#### *John Bomar, jun.,*vs. *Jane Mullins.*

The right of an administrator to interfere at all with the lands of his intestate, is so equivocal, that his claim to the rents and profits will not be recognized, where the lands are held by adverse *title.*— Semble.

wife having a life estate in land, husband conveys it to a trustee for her solo and separate use for life, with right to dispose of two-thirds at her death, and with remainder in one-third to himself: husband and wife afterwards purchase the estate in remainder, — then sell the land, and husband with the proceeds purchases other land, taking himself the title : the land thus purchased by husband becomes impressed with the trusts of the marriage settlement.

Whore land is conveyed to husband and wife, they become seized of an estate in entirety — neither can alien so as to bind the other, and the survivor takes the whole.

Wife having an estate for life, and husband and wife being seized of the remainder in entirety, the estate for life does not merge in the estate in remainder.

*Before*Wakdlaw, Oh., *at Spartanburg, June,*1851.

This case is instituted by plaintiff as administrator of the chattels and credits of Daniel Mullins, who died intestate, against the defendant, the widow of the intestate, for an account of rents and *81profits of tbe Mhllinax-mill tract of land and the Foster tract, to which the intestate had titles in his own pame, and of which, since his death, the widow has retained the possession, claiming them as purchased with trust funds belonging to her.

John James, former husband of defendant, by his will, gave one-half of his estate in fee to his daughter, Polly T., wife of Thomas C. Austin; and of the other half, gave to the defendant two negroes absolutely, and the use of the residue for life, with remainder in the residue to his said daughter in fee. This estate, was divided between the widow and daughter of testator; and to the widow were assigned, the homestead, ten negroes, horses, hogs, household and kitchen furniture, provisions, &c. Being in possession of this estate, she married the intestate, Daniel Mullins, who had no property, and was, and continued to be, during life, drunken, indolent and unthrifty. Soon after the marriage, namely, September 5, 1829, Daniel Mullins conveyed to a trustee all the property of every description, real and personal, to which he became entitled by virtue of Ms marriage, with the income and profits thereof, in trust for the sole and separate use of his wife for life, with power in the trustee, with her consent, to sell and reinvest; “ and in trust also to permit her, the said Jane Mullins, by any will and testament, duly executed, to dispose of two-thirds of said property, or two-thirds of such part as she could have disposed of lawfully before her marriage with me, (himself,) and then in trust to reconvey the remaining one-third of the said property to me (himself) discharged of the trust hereby created.” This deed was recorded September 7, 1829, in the office of the [Register of Mesne Conveyances for Spartanburg — in which district the parties resided — and recorded May 23,1833, in the office of Secretary of State; and as this latter date, was within six months from the passage of the Act of 1832, (6 Stat. 482,) the deed is valid, according to the provisions of that Act, against the debts, sales and mortgages of the husband, contracted, made and executed after the ratification of the Act. Thomas C. Austin and Polly T., his wife, by release, dated December 10, 1829, con*82veyed to Daniel Mullins and Jane 'Mullins, all tbe interest and rémainder of tbe grantors, in tbe plantation, slaves, stock, furniture and other property, then in possession of the grantees under the will of John James; December 21, 1829, the said Polly T. renounced her inheritance ; and the deed was recorded April 5, 1830. About 1839, Daniel Mullins and wife sold the James homestead to Harvey Finch for $1,540, paid in 1840, ’41 and ’42. At what times and for what prices the Mullinax and Foster -lands were purchased, it did not appear by the evidence, but it appeared that the Mullinax tract consisted of eight acres, upon which there was a shoal; and the Foster tract of 103 acres, mostly old field; and I inferred that the aggregate 'cost was less than the price of the homestead. Except as to $50 paid by Finch to Mullinax, and discounted in the payment for the homestead, it did not strictly appear from what funds these two tracts wore paid for; but from the evidence as to the means and habits of Daniel Mullins, and as to the sale of the homestead not otherwise invested, I conclude that the payments were made from the trust funds. It did appear that most of the labor and expense in erecting and repairing the mill and dam on the Mullinax tract was furnished and expended from the trust estate. Daniel Mullins exercised some supervision in the erection and repair of the mills, and in the management of the plantation, but in the latter particular, at least, the defendant was the more efficient manager. D. Mullins also received the proceeds of the crops, but in the disbursement of them, as in payment of supplies for the family and plantation, his wife generally attended and co-operated. All debts for such supplies have been paid; but Mullins, at his death in 1844, left unpaid large liabilities to the plaintiff and others, contracted as surety for one Williamson, who had been substituted as trustee under the aforesaid post-nuptial settlement. These debts have no connection with the trust estate, and they were contracted after the registry of the deed in the office of the Secretary of State. Williamson is dead, insolvent; and D. Mullins is utterly insolvent, unless these two tracts of land are made liable for his debts.

