#### E. A. Tupper, et al., *vs.*Thomas Fuller, et al. B. D. Lazarus *vs.*William Fuller, et al.

Where husband and wife have a joint interest in property, under marriage settlement, with remainder to issue, &c., “necessaries furnished for the family” are a charge against the husband — not against the trust estate — and the creditor can subject only the husband’s interest to his demand.

Demands for the food and clothing of negroes, overseer’s wages, and other annual expenses of the plantation held in trust, should be borne by him who is entitled to the annual income, and is not chargeable to the *corpus.*

The facts of these cases are very fully stated *in*the following decree of Ch. DuNKIN, rendered on the 7th of May, 1851:

DuNKIN, Oh. These bills have the same object, and, so far as the Court can perceive, might, and should have been embraced in one proceeding. They are suits instituted by the creditors of William Fuller, and the purpose is to subject his interest under a marriage settlement to the payment of his debts. The settlement was executed in December, 1828, in contemplation of the marriage of William Fuller with Margaret L. Gruerard, and comprised the estate of the lady, consisting of landed property and one hundred and twenty-three slaves — the trusts of the deed, among others, as follows, viz.: “ to hold the same, and to receive and pay over the profits thereof to the said William Fuller and Margaret L., during their joint lives. Upon the death of either the said William or Margaret, leaving issue of the marriage, to hold the premises, and receive and dispose of the profits thereof for the support of the survivor, and the maintenance and education of such issue. Upon the decease of such survivor, then to distribute the same among the issue,” &c. Should no issue be alive at the death of the survivor, then the premises are to be at the disposal of William *171Puller, by deed or will, or, in default thereof, to bis right heirs. Mrs. Fuller died in September, 1848, leaving surviving her the said William Fuller, and four sons, the issue of the said marriage ; the eldest of whom was about twenty-one years of age, at the time of the hearing of the cause.

On the 2d March, 1850, an order was made by Chancellor JOHNSTON, directing, among other things, that the Commissioner *“*should set forth a schedule of the property covered by the deed of settlement, and the value of the respective portions thereof — and what proportion of the said settled property, now in the 'hands of the trustee, is equivalent to the said William Fuller’s entire interest, present and contingent; and whether it is practicable to separate his interest, so. to be ascertained, and secure the rest of the estate for the exclusive use of the children of the said marriage.” This decretal order was entered by consent.

The Commissioner’s report was made on the 22d February, 1851. He includes, as part of the trust estate, the plantation called “Baileys,” valued at five thousand two hundred and seventy dollars. The complainants insist that this plantation belonged to William Fuller in his own right, and constituted no part of the settled property. It appears, from the evidence, that William Fuller came into possession of this plantation in December, 1829. It had been previously the property of Tho mas Fuller, senior, who had purchased from the trustee of the Prescott Fund, to whom a considerable balance was due. No conveyance of the premises was produced; but the slaves of the trust estate were employed on the land. It constituted the winter, or country residence, of William Fuller and his family. On the 11th December, 1829, William Fuller executed a mortgage of the plantation to Thomas Fuller, senior, to secure a bond of five thousand four hundred dollars, said to be part of the purchase money of the mortgaged premises, which mortgage was duly recorded on the 4th January, 1830. At the January Sittings, 1839, of this Court, a petition was presented by the *172trustee of William Fuller and wife, setting forth, among other things, that shortly after the marriage, a plantation had been purchased, with the consent of the petitioner, for the trust estate; that a balance remained due thereon, and also setting forth other claims on the estate, and prayed a sale of fifteen slaves to discharge the debts. An order to that effect was made; and, in January, 1840, the trustee reported that he had sold the negroes for ten thousand dollars, and had applied seven thousand five hundred and twenty-nine dollars and thirty-five cents of the proceeds to discharge the balance due to Thomas Fuller, senior, for the purchase of the Baileys Plantation, which, as the report stated, had been “settled for ” by the bond of William Fuller, and by assuming a debt of Thomas Fuller, 'senior, to the Prescott Fund. This report of the trustee was confirmed by the Court, January, 1840.

The creditors insist that, as Baileys was mortgaged by William Fuller for the purchase money, and the mortgage was recorded, it must be dealt with as his property. The evidence appeared to the Court very satisfactory that William Fuller purchased Baileys as agent for the trust estate. He is a party to the proceedings of 1839, .in which the facts in connection with it are set forth; but in the view which the Court takes, it is not necessary to discuss, very fully, the relative rights of the trustee to the marriage settlement, and the creditors, arising out of the apparent legal title. William Fuller mortgaged the property in December, 1829, to secure a bond of five thousand four hundred dollars. In 1839 the trustee paid off this debt to the amount of seven thousand five hundred and twenty-nine dollars and thirty-five cents, and is entitled to be subrogated to all the rights and all the securities held by the mortgagee whose claim he satisfied. Baileys is not worth more than five thous- and two hundred and seventy dollars, and would, therefore, be wholly insufficient to satisfy the amount due on the mortgage. No injustice is then done to the creditors of William Fuller by *173regarding it, as reported bj the Commissioner, a part of the trust estate.

Estimating the entire value of the trust estate at seventy-six thousand three hundred and twenty dollars, the Commissioner has fixed the interest of William Fuller, both present and contingent, at one-tenth, or seven thousand six hundred and thirty-two dollars; and recommends, or rather submits, that “ this interest may be set off in negroes, or the crop on hand and so many negroes as will make the sum.” The demands of the complainants amount to six thousand six hundred and seventy-three dollars and thirty-six cents; and they were contracted for “necessaries for the support of the family, and for overseer’s wages.”

It has been already stated that the order of 2d March, 1850, under which this report was made, was entered by consent. It is the decree of the parties themselves. To the report no exceptions were filed; but, at the hearing, the complainant moved for an order of sale of so much of the settled estate as would satisfy the demands against William Fuller, which had been established before the Commissioner. This motion was resisted by the defendant’s solicitor. The case is of some novelty, and of much importance to the parties; and was very slightly discussed. The interest of William Fuller in the premises, is altogether of an equitable character. His judgment creditors have no preference over simple contract creditors. If, as charged in the bill, he is insolvent, all his creditors should be admitted to a distributive share of the fund; but the Commissioner reports that the debts established were for necessaries for the family, and for overseer’s wages. Should these debts be exclusively chargeable on the equitable interest of William Fuller ? Had he received funds of the trust estate, which should have been applied to the payment of these demands ? This inquiry may, or may not, be important. But the proposition is, not to sequester the interest of William Fuller; not to direct what he would be entitled to receive annually to be paid to the *174creditors, but that the children should purchase out the interest of their father at a valuation fixed by the Commissioner. It is upon this point alone, that the Court determines its inability to proceed without other parties. The children of the marriage have a direct and immediate interest in the proposal for a sale. They are ,named in the proceedings, but no answer is filed in their behalf, nor do they appear to be represented in such manner as would bind their interests. Certainly no sale would be ordered, until a special inquiry was directed whether such sale would he for their interest. So far as the Court can judge, it would, in this instance, be very much to the advantage of the children that the report should be adopted, as it seems *to*the Court that a very low estimate has been put on the interest of William Fuller, under the marriage settlement. But it would be fruitful of mischief to act upon such impressions, until those principally interested were fully represented, and their rights investigated and considered.

It is ordered and decreed, that the report of the Commissioners, bearing date 22d February, 1851, be filed as of that date; and that the necessary measures be adopted for obtaining the answers of such of the defendant’s children of thé late Margaret L. Fuller, as have not yet answered the bills — parties to be at liberty to apply for such further orders as may be necessary to prepare the cause for hearing.

From this decree there was no appeal. Richard Fuller, one of the infant defendants, subsequently died. Two of the others, Henry M. and Arthur Fuller, put in their answers, submitting their rights to the Court. William Fuller the younger having come of age, answered, expressing his willingness that provision should be made for the plaintiffs out of the income of the estate generally, but denying their right to a severance of the interest of the *eestui que trusts.*

The cases were again heard before his Honor, Ch. Wardlaw, at February Sittings, 1853, when the following order was passed:

*175On motion of Mr. Treville and Mr. Pickling for the creditors of William Fuller, it is ordered that the trustee, Thomas Fuller, do forthwith take the trust estate of William Fuller and his children into his possession and management; and that after providing for the maintenance and education of the children of the marriage of William Fuller with Margaret L. Guerard, he do pay over the balance of the annual income of the estate rateably to the judgment debts of the said William Fuller which have been established, until the further order of this Court. It is further ordered, that the said Thomas Fuller do account annually in this Court for his actings and doings as receiver of the said estate. It is further ordered, that it be referred to the Commissioner of this Court to inquire, and report, whether the sale of William Fuller’s interest in the settled property, upon the terms, and under the conditions proposed, will be advantageous to the infant parties, with leave to report any special matter.

From this order the defendants appealed on the grounds: •

1. Because his Honor has sequestered the income of William Fuller alone, in satisfaction of the plaintiffs’ claims; whereas, it is submitted, that the Commissioner having reported them to be debts contracted for the benefit of the trust generally, and there being no proof that William Fuller had received funds which should have been appropriated to their settlement, his Honor should have charged the payment of them, if it was to be charged at all, after providing for the comfortable maintenance of the whole family, on the income of the trust estate generally.

