#### *Robert Brown, survivor, vs. Susan M. Cleary and another.*

Where a woman, as *cestui que trust,*has a life interest in property in the hands of a trustee, and owes a debt, her creditor, if she owns no other property to which he can resort for the satisfaction of his demand, may, in equity, subject her income in such property to the payment of his debt.

*Before*Johnston, Ch. *at Charleston, February,*1844.

The bill stated that Robert Brown is the surviving co-partner of Brown *&*Tunis, of Charleston, factors. That some time prior to January, 1833, Brown *&*Tunis were the factors of Mrs. Susan M. Graves, and during the course of their dealing, Mrs. Graves intermarried with Nathaniel G. Cleary, and the said Susan M. Cleary and her husband, N. G. Cleary, because indebted to them for advances and supplies furnished ; upon which claim complainants obtained a judgment at law against the said Cleary and wife, and lodged execution. That Cleary had no property, and the property to which Mrs. Susan M. Cleary was entitled, was so conveyed that she had no right in the corpus or capital of the estate, but only in the income and profits j and the interest to which she was then entitled was not in law subject to a levy under a *fi. fa.*; and Mrs. Cleary being a married woman, no *ca. sa.*could be issued to compel her to assign her interests. That Brown *&*Tunis thereupon filed a bill in this *320.court, setting forth the above facts, and praying the payment of their debt. To this bill, Susan M. Cleary, Nathaniel G. Cleary, and James ft. Pringle, trustee of Mrs. S. M. Cleary, filed their answers j and upon the hearing of the cause, at January term, 1833, Chancellor Johnston, *inter alia,*decreed, that the trustee do, from year to year, when required by plaintiffs, until the further order of the court, account with them, before the Master, for the income of the trust estate, and pay over the net balance thereof to them until the demand, with interest and costs, be paid ; the amount of which was also referred to the Master. But the said trustee has never so accounted, and the debt is still unpaid.

That the plantation, for which the supplies were furnished which constituted complainant’s debt from Susan M. Cleary, has been sold; but the said Susan M. Cleary is still entitled to a considerable income from certain bonds, negroes, and real estate; and complainant insists that Susan M. Cleary should be compelled to account for such income and profits, according to the decree of the court of January, 1833.

That Charles H. Tunis is dead, leaving complainant the surviving co-partner of Brown cfi; Tunis. Nathaniel G. Cleary, her husband, is dead, and Susan M. Cleary is unmarried. James R. Pringle, who was Mrs. Cleary’s trustee at the time of the decree in 1833, is dead; but that H. A. DeSaussure, Esq., is the trustee of Mrs. Cleary, and holds for her use certain property consisting of certain lands, negroes, and bonds, from which a certain annual income is derived by, and exclusively appropriated to, the said Susan M. Cleary.

The prayer of the bill was that Susan M. Cleary may be compelled to pay the debt; that H. A. DeSaussure, her trustee, may be required to account annually to complainant for the income of the trust estate in his hands, and to pay from such income the debt due by Susan M. Cleary to the complainant.

The defendant, Mrs. Cleary, in her answer admitted that prior to her intermarriage with Nathaniel G. Cleary, she was indebted to her factors, Brown *&*Tunis, for a negro purchased, and for some supplies for a plantation and negroes on Pon Pon River, in Colleton district, wherein she had a life estate under her deed of marriage settlement with Samuel C. Graves, of which deed James R. Pringle, deceased, was trustee; and that on 14th February, 1829, the said Brown *&*Tunis obtained and entered up a judgment against - herself and Nathaniel G. Cleary, her *321second husband, for said debt. That shortly afterwards, the said Brown *&*Tunis filed their bill of complaint in this honorable court against this defendant and her husband, N. G. Oleary, and James R. Pringle, the trustee under her marriage settlement with Samuel C. Graves; and on 28th January, 1833, this court decreed, that the greater part of the above stated judgment was settled by the delivery to the complainant of the negro purchased by them for her *;*that other items of their claim under the judgment were inadmissible, and that only about $213 76, with interest, was due thereon, (but referred the matter to the Commissioner to ascertain the exact amount due ;) and further decreed, that James R. Pringle, the trustee, should account for the income of the trust estate, and pay the complainants’s demand, and costs of suit.

The defendant further admitted, that a judgment was obtained and entered up against the said Nathaniel G. Cleary, in his life time, at the suit of the Treasurers of the State, in the court of Common Pleas at Charleston, 1832, upon which a writ of *fieri facias*was issued, and delivered to the sheriff of Colleton district, by virtue whereof he took in execution the plantation and negroes included in this defendant’s marriage settlement, and on 3d June, 1833, sold and conveyed all the right, title,' and interest, of the said Nathaniel G. Cleary and of this defendant, in the same, to B. F. Hunt, Andrew M’Dowall, and J. H. Read, and under the said sale, the purchasers entered and held possession of the said plantation and negroes. In consequence of this sale, the said plantation and negroes passed out of the possession of this defendant and her' trustee, James R. Pringle, and the latter had no rents and profits to account for to the complainant, and this defendant no means to pay the debt.

