#### Mary Owen Dean *vs.*Lowry Lanford & Wife, et al.

All persons in interest being parties, it is competent for the Court to appoint any one, tbe Commissioner or another, to execute titles to land.

The rule in *ex 'parte Hunter,*that the Court will never appoint a husband trustee for his wife, is imperative.

An order appointing a trustee is administrative and may be suspended by another Chancellor.

BEFORE DUNKIN CH., AT SPARTANBURG-, JUNE SITTINGS, 1857.

This bill was filed by tbe complainant as executrix of H. J. Dean, wbo in bis lifetime, was tbe executor of bis father John Dean. Tbe legatees of tbe will of John Dean were numerous, and bis executor was appointed trustee of tbe married females. He sold tbe estate under a power conferred by tbe will, and died before be bad made distribution of tbe proceeds. Tbe bill prayed that an account might be taken of H. J. Dean’s acts as executor, and tbe share of tbe several legatees ascertained, that titles might be made for certain lands which tbe executor bad sold, and that tbe complainant might be relieved from her position as trustee.

At June sittings, 1856, bis Honor, Chancellor Johnston, made an order that tbe Commissioner ascertain and report fit and proper persons to act as trustees for tbe married women and for tbe minor children, with leave to report any special matter. •

Tbe Commissioner by bis report, dated 6th October, 1856, recommended tbe husbands of tbe four married daughters of tbe testator, John Dean, as suitable persons to be appointed trustees of their wives respectively.

*424This report was taken before bis Honor Chancellor "Ward-law, wbo, on lOtb October, 1856, at Chambers, made an order as follows:

Wardlaw, Ch. In this case, it appears that John Dean, Esq., in his lifetime, executed his last will and testament, in which, among other things, he devised certain property to H. J. Dean, Esq., in trust, for the use of his daughters during their lives, and the remainder to their children. That in his lifetime, he delivered the bulk of the property to the daughters which never came into the hands of the trustee. That there is now a fund of about six hundred dollars in the hands of the complainant as executrix of H. J. Dean, the trustee, which she now desires to dispose of, and rid herself of the trust. The life tenants are all dead, except Eosannah Brew-ton, Mary B. Walker, Amelia B. Lanford, and Emily Gr. Patton ; and the Commissioner reports that their husbands, to wit, Miles Brewton, William Walker, David Patton, and Lowry Lanford, are fit and proper persons to act as trustees of their wives respectively. Though it is not customary, and under ordinary circumstances this Court would not appoint the husbands trustees, yet, under the peculiar circumstances of the case, the Court thinks it but just and proper to do so.

It is therefore, ordered and decreed, that William Walker be appointed trustee for Mary B. Walker, in lieu of H. J. Dean, deceased, upon his giving bond and two good sureties in the sum of sixteen hundred dollars, for the faithful performance of his trust; that Miles Brewton be appointed trustee for Eosannah Brewton, upon the same terms; that Lowry Lanford be appointed trustee for Amelia B. Lanford, upon the same terms; and that David Patton be appointed trustee for Emily E. Patton, upon the same terms.

It is further ordered, that it be referred to the Commissioner to report as to the propriety of allowing the complainant to execute titles to the land sold by her testator, H. J. *425Dean, as referred to in tbe bill, witb any special matter; and tbat be report upon tbe estate so far as to enable tbe parties to make a final settlement thereof.

Tbe complainant then filed a petition in wbicb sb'e again brought tbe facts to tbe notice of tbe Court and prayed to be at once relieved from all responsibilities as trustee.

Tbe decree of tbe Chancellor upon tbe bill and petition is as follows:

DuNKiN, Ch. The bill was filed against tbe several legatees under the will of John Dean, deceased. The plaintiff is the executrix of her husband Hosea J. Dean, deceased. ■ Her testator bad in his lifetime been tbe executor of bis father, John Dean, deceased, and trustee for tbe various legatees. Hosea J. Dean bad in bis own lifetime filed a bill to be relieved from tbe trust, wbicb from various circumstances be found onerous and troublesome. But be bad voluntarily assumed tbe trust, and as no one equally competent was presented, tbe Court declined to interfere. Tbe plaintiff occupies a position essentially different. She has never assumed tbe trusts under tbe will of John Dean, deceased, and positively declines to assume them. As tbe executor of her bus-band she is merely a constructive, and not a technical trustee under tbe provisions of John Dean’s will. She is only so fax a trustee as tbat tbe legal title in the personalty may rest in her as tbat of the realty, (if any,) devised to her husband in trust, would rest in bis heirs. She has tbe right to tbe aid of tbe Court in being relieved from this relation. See Hill on Trustees, 215, and tbe authorities there cited.

