#### *John A. Brown*vs. *Mary W. Postell and others.*

A decree determining a case upon its merits, but ordering a reference to ascertain the amount due, and not determining the mode in which satisfaction should be made of the amount when ascertained, may be appealed from when an appeal is taken from the decree on the report.

Conveyance of property in trust, that husband and wife and his children should be supported and maintained out of the property during their natural lives, and, after the death of husband and wife, that the estate should be equally divided among the children : the husband, first, and the wife, after his death, contracted debts, personally, for rent, overseer’s wages, and necessaries supplied for the use of the family:—

*Held,*that for these debts the creditors had no equity to make the trust estate, as such, liable.

*Held, further,*that the creditors of the wife could not enforce their demands out of her individual interest, (1) because the bill was not framed with that aspect; and (2) because her interest could not be separated without breaking in upon the scheme of the trust, which required that the property should be kept together until the death of the survivor of the husband and wife.

This ease was heard in June, 1846, in York district, before JOHNSON, Ch., who made the following decree :

• Johnson, Ch. The late Jehu Postell, by deed dated in February, 1819, conveyed to Charles Williams certain slaves by name, ten in number, with their subsequent issue and increase, upon certain terms, which are very confusedly and inartifieially expressed. Those upon which the question to be considered turns, are thus expressed: *“*The said Charles Williams shall stand possessed, as trustee aforesaid, and the said Jehu Postell and Mary, his wife, &c., as also his present children or any other children, by him, the said Jehu Postell, lawfully to be begotten, are to be supported and maintained out of the said property, during the term of their natural lives; and at the death of the said Jehu Postell and Mary, his wife, &c., the said Charles Williams shall stand possessed of the’ said property, for the said Jehu Postell, during the term of their natural lives, and at their deaths, to such of their children as may be living, share and share alike,” &c.

Jehu Postell retained possession of the negroes until his death *72in 1833, and the defendant, Mary W., bis widow, and tbeir children, hare had possession of them ever since. Charles Williams is also dead, and neither he nor his executors have ever interfered with them, and no trustee has been substituted in his place. Defendant, Mary W., contracted a debt with the complainant, a merchant, for goods, which, he charges, were necessaries for herself and children. He has obtained his judgment at law, against her, for the debt, and the sheriff has returned *mdla bona*on the *fi. fa.*against her, and the bill prays that the trust property may be charged with the payment of his demand.

Notwithstanding the informality of the deed, I think it may fairly be deduced that the grantor intended that the support and maintenance of his widow and children, should be a charge as well on the *corpus*as the meóme of the trust property, and if the account raised by the complainant against the defendant, Mary W., was for necessaries supplied for the use of the family, it is a charge on the trust property.

It is stated that an order of the Court has been heretofore made, authorizing the sale of a portion of the negroes, to supply the wants and pay the debts contracted by defendant, Mary W., for the use of the family, and that out of the proceeds she purchased a house and lot in the village of York. It is admitted that this property is unproductive, and it is the desire of the defendants that it should be first sold, to meet the demands upon the trust property.

It is therefore ordered and decreed, that the commissioner enquire and report, whether the account raised by the complainant against defendant, Mary W. Postell, was for necessaries supplied for the use of herself and family. It is further ordered, that the said house, and lot, in the village of York, be sold by the commissioner, on the first Monday in August next, or some convenient sale day thereafter, on a credit of twelve months, with interest from the day of sale; the purchase money to be secured by bond and personal security, and a mortgage of the premises, and the proceeds *73of sale, wben collected, to remain in court, subject to its further order.

