#### *Andrew Mayer*vs. *Joseph Galluchat and Wife and another.*

Defendant, in answering a bill, is not bound to respond to an allegation as to his own insolvency.

A trustee cannot charge the trust estate with a counsel fee paid to himself.

Husband being insolvent, and wife entitled to a separate trust estate, they with their child and servants board with the plaintiff. The debt for board is a legal demand against the husband, and the trust estate is not liable for it.

*Before*Dunkin, Ch., *at*Lancaster, *June,*1853.

This petition was filed for payment out of the separate trust estate of Rebecca, wife of Joseph Galluchat, of certain demands *2of the petitioner for board furnished them, their child and servants. The petition alleged that Joseph Galluchat was insolvent as well when the board was furnished, as at the filing of the petition; and the answer contained no response to this allegation. The trust estate was held under two instruments. First, under an ante-nuptial contract, to which there was no trustee; and, secondly, under a settlement, to which the defendant, William M. Moore, was trustee, made by order of the Court, of property which accrued to Mrs. Rebecca after the marriage.

The petitioner excepted to the answer for insufficiency, because the charge as to the insolvency of Joseph Galluchat was not answered.

Dunkin, Ch. Before considering the merits of this case, it is proper to dispose of the exceptions to the answer. Strictly, the plaintiff is only entitled to a discovery from the defendant, as to matters within his own knowledge, and which cannot be established in the ordinary mode — such is not an interrogatory as to the defendant’s insolvency. That is a fact to be proved in the usual way. The return of a *fi. fa. nulla Iona,*or a discharge under *ca. sa.,*wouM entitle the plaintiff to any advantage he might derive from shewing the insolvency of the defendant. The answer seems to the Court sufficient in form.

As a preliminary, or rather incidentally, the Court would remark, that a trustee cannot charge the trust estáte with a counsel fee paid to himself. This has been repeatedly ruled. An executor cannot charge for overseer’s wages allowed to himself nor for professional services as a physician, (see *Reed*vs. *Stoney,*Ap. Charleston, Feb. 1851.) In other words, he can make no contract with himself. He may employ another overseer, another physician, another lawyer, and pay them for their, services, which payment will be allowed him. But he can make no bargain with himself. Exhibit (B) dated 3d February, 1853, filed with defendants’ answer, will shew to what the remark is applicable, and which can be corrected by the Commissioner in the next annual return of the trustee.

*3It seems that the plaintiff keeps a tavern in the village of Lancaster, and that the defendant, Galluchat and his family-boarded with him for about a year prior to March, 1848; that he owed him $45 58 cts., for which he took his note and obtained judgment in March, 1848, and the execution was returned *nulla bona*March, 1849. From December, 1849, to October, 1850, they again boarded with him, and the whole amount due is about $264. It is alleged that the husband is insolvent, and this is an application to subject the trust estate of the wife to the payment of the plaintiff’s demand. The trust estate was derived entirely from the wife’s interest, as distributee of her father and mother. Her interest in her father’s estate was secured by an ante-nuptial settlement in 1S46 — that in her mother’s by the decree of this Court, made in 1S50, while the parties were boarding with the plaintiff.

The demand of the plaintiff is a plain legal demand against the husband, