#### PHILIP H. BENICK *and wife against*JOHN BOWMAN, *Ex'r., and others.*

Where a woman, upon the eve of marriage, made a conveyance of property to a trustee, to which she then had no right, but to which she afterwards acquired a right, *Held*that the property passed to the trustee by estoppel.

Although it is usual, in suits against executors and administrators, for the settlement of estates and the payment of legacies, to direct the costs to be paid out of the fund, yet, where the estate is very small, an executor who makes costs, by relying upon an unreasonable objection, will be decreed to pay them personally.

Cause removed from the Court of Equity of Rutherford county.

The bill was filed by P. II. Benick and his wife, against the executor of the will of 'David Bowman, for the recovery of legacies therein bequeathed to her. In the said will, certain specific items of property, such as cattle, beds and household furniture, were bequeathed to the female plaintiff, and a residuary clause in the same, entitled her to an equal share of the property not otherwise specifically bequeathed.

The executor' set forth that, on the marriage of the plaintiff P. II. Benick with his wife, the female plaintiff, a contract was entered into between them and one Cicero Hinkle, to the effect that certain specific property, (naming it), which is the same that is contained in the will of David Bowman, as the legacy of the plaintiff Lydia, should vest in the said Cicero as trustee for the sole and separate use and benefit of the said Lydia. ■ In which said marriage contract it was further stipulated that the said Lydia, should have full power and authority to acquire property or any estate whatever, in her own name, and in her individual right; and the executor objected that liepiad no right or authority to pay over these legacies, or any part of them, to Benick and his wife, but that the same vested *315in the trustee, Cicero Iiinlde, wbo is not made a party to the bill, but who should hare been.

By an interlocutory order, it was referred to a commissioner to take an account of the residuary fund, who reported a small sum ($20,79), in favor of Mrs. Benick. The report was not excepted to, and was confirmed.

The cause was set for hearing upon the bill, answers and former orders; and on the hearing, the defendants’ counsel submitted a motion to dismiss the bill for the want of proper parties.

Baxter, for the plaintiffs.

*Slwppjjr.,*for the defendants.

Pearson, J.

The effect of the deed was to vest the title of the property, specifically mentioned, in Cicero Hinkle; for, although Mrs. Benick did not then have the title, yet, when she afterwards acquired it, under the will of her father, the deed took effect so as to pass the title of the property by way of estoppel. In respect to this property there is no controversy, the executor having assented. In respect to the amount to which Mrs. Benick is entitled, under the residuary clause of her father’s will, the effect of the deed was to constitute a covenant by which Benick agrees to surrender his marital rights, and to permit his wife to acquire property, and to hold it for her own separate use in the same manner as if she was a feme sole. In regard to these future acquisitions, Ilinkle is not interposed as trustee, but the matter is put on the footing of an executory agreement, to be enforced at the instance of the wife.

It follows that Ilinkle was not a necessary party. The motion to dismiss is disallowed, and there will be a decree in favor of the plaintiffs, for the amount reported. The defendant will pay plaintiffs’ costs. It is usual to direct the costs to be paid out of the fund, in suits against executors and administrators, for the settlement of the estate and the payment of legacies; but in this case, the fund is small, and it would-be *316unreasonable to allow the defendant to consume it by relying on an objection which turns out not to be. tenable. lie ought to have settled and paid over Mrs. Benick’s portion of the residue, without suit, leaving it to her to move in the matter respecting the appointment of a trustee to carry out the provisions of the marriage agreement.

Pee CueiaM, Decree accordingly.