#### Ex parte Charles D. Hunter, in the case of Jos. Warren, & Wife, and C. D. Hunter & Wife *v.*John J. Moore, Ex’or, et. al.

Where the appointment of a trustee, for the execution of trusts in favor of a wife, devolves upon the court, the appointment of the husband, either *alone,*or in conjunction with others, will not be allowed or sanctioned.

*Before JOHNSTON, Chancellor, at Sumter, Jan. Term,*1839.

At the term of the court of equity, for Sumter district, in February, 1836, the commissioner made a report, “ in pursuance of the decree of Chancellor Johnston, directing the commissioner to inquire and report the terms and trustees for the settlement of the legacies and shares of Mrs.- Warren and Mrs. Hunter, respectively ; with the form of an order to be made by the court respect*294ing the same ; ” in which he proposed the terms of the said settlements, and also recommended Charles D. Hunter and John L. Hunter as suitable persons to be appointed trustees of Mrs. Hunter, which was confirmed by Chancellor Désaussure, then presiding.

At January term, 1839, Chancellor Johnston presiding, the following motion was made on behalf of Chas. D. Hunter, viz: “ On motion of Wm. Haynsworth, complainant’s solicitor, ordered that upon Chas. D. Hunter’s complying with the order of this court heretofore made, appointing *Mm*trustee of his *wife,*Honoria, that the commissioner do transfer to *Mm*the bonds, bank stock, and money, in his hands holden, as the estate of the said Honoria Hunter, *in trust for her.*And that the said C. D. Hunter be authorized to *sell*the bank stock, and invest the proceeds thereof, together with the amount of the money and bonds aforesaid, in the purchase of lands and negroes, to be holden on the same trusts and limitations.”

His honor refused the motion; and the said Chas. D. Hunter appealed on the ground, that the appointment of *Mm,*as trustee, was already made, and ought not to be rescinded except on appeal ; that upon his complying with the said order of appointment, he will be entitled to the possession of the said funds, and that the proposed investment thereof would be to the advantage of the cestui qué trusts — or at least — whether it would be or not, is a proper inquiry to be referred to the commissioner.

Curia, per Johnston, Chancellor.

From the brief which states the facts correctly, it appears that the conditional appointment, made February term, 1836, was of two persons, as joint trustees.

The motion at January term, 1839, was to invest *one*of them, with the trusts. The court, in refusing it, did not decline to carry into execution the order previously made, but to alter and modify it. •

If the petitioner had applied originally, to be appointed sole trustee to his own wife, the application would have been unhesitatingly refused. In some few instances where such appointments have been inadvertently made, the consequences have been too *295disastrous not to have left the deepest conviction of their impropriety.

*Haynesworth,*for the motion.

It is certainly extraordinary that a tribunal, one of whose peculiar functions consists in securing the interests of, the' wife against the husband, should be asked to become the instrument for deliv-ing the separate property of the former, which it is bound to protect, into the hands of the latter, against whose power and control it is its duty to guard it.

The husband should never be introduced, either alone or in conjunction with others, into the execution of a trust for the wife : and it is distinctly and deliberately announced that this is a principle from which the court will not knowingly depart..

It is said that the order of 1836 stands in the way, and obstructs the appointment of other trustees. It is, therefore ordered that it be rescinded.

It is further ordered that the motion be dismissed.

David Johnson and Dunkin, Chancellors, concurred.