In June, 1847, the case was heard on the report of the commissioner before his Honor Chancellor Caldwell, who, discovering that some of the *cestui que trusts*had not been made parties to the bill, made the following order:

Caldwell, Ch. It is ordered and decreed, that all the children of Jehu and Mary W. Postell be made parties by service, if within the State, or by publication, if without its limits, to the proceedings in this case, and that the report be recommitted to John M. Boss, Esq., special referee, without prejudice, and the evidence to be offered *de*novo, and that all the creditors of Mary W. Postell, who have claims against the trust property aforesaid, have leave to come in as plaintiffs to this bill, on their proportionally contributing to bear the expenses of this suit, and that the said referee do enquire and report, whether their respective claims were for necessaries furnished to her or her children; whether on her credit, or on the credit of the trust estate; whether any of them, and which, was contracted for the benefit of the trust estate, or whether it ought to be made liable for the same; also, of what property the trust estate consists; what is the annual income thereof; how the same has been applied, and who has possession thereof, or has received the rents and profits; also, what benefit she and her children, respectively, have derived from the trust estate; and who would be a fit and proper person to be appointed in the place of Charles Williams, the deceased trustee.

In June, 1851, the case again came up, on the report, and exceptions thereto, before his Honor Chancellor Waudlaw, who pronounced the following decree:

Y(ARDLAAV, Ch. This case comes up before me on exceptions, by the defendants to the report of a special commissioner, establishing certain debts due to the plaintiffs as charges upon the trust estate, of which defendants are beneficiaries, and recommend*74ing the payment of them from the rent of the land, and the hire of the negroes comprising the trust property.

The third exception objects to the allowance of the claims of the plaintiffs, because there was no evidence that credit was given on account of the trust estate. The commissioner, in the absence of all proof, infers that credit was given on the faith of the trust estate, from the fact that the beneficiaries, Mary W. Postell and her seven children, had no property, besides the trust estate, when the debts were created. It also appears that the debts are for rent, overseer’s wages, and for necessaries supplied for the use of the family, and that the deed creating the trust, provides for the support and maintenance of the family out of the trust estate. Charles Williams, named as trustee in the deed, never interfered with the management of the trust property, although it is alleged in the bill that he signified his willingness to accept the execution of said trust; and since his death his executors have abstained from all interference, and, although named in the bill, they are not made parties to the suit. No other trustee has been appointed. The trust property continued in the possession of Jehu Postell, the husband, until his death in November, 1833, and since has been in ¡possession of the widow, Mary W. Postell, and her child-dren. The debt to Bratton & Erwin was partly contracted by Jehu Postell; but after his death, the note of Mary W. Postell and Thomas Williams, Jr., was accepted in payment by Bratton & Erwin. All the other debts were contracted by Mary W. Pos-tell, all or nearly all of her children being then minors ; one of them is still under age. Whenever the debts were contracted with merchants or tradesmen, the items in the accounts were charged to Jehu Postell or Mary W. Postell; and in the case of every debt presented, her note or single bill was taken by the creditor, and generally judgments in the Court of Law have been also taken against her. The debt to Starr & Graham was contracted more than four years before the order was passed allowing other creditors besides Brown, the original plaintiff, to come in and prove their demands, and all the other debts were contracted *75more than four years before tbe filing of tbe bill. Tbe statute of limitations is relied upon by defendants, and is pleaded by Starr & Graham against all other creditors. Tbe trust deed was regularly recorded.

Tbe creditors here have not furnished proof satisfactory to my mind that tbe credit they extended to Mary W. Postell was on tbe faith of tbe trust estate. Persons having notice of a trust are not to be encoiwaged in dealings with tbe beneficiaries, which may subject tbe trust property to liability, and in many cases to utter destruction. There is little use in creating trust estates and appointing trustees to manage them, if every man in tbe community may exercise bis discretion as to what is necessary for tbe preservation of tbe trust estate and tbe execution of tbe trusts. Tbe interest of tbe trust and tbe comfort of the immediate beneficiaries are not identical, else any one may supersede tbe trustee, and, under tbe plausible pretence of supplying necessaries to tbe beneficiaries, ruin tbe estate. Tbe only safe rule in tbe absence of express proof, is to presume in such case, that tbe creditors trust to tbe economy and honesty of tbe beneficiary, and expect reimbursements from tbe income actually received or soon to be received. It cannot be pretended that tbe creditors occupy a more favorable position than tbe trustee himself; and tbe trustee, without tbe previous direction of tbe Court, or its subsequent sanction, upon some sudden emergency, cannot encroach upon tbe capital, or exercise discretion in disbursements, beyond tbe income annually accruing. But we are not rashly to remit creditors to the rights of trustees; for in this way we shall foster dereliction by trustees and irresponsible management of trust estates. I shall not undertake to review our cases on this subject, which are somewhat conflicting ; but I think tbe principles I have set forth are fairly deducible from *Magwood Johnston,*(1 Hill Cb. 236); *Heid$ Lamar,*(1 Strob. Eq. 27); and *Morton Adams,*(Id. 72.) I conclude that tbe plaintiffs trusted to tbe personal liability of Mary W. Postell.' This conclusion is strengthened by tbe fact, that tbe plaintiffs accepted from her higher securities for tbe debts by srm-*76'pie contract, *(Gfardner*vs. *Must, 2*Rich. 601,) and by the fact of their great, delay in prosecuting a remedy against the trust estate.