The bill stated tbat the property, not delivered by tbe original testator, John Dean, in bis lifetime, bad been afterwards sold by bis executor, and tbe proceeds, after payment of debts, amounted to about fifty-five hundred dollars, or about five hundred dollars to each set of legatees. Tbe plaintiff *426prayed that an account might be taken of the transactions of ber husband as trustee; that titles might be made to the purchasers of certain real estate of John Dean, deceased, sold by his executor; that a proper trustee or trustees, might be appointed, and that, upon payment of the sums ascertained to be due by her testator, she might be relieved from further responsibility in that behalf. At June term, 1856, Chancellor Johnston ordered a reference to the Commissioner, to recommend fit and proper persons as trustees, under the will of John Dean, deceased. A subsequent order was made that the Commissioner inquire as to the propriety of allowing the complainant to execute titles for the land sold by her testator; and also that he report upon the estate, so as to enable the parties to make a final settlement thereof with leave to report any special matter. Under this order the Commissioner at June Sittings, 1857, submitted his report; recommending the complainant as a fit person to execute titles for the land sold by her testator, and, as special matter, recommended William C. Miller, as a trustee for his wife, Mary Ann Miller, granddaughter of the testator,'John Dean, deceased. This report was presented to the Court for confirmation, and at the same time was presented the petition of the plaintiff hereafter to be noticed.

Upon the decease of John Dean, the title to his real estate descended to his heirs-at-law, with a power in Ms executor, Hosea J. Dean, to sell the same and execute proper conveyances. The land was sold, but titles not executed. If the heirs-at-law of John Dean, deceased, are parties in these proceedings, it is competent for the Court to appoint any person to execute a conveyance for the lands sold by Hosea J. Dean, deceased, and either the plaintiff or the Commissioner may be appointed to execute the deeds. But let it be referred to the Commissioner to report the names of those who are heirs-at-law of John Dean, deceased, with liberty to the plaintiff to make them parties, if they are not already made parties.

*427In *ex parte*Hunter, Eice, Eq. 294, it was declared *to*be tbe rule of tbis Court never to appoint tbe busband of-a married woman as ber trustee. Almost universally, tbe leading purpose of creating tbe trust is to exclude tbe busband, and tbis object is seriously jeopardized, if not practically frustrated, by appointing bim trustee, and tbus vesting in bim tbe legal title. But it is not proposed to vindicate a rule wbicb probably always existed in tbe administration of trusts, and was only declared imperative in consequence of some exceptional departures from tbe rule. <-

It was said, however, that a similar. order to -that now sought, bad been made at Chambers, on tbe 10th of October, 1856 ; and tbis brings tbe Court to tbe consideration of the petition of tbe plaintiff in connection with that order. She states that it was made without ber knowledge or acquiescence, and suggests reason's why so much of the- order as relates- to tbis point should be re-considered. It was merely an administrative order, and was manifestly made under tbe impression that it was by consent. Under tbe circumstances set forth in tbe petition, it is deemed expedient to suspend so much of said order as directs tbe appointment of the bus-bands as trustees, so that tbe husbands may have an opportunity of taking tbe judgment of tbe Court of Appeals upon tbis subject. Tbe Commissioner will, in tbe meantime, inquire and report upon tbe matters heretofore referred to bim, and particularly as to tbe indebtedness of tbe testator, Hosea J. Dean, deceased, to tbe estates of bis *cestui que trusts,*with leave to report any special matter.

Tbe defendants appealed, and now moved this Court to reverse tbe decree of Chancellor Dunkin, upon tbe ground, that be bad no jurisdiction to set aside tbe decree of Chancellor Wardlaw.

Tbe complainant also appealed, upon tbe ground, that-tbe *428relief sought for in her bill and petition ought to have been granted.

Edwards, for complainant.

*Bolo,*contra.

Per Curiam.

In this case, the Court has considered the grounds of appeal submitted by the parties respectively, and are of opinion that the appeal should be dismissed, and it is ordered accordingly.

Johnston, DuNKiisr, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*