2. Because the fact of the claims having been reduced to judgments at law, entitles them to no higher consideration in equity, than they had when existing in the character of simple contract debts, inasmuch as they were not only set up in this *176court by tbe plaintiffs as charges against the trust estate generally, but were proved by them to have been in their origin contracted for .the benefit of the trust estate; and it is submitted that the plaintiffs should be held to the case made by them before this Court.

3. Because the scheme of the trust, according to the provisions of the deed of settlement, is, that the estate shall remain together until .the death of the survivor of William Fuller and Margaret his wife; and that none of the *cestui que trusts*shall have partition of either capital or *income;*whereas his Honor has in effect directed a partition of both.

4. Because under the circumstances, this Court has no power to exchange legal for equitable interests, especially where one of the defendants, who is of full age, objects.

5. Because the order is in other respects contrary to equity.

*3. 3. llhett,*for appellants.

Treville, *Fielding,*contra.

The opinion of the Court was delivered by

JOHNSTON, Oh.

It is stated generally in the bills, — particularly in that of Lazarus, — that the accounts contracted by William Fuller, were mostly for “necessaries for the family, and for the benefit of the trust estateand it is said in the other bill, that the demands. set up by Nix were for services rendered as overseer of the trust plantation.

It is very clear tha^mecessaries furnished for “ the family,” must stand upon a very different footing from advances made for the support (or to maintain the existence) of the trust estate. Advances made to a beneficiary, constitute a mere debt against him; and implicate the trust estate only so far as the interests *177of sueb benéfíciary in it can be reached and subjected by proceeding in this Court.

William Fuller, who contracted the debts sued on in this case, was bound to support his family, and for the purpose of enabling him to do so, the interests which he has under the settlement were conferred upon him.

During the life of his wife, he had, with her, a joint right to the income and profits; and, her interests not being to her separate use, he had a control over the whole income; and this he should have employed to support “the family.” The children, during the lives of both their parents, had no interest in the income to be made the subject of a contract by themselves; and, besides, their infancy forbad their entering into contracts.

Upon inspecting the accounts filed with the bills, I do not find a single item which could justly be charged upon the *corpus*of the trust estate, or upon the interest of any other party than William Fuller, who made the contracts with the different creditors. There is not a single item which went to swell the value of the trust estate. There is a small portion of the goods taken up, which may have been designed for the use of the negroes, and other property covered by the settlement. But the annual food and clothing of the negroes, and other annual expenses of the plantation, should, certainly, constitute a charge upon the annual income, and be borne by him who was entitled to the income then accruing. These observations apply not only to the merchants, accounts, but also to the overseer’s wages; the obligations for all of which were incurred before the death of Mrs. Fuller, and while William Fuller was solely entitled to control the income. If the truste'e had contracted and paid these debts, he should have settled them with Mr. Fuller out of his income; and, being contracted by Mr. Fuller, himself, his share of the income should alone be resorted to for this payment.

If the demands in this case were chargeable to the children, there are some points which would deserve attention. For *178example, look at tbe account of Lazarus. That account was opened the 1st of April, 1844, and closed the 1st of March, 1848. Mrs. Fuller died in September following, (1848,) until which time no interest accrued to the children under the settlement. The account amounted to one thousand and forty-one dollars and sixty-five cents: yet when it went into judgment, in March, 1849, it was swelled by the allowance of two hundred and twenty-nine dollars and fifty-two cents for interest, to one thousand two hundred and seventy-one dollars and seventeen cents; and by the terms of the confession, this, latter sum, (the whole, judgment, say one thousand two hundred and seventy-one dollars and seventeen cents,) which did not bear interest under the statute of 1815, was made to bear interests: and all this, it is contended, should be charged, *pro rata,*upon the children, William Fuller may be properly chargeable with it under his confession; but certainly, if the property or interest of the children were concerned, the demand should be abridged.

Looking to the grounds of appeal in this case, — so far as they have not been already observed upon, — it is not perceived that there is anything in the order of Chancellor Wardlaw to complain of. It certainly was quite irregular (by-the-by) to bring up, by an appeal on behalf of all the defendants, matters in which the infant defendants had an interest directly opposed to the grounds of appeal. This is manifestly the case with regard to the two first grounds set down in the brief.

The Chancellor, we think, has very properly protected the rights of the children, by his order. From the death of their mother, they were entitled to so much of the income as may be necessary to their maintenance and education. Ey his order this is reserved to them. The accounts of the trustee, which he has been ordered to report annually *in this case,*may be excepted to by any party who thinks the expenditures for the children unreasonable. The residue, only, of the income belongs to William Fuller; and of this the, order gives his creditors the benefit.

*179This is all that is positively determined by the order. The point referred to the Commissioner is as yet merely speculative. When the report comes in, it will be time enough to except.

It is ordered that the appeal be dismissed; and the order appealed from affirmed.

Dunkin, Dakgan and WARDLAW, CO., concurred.

*Decree*affirmed.