#### *Ann A. Daniel, by her next friend, vs. Seth Daniel and Joseph Allen.*

The marital rights of the husband will attach on money arising from the sale of personalty in the hands of the guardian of his wife; and the guardian will be discharged from liability to account to her, if, by the direction of the husband, he apply the money to a debt of the husband.

The proceeds of a ward’s real estate, sold by order of the court, cannot properly be paid by the commissioner, either to her guardian or her husband, without leave of the court.

The right of a husband’s assignee for valuable consideration to the proceeds of the wife’s real estate in the. custody of the court, is subordinate to the right of the wife to a settlement.

*Before*Harper, Ch., *at Beaufort,*

*February,*1845.

Bill for account of the estate of the complainant, with a prayer that the same be settled to her sole and separate use.

On the 30th November, 1838, the complainant, who was then a minor, intermarried with the defendant, Seth Daniel, who was then notoriously insolvent, and whose property was shortly af-terwards sold by the Sheriff under executions. The defendant, Joseph Allen,, had been appointed guardian of the complainant several years *before,*and had received her share of the proceeds of the personal estate of her father, Josiah G. Allen, deceased. In September, 1832, certain real estate of complainant’s father was sold for the purpose of partition, under a decree of the court of Equity for Barnwell district, and her share of the proceeds remained in the hands of the commissioner of the court. At the time of complainant’s marriage, Seth Daniel was indebted to one Fogler in the sum of $1400, be,sides interest, on a promissory note, to which Joseph Allen was surety. On the 7th January, 1839, Allen, as guardian of complainant, settled with his co-defendant, Daniel, and gave him a sealed note for $1517 99, that being the amount which he then had in his hands as guardian. At the same, time Daniel gave Allen a receipt discharging him from all liability to account as guardian of complainant; and two days after gave him another receipt as follows :

“ Received, January 9th, 1839, from Joseph Allen, guardian of my wife, Ann A. Allen, three hundred and fifty dollars, in full, for my claim to *the*real *estate of*Josiah G. Allen, deceased.

Seth Daniel.”

*116Before these transactions took place Allen had been sued on the note to Fogler, and judgment thereon had been recovered against him. At the time the note for $1517 99 was given, it was delivered to one John M. Allen, to make Joseph Allen safe in his suretyship for Daniel to Fogler, and to be returned to Joseph Allen when directed by Daniel. Some time afterwards the note was returned to Joseph Allen by the direction of Daniel, and on the 20th January, 1839, Allen gave Daniel a receipt in full for the Fogler debt. This debt, amounting with interest to $1749 96, was paid by Allen in June, 1839.

It did not appear that the amount of complainant’s share of the proceeds of the real estate sold for partition had been ascertained, or that the court of equity had made any order that it be paid to her guardian or her husband. But on the 4th January, 1841, the administrator of the commissioner in whose hands the proceeds were, paid to Allen $260, and Allen gave him a receipt therefor as follows:

“ Estate of Josiah Allen, January 4th, 1841.

Received from B. S. Sweat, administrator of G. J. Trotti, two hundred and sixty dollars, in part of the balance due the said estate. Joseph Allen.”

On hearing the cause on bill, answers, evidence and argument, his Honor, the chancellor, ordered that the bill be dismissed ; from which order the complainant appealed, on the following grounds:

1. Because the funds of the ward, in the hands of the guardian, were, in the contemplation of law, in court, and, in fact, within the control of the court; and the wife, being an infant, and the ward of the court, the funds in question could not be rightfully paid to the husband, except by the order of the court, or on terms of which the court would approve.

2. Because the marital rights of the husband did not attach on the funds of the wife, in the hands of her guardian ; and if they did, the right of the complainant to* a settlement was not thereby barred, or the obligation of the guardian to have a settlement executed, removed.

3. Because the court itself would not, under the circumstances of the case, have ordered the funds in question to be paid to the husband, except on the execution of an adequate settlement, and cannot, therefore, consistently, sustain such payment by the guar*117dian, who was merely a trustee, the agent of the court, and acting under its authority.

4. Because if, in this instance, the payment of the wife’s fortune, by her guardian, to her husband, is sustained, that protection which the court has ever extended to its wards, may, in ev-r ■ery instance, be defeated by the combination of an interested and selfish guardian with an insolvent husband.