If seems that under the decree of 1846, improyidently made before all the beneficiaries were parties to the suit, a lot in Yorkyille, belong-t ing to the trust estate, has been sold and purchased by the plaintiff, Brown, for a small price, and that the sale was confirmed in 1847; and it was urged that the sale should be set aside, and an account ordered for rents and profits. I cannot yenture to decide an issue not made by the pleadings, and I must leave the parties to proceed hereafter in this matter as they may be advised.

It is ordered and decreed that the bill be dismissed.

The complainant appealed from the decree of’ Chancellor Wa:rd-baw, on the following grounds :

1. Because, it is respectfully submitted, his Honor erred in holding there was no sufficient evidence that credit had been given by J. A. Brown and the other complainants, on the faith of the trust property.

2. Because his Honor held, the creditors had lost their right to compensation out of the trust estate, by accepting the notes of Mary W. Postell, and it is submitted that there is error in this, and that the creditors, by such acceptance, did not destroy their equities to payment for benefits conferred on the trust estate.

3. Because, if his Honor decided correctly that sufficient evidence had not been furnished of credit being given by the complainants on the faith of the trust property, he should have decreed the sale of the house and lot in Yorkville, binding and conclusive on the defendants, and particularly on those of them who gave their consent to said sale.

4. Because his Honor is mistaken as to the fact of all the defendants having pleaded the statute of limitation — only some of them having done so.

5. Because his Honor should have decreed the defendants, to pay costs.

6. Because, under the decree of Chancellor JOHNSON, the complainants were entitled to recover, on proving, as they did, *77that tbe accounts raised by them against M. *W.*Postell, were for necessaries for tbe use of berself and family.

*Williams,*for appellant.

*Witherspoon,*contra.

Tbe opinion of tbe Court was delivered by

DargkaN, Cb.

The most serious difficulty encountered by tbe Court in tbe decision of this cause, is tbe question raised in tbe complainant’s sixth ground of appeal. Tbe complainant contends that tbe decree of Chancellor David JOHNSON, of the 17th June, 1846, did adjudge, that be should recover bis debt out of tbe trust estate; provided, on tbe reference ordered, be succeeded in establishing bis demands as stated in tbe bill. He contends, that having proved bis claim, as will appear by tbe commissioner’s report, tbe decree is conclusive upon tbe defendants as to bis right to recover.

This Coiu’t is of tbe opinion that the decree of tbe 17th June, 1846, did adjudge tbe cause upon its merits, and that tbe Chancellor did judicially decide, that tbe complainant should recover; provided, be proved bis debt before tbe commissioner. This Court is further of tbe opinion, that this decree, unless it is now properly in review before this Court in tbe way of appeal, is final and conclusive upon tbe parties. And this brings up the question, whether tbe decree of tbe 17th June, 1846, can, at this stage of tbe proceedings, be brought before this Court on an appeal. We are of the opinion that it may. And tbe complainant having appealed from the decree of June term, 1851, disallowing bis claim and dismissing his bill, it opens tbe way for tbe appellees to make the same questions which they might have made if tbe last decree bad been against them.

