#### *John Adams*vs. *John J. Mackey and others.*

Property was held in trust for the support and maintenance of a married woman and her children, not to be subject to the debts, contracts, or control of her husband, and on her death to pass to her children. Kor repairs on a carriage, and for services rendered, the husband and wife gave their sealed notes. The wife died: *Held,*that the creditor was not entitled to payment out of the trust estate.

*Before*Dunkin, Ch. *at Lancaster June,*1853.

A statement of this case is contained in the Circuit decree, which is as follows :

Dunkin, Ch. The will of Thomas Mackey bears date in February, 1841, and the testator died shortly thereafter. His daughter, Agnes, was then the wife of John J. Sims. By several clauses of his will he devises and bequeaths to his son (the defendant) John T. Mackey, certain real and personal estate, in trust for the support and maintenance of testator’s daughter Agnes, and her children by her present husband, John J. Sims. In each clause it is expressly provided that the property so given shall not be subject, in any manner, to the debts, contracts or control of her husband ; and further, that, on the death of testator’s daughter Agnes, the property shall pass “ to her children by her present marriage.” Part of the property bequeathed *76consisted of the sum of seventeen hundred dollars, which was afterwards invested in negroes, to be held subject to the same trust.- . The testator authorized the trustee to expend the interest of the seventeen hundred dollars, and, if that was insufficient, so much of the principal as he thought expedient for the purposes aforesaid.

It was stated at the hearing, that Agnes Sims is dead. This petition was filed (as the Court supposes) since the death of Agnes Sims. The copy petition furnished to the Court, contains no evidence of the time of filing; no copy of the causes of action ; no statement as to the time when they arose. No evidence was offered at the hearing.

It is stated in the petition, however, that at some time, one Mayer made repairs on a carriage belonging to the trust estate to the value of eighteen dollars, for which John J. Sims and his wife gave their sealed note, and that one M. B. Arant rendered other services stated, for which John J. Sims and his wife gave their sealed note for twenty dollars, and that both these notes were delivered to the petitioner for valuable consideration.

“ If any thing can be considered as settled,” says Chancellor Harper, in *Reid*vs. *Lamar,*1 Strob. Eq. 37, “ it is the settled law of this State, that where property is given or settled to the separate use of a married woman, she has no power to charge, incumber, or dispose of it, unless in so far as power to do so has been conferred upon her by the instrument creating her estate.” By the express inhibition of Mackey’s will, the property is placed beyond the control of John J. Sims, and the signature of his wife is a mere nullity.

It is suggested that Sims and his wife were the agents of the trustee. This is denied by the answer and no proof was offered. But if the allegation be susceptible of proof then the petitioner has a plain and adequate remedy at law against the trustee. The only equity to which a creditor in such case can be entitled is to be subrogated to the rights of the *cestui que trust.*If the *cestui que trust*has not received the income of the trust estate to which he, or she, was entitled, and credit has been *77given to effect the objects of the trust, the creditor, in the event, for instance of the insolvency of the trustee or the like, may claim any arrears of income to which the *cestui que trust*might be entitled. But this is a rare exception. In general a person must look to the party with whom he contracts: if the contract is with the trustee, he must look to him and not to the trust estate. The remedy of the trustee is out of the trust funds properly applicable. See *Morton*vs. *Adams,*1 Strob. Eq. 72. So, if the creditor contracts with the *cestui que trust*he must look to him for payment. He can reach the trust estate only through the *cestui que trust,*and upon a special statement shewing the right of the *cestui que trust*and the equity of the creditor to subrogation. But even then, as remarked by the Court in *Magwood*vs. *Johnston,*1 Hill, Ch. 228, “ Every estate must bear its own burthen, or instead of effecting the objects of the trust they will be defeated.”

The trustee states that the entire income was received by the *cestui que trust*during the coverture, and, he denies that the de mands for which payment is sought were for the benefit of the trust estate. The prayer of the petition is that so much of the *corpus*of the trust estate as may be necessary, shall be subjected to the satisfaction of the petitioner’s claims.

In the judgment of the Court, he has presented no case which would entitle him to aid, and the petition is accordingly dismissed.

The petitioner appealed on the grounds :

1. As the answer of the defendants admit that the carriage was a part of the trust estate, and the consideration of the note to Mayer for $18, was for repairs upon the carriage, the Court, it is submitted, should have decreed the same out of the rents and profits, or the *corpus.*

2. As the answer admits that the note to Arant for $20 was for horse power to work the trust lands, the same should have been decreed against the rents and profits, or some other part of the trust estate.

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      *Clinton,*for the appellant.

*Williams,*contra.

*Per Curiam.*

This Court concurs in the decree. It is, therefore, affirmed and the appeal dismissed.

Johnston, Dunkin, Dargan, and Wardlaw, OC., concurring.

*Appeal dismissed.*