5. Because the payment of the wife’s fortune, by the guardian, to the husband, without a settlemen, was, under the circumstances of the case, substantially a disposition of the funds, by the guardian, for his own benefit, to the irreparable injury of the ward; which the law will not permit.

6. Because the payment of the wife’s fortune by the guardian to the husband, without an adequate settlement, was, under the circumstances of the case, a contempt of the court, and a breach -of trust, for which the guardian is responsible, in the event of the inability of the husband to make such settlement.

7. Because, on general principles of equity, -the complainant is entitled to relief.

Patterson, for the motion.

Bellinger, contra.

Curia, *per*DuNKiN, Ch.

The complainant, then a ihinoi’, became the wife of the defendant, Seth Daniel, in the latter part of November, 1838. On the 7th January, 1839, a settlement was made between Daniel and his co-defendant, Joseph .Allen, who had been for several years the guardian of the complainant. It was ascertained that the guardian had received certain sums of money on account of the complainant’s share of her father’s personal estate. He gave his note for the amount, and took the husband’s receipt and discharge. The note was placed in the hands of á third person, and was settled by Allen’s paying a debt, in June following, which Daniel owed to one Fogler, and for which Allen was'surety.

The real estate of the complainant’s father had been sold, since his death, by the order of this court, and the fund was in the hands of the commissioner. On the 9th January, 1839, Daniel gave Allen a receipt for three hundred and fifty dollars, purporting 'to be in full of his wife’s share of her father’s real estate. In January, 1841, Allen received from the administrator'of the commissioner two hundred and sixty dollars, in part of the real estate.

*118The bill was filed for an account, and was dismissed by the Chancellor.

The grounds of appeal, as well as the argument offered in support of them, assume a very wide range; but it is deemed better in this, as in most other cases, to confine the judgment of the court to the questions presented by the pleadings and the proof. The only point is whether the defendant, Allen, has violated his duty as guardian, has been guilty of a breach of trust, on the ground that the complainant was under age when she married Daniel, and when he, the defendant, made the settlement with the husband.

In respect to the personalty, it seems to the court that, without more, this transaction cannot be impeached. It has been repeatedly held that the possession of the guardian was sufficient to vest the marital right. *Davis*vs. *Rhame,*1 McC. Ch. 191.

Allen was in possession of the wife’s money, or he was indebted to her in that amount. If the husband had sued him in his own name, the demand could not be resisted. If the guardian had actually paid the money to the husband, it is difficult then to perceive on what principle he should be afterwards accountable, although the wife was a minor at the time of the marriage. The validity of that ceremony not being impeached, its incidents necessarily attach. But the defendant has paid the money in discharge of the husband’s debt, and with his consent. As to the personal estate, the court is of opinion that the bill was properly dismissed.

But at the time of the marriage, the defendant, Allen, had received no part of the proceeds of his ward’s real estate. Having been sold under proceedings of this court, the fund was *still*in the custody of the court. It could not properly be paid over, either to him, or to the husband, without an order of the court.

Allen received the money from the administrator of the former commissioner in January, 1841, more than two years after his guardianship was at an end. It was the d,uty of the administrator to have paid over the funds in his hands to the successor in office of his intestate. This court cannot permit this irregular proceeding to vary the rights of the parties. The subject is fully discussed, and the duty of the court in regard to the interests of femes covert indicated, in *Wardlaw*vs. *Gray, 2*Hill Ch. 652. The receipt given by the husband on the 9th January, 1839, can have no greater effect than to place the defendant, (Allen) in the *119condition of the husband’s assignee for valuable consideration, and this claim is subordinate to "that of the wife.

It is ordered and decreed that the defendant, Joseph Allen, pay over to the commissioner the sum of two hundred and sixty dollars, with interest from the 4th of January, 1841; that the commissioner ascertain and report the whole amount due to the complainant on account of the proceeds of her real estate, and that he also report the terms of a settlement, and a fit and proper person to be appointed a trustee for the complainant.

It is further ordered that the defendant, Joseph Allen, pay the costs of the proceedings, except those of his co-defendant, Seth Daniel, who is to pay his own costs, and that the decree of the circuit court be reformed accordingly.

Johnson, Ch., concurred.

Johnston, Ch.

I concur in the judgment of this court so far as it goes ; but I am of opinion it should have extended to the whole fund, personal as well as reaL