Although tbe decree of the 17th June, 1846, did adjudge that tbe complainant should recover, it was in tbe nature of an interlocutory order for judgment. No execution or attachment could have been issued upon it. It did not ascertain tbe amount to be recovered, or tbe mode in which satisfaction was to be made. *The**78amount was to be determined bj the investigation before the commissioner, and the mode of satisfaction out of this trust estate still rested in the discretion of the Court. ■ It was, therefore, not a final judgment, but one that was to be rendered complete by further proceedings. The case was not ripe for the final action of the Court, until June term, 1851, when a decree was rendered, from which this appeal has been taken.

It is unquestionably true, that the parties aggrieved by the decree of June, 1846, might *then*have appealed from that decree. Of they might, in their discretion, (waiving their present right of appeal until the final judgment of the Court,) bring, by way of appeal, all the former adjudications of the circuit Court in review before this Court. This latter is virtually the position of the ap-pellees now before the Court.

A question might arise, (which, however, does not arise in this case,) as to what would be the effect of an intermediate appeal between the interlocutory and final decree of the *Court.*The better doctrine is, that such intermediate appeal should conclude all questions that were made, or might have been made, in the appeal, and leave open only such as were not then adjudged and could not then have been adjudged. The case of *Price*vs. Nesbit, (1 Hill Ch. 445,) goes much farther than this. It recognizes no such distinction, and rules that, as long as there remains any thing for the Court to do in a cause, all the preceding orders and decrees may be reviewed on appeal. The extent to which the right of appeal was allowed in that case, has given rise to much discontent. It is supposed by many to have sanctioned a rule that was mischievous and cumbrous in its operation. It is not necessary for me, on the present occasion, to borrow any force from this case.

Whether the decree of the 17th June, 1846, was not of binding obligation upon all succeeding circuit Courts, is another question to that now before us. That decree is considered now to be fairly before this Court on appeal, and as an appeal, we have a right to hear it.

*79It is tbe opinion of tbis Court, tbat the decree of the 17th June, 1846, is erroneous in its construction of the deed creating the trust. The deed is inartificially drawn. But the intent of the donor is sufficiently clear. The trust declared was as follows: Jehu Postell, by deed dated February, 1819, gave to Charles Williams certain slaves by name, in trust, that Jehu Postell and Mary, his wife, and his present children and any future children by him lawfully to be begotten, should be supported and maintained out of the said property during the term of their natural lives, and at the death of the said Jehu Postell and Mary, his wife, the trust estate was to be equally divided among the children. This -is, in substance, the provisions of the deed of trust.

If this be considered as an attempt to subject the trust estate, as such, to the claims of the creditors, this Court perceives no equity in the application. The credit was not given to the trustee, who is long since dead, nor to the trust estate, but to some of the beneficiaries personally. The *corpus*of the estate the Court would not touch under any circumstances; and if the income, which is small, were devoted to the payment of this large amount of debts, there would be no income left to answer the objects of the trust. There is no equity in the application as a demand against the trust estate.

The counsel' of the appellant, in the argument, insisted, that if the Court did pot recognize an equity in the complainant’s claim against the trust estate, he should be allowed to enforce his demand out of the individual shares of such of the beneficiaries as had contracted the debts that he was seeking to recover. He claimed the right to enforce his demands against the equitable estates of his debtors individually.

There are two insurmountable impediments to the Court’s adopting this latter view of the case. In the first place, he has not framed his bill with that aspect. That is not the case he has called on the defendants to answer, or this Court to adjudge. The second difficulty arises from the nature of the trusts declared in the deed. The Court could not subject the share of one of the *80beneficiaries of tbe trusts to Ms or ber debts, without breaking in upon the whole scheme of the trust. The interest of one could not be separated without injury to the other *cestui que trusts.*There is no present right of enjoyment in severalty. The Court would not decree a partition. The scheme of the trust, according to the provisions of the deed, is, that the estate is to remain as a whole until the death of the survivor of Jehu Postell and Mary, his wife. The latter still survives. On her death, the children will be entitled to a partition and enjoyment of their respective shares in severalty.

The decree is affirmed and the appeal dismissed.

JOHNSTON, DuNKIN and Wakdlaw, ‘CO. concurred.

*Decree affirmed.*