The defendant further admitted, that her mother, Mrs. Susan M’Pherson, in and by her last will and testament, bearing date 20th August, 1834, devised to H. A. DeSaussure, in trust for this defendant, some property for life, with remainder to her daughter, the income of which has been regularly paid to her by her trustee, and constitutes her means of subsistence. She denied that the income of the said trust estate is liable to the complainant’s claim, inasmuch as none of the supplies furnished by complainant were for its benefit, or to effect the objects of the trust; and she insisted, that each trust estate must bear its own bur-thens ; or, instead of effecting the objects of the trust, they will be defeated.

*322The defendant H. A. DeSaussure in his answer submitted that the trust estate in his hands was not liable for the complainant’s claim.

The case was referred to the Master, who made the following report:

*“*The order of reference directs me to ascertain and report what is due to the complainant under the decree of Chancellor Johnston, of January, 1833. I have been attended by the solicitors of the parties, and find that the amount due is $213 76, with interest and costs. Calculating interest to the 28th February inst., 1844, the debt amounts to $379 59, exclusive of costs. I find, further, that although the .particular trust property for the use of which the supplies from Brown *&*Tunis were furnished, has been long since lost, and the trustees are dead, yet there are other trust funds *in*the hands of another *trustee, of*another trust estate, created long after *the*trust estate was lost, and these, it is alleged, are liable for this debt. The facts are so, but the trustee, in his answer, sets forth that the funds in his hands are derived from another and entirely different source, and can, in no event, be made to answer for this old debt. The question raised is one of law, not of fact, and is for the court to determine, not the Master.”

*Per Curiam.*— On the hearing of the case, it is ordered and decreed, that the claim of the complainant be established as a claim on the profits of the trust estate in the hands of *Henry A.*DeSaussure, trustee for his co-defendant, and that Mr. Laurens, one of the Masters, take a report of the whole amount due *to*the complainant, and of the trust estate of Susan M. Cleary, in the hands of H. A. DeSaussure ; and also of the amounts that can be appropriated to the payment of the debt due to the complainant, without interfering with the previous liabilities that the trustee may have already incurred on account of Mrs. Cleary.

The defendants appealed, on the following grounds :

1. That one trust estate is not liable for the debts of another trust estate, but each must bear its own burthen.

2. That the trust estate from which the complainant seeks the payment of his debt, and to which his advances were made, has long since been sold by the sheriff, and passed into other hands.

3. That the debt of Mrs. Susan M. Cleary to the complainant, was contracted by herself and her late husband, N. G. Cleary, during the life time of the latter, and was due long prior to the death of Mrs. M’Pherson, and prior to the existence of the trust *323created by her will, for the sole and separate use of Mrs. Cleary, in the hands of the trustee in this case.

4. That the complainant not having advanced money, or given credit to advance the objects of the trust in the hands of the present trustee, is not entitled to be reimbursed out of this fund.

5. That though Mrs. Cleary may still continue personally liable for the complainant’s debt, the, complainant has no claim against the present trustee, nor any lien on the trust property in his hands for the same ; and as to the present trustee the bill should have been dismissed.

*H. A.*DeSaussure, for the appellants, cited 1 Hill Ch. 228.

Magrath, contra, cited Chev. Eq. 163.

Curia, *per*Johnston, Ch.

Perhaps the opinion, (which, from ill health at the time. I delivered orally,) in this cause, was not sufficiently distinct to show that I did,not put the decision upon the grounds indicated by the appeal.

I -took it that the judgment obtained at law against Cleary and wife, was in itself conclusive that the demand upon which it was rendered was the debt of the wife before the coverture ; and that if there was any doubt of this, it was ended by her answer in this case, which (as appears by the brief ) admits the fact to be so. This judgment survived against the wife, upon the death of her husband, and constitutes a present debt against Mrs. Cleary, for which she is as conclusively bound as for any debt she may now contract. We are not to go behind the judgment and enquire whether it was rendered upon a purchase for this or that trust estate. We are to regard it as the personal debt of the wife, irrespective of the purpose for which it was contracted.

There being no unsettled and unincumbered property of Mrs. Cleary, to which the plaintiff can resort for satisfaction of his demand against her, and she being exempted from a *ca. sa.,*the question is, whether he is not entitled to a remedy out of the income of her trust estate, in the hands of her co-defendant : and of this no doubt has been expressed if the demand against her were only for her own personal contract; and I have just remarked that that is its character.

Certainly there is nothing in the decree or the case, from which it can be fairly infered that the demands upon one trust estate are chargeable upon another. The principle upon which the decree manifestly rests, is, that a contract for which neither *324trust is liable, as being the contract of neither of the trustees, but of the *cestui que trust*herself, may be satisfied out of her income from either trust estate, if there be no other remedy.

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

The whole court concurred.