*83It was not contested on tbe part of tbe plaintiff that if these two tracts of land were purchased with trust funds, the trusts of the deed would be imposed upon them; nor was the fact of their being so purchased, otherwise contested than upon the assumption, that I). Mullins was entitled to receive and disburse the proceeds of the crops of the plantation which was settled; and that he was entitled to one-third of the *corpus*of the estate in remainder; and that he appropriated his interest or share in these particulars to the purchase of these lands.

But under the deed, D. Mullins was not entitled to any beneficial interest in the income of the trust estate, and if in fact he received and disbursed this income, he must be considered as doing so in the character of agent or trustee for the *cestui que trust;*and it is at the option of the *cestui que trust*to pursue him for the debt arising from his breach of trust, or to claim the lands in which the trust funds have been invested. (Story Eq. § 1210-11; 322.)

It is true, that at the death of the defendant, the representatives of D. Mullins will be entitled to a reconveyance of one-third of the estate settled, which defendant might lawfully dispose of; but this estate in remainder being unproductive, afforded Mullins no moans or resources for the purchase of property. As to the extent and particulars of the estate in which Mullins has an interest of one-third in remainder under the trust deed, some perplexing questions may arise, which are not necessary to the determination of this case. Except as to the two negroes absolutely belonging to Jane Mullins at the time of the settlement, there was no property in her at that time of which she could lawfully dispose at her death; and as it is not clear, that beyond one-third of these negroes, Mullins has any vested interest or remainder, it is prudent to reserve any opinion, until, upon the determination of the life-estate, the proper parties can be brought before the Court.

It is said, however, that from the sale of the James homestead by Mullins and wife, a fund came into the hands of Mullins, which he was entitled to appropriate to his own use, adequate for the *84purchase of the Mullinax and Foster tracts. In the homestead; ■under the will of her former husband and the settlement of Mullins, Jane Mullins was entitled to a life estate. By the deed of Austin and wife to Mullins and wife, executed after the settlement, the remainder in fee was conveyed to Mullins and wife; and such conveyance in general constitutes a peculiar estate of which the main incidents are, that both are seized of the entirety— neither can alien so as to bind the other, and the survivor takes the whole. (2 Kent, 132; 4 Kent, 362.) As the conveyance of the whole estate in this land to Finch was apparently with the consent of the husband and wife, the *husband, prima facie,*would be entitled to a portion of the value of the remainder in fee in the lands. But the money paid as the consideration of the conveyance of the land, negroes, &c., in fee from Austin and wife, $3,200, must have been derived from the estate settled to the separate use of Jane Mullins, and the estate thus purchased should be charged with the trusts of the settlement.

It is adjudged and decreed that the Mullinax and Foster tracts of land belong to the trust estate settled by the deed of Daniel Mullins, dated September 5, 1829. It is also ordered that the plaintiff pay the costs of this suit.

The complainant appealed, on the grounds

1. Because the lands in dispute were the property of D. Mullins, and there is no proof that they were paid for by the trust funds; the titles being in him, the decree should have been for plaintiff.

2. Because D. Mullins was entitled to one-third of the entire estate which he conveyed in trust, which gave him means to purchase this property.

3. Because the sale of the homestead in which he was interested to the extent of one-third, was ample means in his hands to pay for these two’ small tracts of land.

4. Because the decree was against law and evidence and the facts of the case.

*Bobo,*for appellant.

■-, contra.

*85The opinion of the Court was delivered by

Wabdlaw, Ch.

The parties to this suit are the administrator and tbe widow of Daniel Mullins, wbo died intestate; and the subject of the suit is the rents and.profits of land : which land is claimed on one side to belong to the intestate, and on the other to belong to the trust estate of defendant. Debts of the intestate are incidentally mentioned in the course of the proceedings, but the creditors are not made parties to the bill; and the case is to be determined on the principles which would be applicable to a suit between the intestate and the defendant. The right of an administrator to interfere at all with- the lands of his intestate, is so equivocal, that we are not bound to recognize his claim for rents and profits, where the lands are held by adverse title. The circuit decree refuses to the plaintiff the relief he seeks, and has no other result. It does not conclude the claims of any person who is not a party nor a privy to the, suit.

