A. McLEAN, *Executor.*

Where, by marriage articles, it was agreed that the wife should have the use of her slaves for life, and that they should then go to her children, it was UeMthat the husband of a daughter, who was the only child of the marriage, who became husband in the life-time of his wife’s mother, could not sue the executor of her father for the slaves in his own name, but must use the name of his wife jointly with his own.

*(Webber*v. Taylor, ante 36, as to the practice of this Court in remanding the cause for amendments after demurrer sustained, cited and approved.)

Cause removed from the Court of Equity of Harnett county.

On the 10th of October, 1827, Neill McLean and Sarah McNeill, in contemplation of a marriage between them, which was about to be solemnised, entered into a contract, in writing, in which was stipulated, among other things,-as follows : “That the said Neill McLean doth covenant and bargain and agree, that the said Sarah McNeill shall have and hold, to her own use, her two negroes, Robin and Sophia, and all of Sophia’s increase, her life-time, and the said Sarah McNeill’s children shall have them after her; but if she shall have no child to live, then the said negroes to be his, to his own use forever.”

The marriage took place as contemplated. The said Sarah had one child born of this marriage, to wit, Margaret Jane, who, in the life-time of her father and mother, intermarried with the plaintiff, William D. Harrington.

The slaves in question, now amounting to ten, continued in *136the possession of the husband until his death, in 1858, and then went into the possession of his executor, the defendant, who holds them adversely to plaintiff’s claim, and says that he intends to dispose of them according to the provisions of the will of Neill McLean, which will, makes a disposition of them among the children of a former marriage, to the exclusion of plaintiff’s wife.

The bill is filed in the name of Harrington, alone, against the executor of Neill McLean, praying for a surrender of the slaves, and for an account of the hires of the slaves since the death of Mrs. McLean. She died on the 16th of October, 1856.

The defendant demurred to the bill for want of equity generally, and the cause being set for argument on the demurrer, was sent to this Court.

In this Court the counsel, for the defendant, assigns *ore ie?ws,*other causes of demurrer, among others, that Margaret Jane, the wife of the plaintiff, and only child of Sarah McLean, (formerly McNeill) is not made a party to the suit.

*W. MoL. McKay*and leitch, for plaintiff.

Buxton, *Fowle*and *Keill McKay,*for defendant.

Battle, J.

The demurrer filed by the defendant to the plaintiff’s bill, is a general one, for the want of equity, but his .counsel now assigns *ore tenus*several causes, one of which is, that the plaintiff’s wife is not a party to the suit. She is the only child of the defendant’s testator, Neill McLean, and his wife, Sarah, and is, therefore, the only person to whom the slaves, mentioned in the marriage settlement referred to in the pleadings, are limited after the termination of the life-estate reserved therein to her mother. The equity of the bill is to convert the defendant, as the representative of the testator, into a trustee of the slaves for the benefit of the plaintiff’s wife, and in order to assert that equity, she is a necessary party. It is true, that she had married the plaintiff in the life-time of her mother, and if the mother had had the legal *137estate for life in the slaves, then, upon her death, they would have devolved upon the husband of the daughter *jure*mariti, and he might have recovered them from the representative of the testator in his own name ;• but as the claim is an equitable one, only,'it does not belong to the husband until he can reduce it into possession, and, in doing that, he must sue in the name of his wife jointly with his own. The case, in this respect, is similar to the claim of the wife to a legacy, or a distributive share, a suit, for which, must always be in the name of the husband and wife; see *Arrington*v. *Yarbrough,*1 Jones’ Equity, 72, where the subject is fully discussed, and the reason upon which the rule is founded, is stated and explained.

The demurrer must be sustained for the want of parties; but as the objection was not taken until the hearing, the bill will not be dismissed, but will be remanded for the purpose of being amended, the plaintiff paying the costs, as in case of a dismission, without prejudice; *Webber v. Taylor,*decided at the present term, ante 36.

In making this amendment as to parties, it will be well for the plaintiff to consider, whether there ought not to be administration taken on the estate of Sarah McLean, for the purpose of making her representative a party, as the marriage settlement was also made with her, and it is through that agreement, the plaintiff’s wife derives her equity.

Per Curiam, Demurrer sustained.