Upon the question of fact, whether the Foster and Mullinax tracts were purchased with the trust funds of the defendant, this Court will not review closely the judgment of the Chancellor. The proof of the fact is not direct and precise, but is satisfactorily deduced from all the circumstances of the case. Granting that it might be insufficient to induce the active interposition of the Court in favor of the defendant, if she were claiming a remedy, it affords abundant justification to the Court in staying its hand, and leaving the parties where they are found.

The conclusion of the Chancellor as to the fact, is - assailed, principally, under the third ground of appeal, upon the assumption, that by the sale of the homestead to Finch, the intestate converted into money an interest in remainder to which he was legally entitled ; and that he invested this money in the two tracts now in controversy.

If the remainder in the homestead were at first purchased by Mullins and wife from Austin and wife, with the trust funds of defendant, the trusts would follow the re-investment; upon general principles, and according to the express terms of the settle*86ment of D. Mullins. That this remainder was so purchased, can hardly be doubted, if we bear in mind that this purchase was made three months after the settlement, and little longer after the marriage of Mullins and wife ; and that Mullins had no means of his own.

Supposing, however, that D. Mullins contributed from his private resources to the purchase of this remainder, still he would not be entitled in equity, to any portion, during the life of his wife, of the proceeds of a subsequent sale of the whole estate in the land. Jane Mullins, under the will of her former husband, was entitled to an estate for life in this land, and this estate was settled to her sole and separate use by the deed of D. Mullins. Afterwards Mullins and wife acquired an estate in entirety in the remainder in fee. These estates will not be suffered to coalesce. There would be no merger of such estates at law. The title of one of Mr. Preston’s chapters, in his treaties on merger, is: £ The freehold of the wife will not in any case merge in the freehold of the husband.’ Where the husband has a freehold and also the fee in right of his wife, and there is no joarticular reason for keeping the estates apart, the law permits the merger; but if one of the estates, the freehold or the fee, be held by entirety, as in this case, the reason for exemption from merger is applicable. (Preston on Merger, 308; Shep. Touch. 316.) If there had been a legal merger, that would not be permitted in this Court to defeat equitable estates and interests. *(Thorn*vs. *Newman,*3 Swan. 603; *Nurse*vs. *Yerworth,*Ib. 608.) Much less, where there is no legal merger, will this Court introduce the doctrine of merger into trusts, merely for the purpose of defeating equities, and destroying its own jurisdiction in the protection of the interests of married women. *(Whittle*vs. Henning, 2 Phil. 731.) The rules of this Court for the protection of married women are designed to protect them against the influence of their husbands, when exercised for appropriating to themselves property which the wives ought to enjoy. The Court will protect the reversionary interest of the wife in personalty, by considering it still rever-*87sionary, notwithstanding all interested in the precedent estate, by surrender or otherwise, may attempt to unite all parts of the estate in her person, for the purpose of enabling her to dispose of the whole. *(Whittle*vs. *Henning.)*The Court will not consent that she shall waive her chances of survivorship. The wife, in the present instance, equally needs this protection as to her real estate. It is doubtful, whether a life estate in the wife is her inheritance, in the sense in which the word is used in our statute, prescribing a form by which she may convey her inheritance, *(a)***At least, equity requires us to consider the proceeds of the sale of her land as still retaining the incidents of the original estate— and that she is still entitled to the income for her separate use for life, with the chance of taking the whole capital by survivor-ship, as an incident of the estate by entirety. According to this view, D. Mullins was not entitled to appropriate to his own use any portion of the money received from Einch, the vendee.

We concur with the Chancellor, that D. Mullins is not entitled to a present interest of one-third of the estate conveyed by his deed. It would be a preposterous construction, which would give him a right to immediate re-conveyance of one-third of the estate, when he expressly gives the whole to his wife for life, and also gives to her the right to dispose of two-thirds thereof by will. His claim to the re-conveyance of one-third is subject and subsequent to these rights of the wife.

It is ordered and decreed, that the decree be affirmed, and the appeal be dismissed.

Johnston and Dahgan, CC., concurred.

Dunein, Ch., absent at the hearing.

*Decree affirmed.*

(a)

*Hays*vs. *Hays,*5 Rich. 31.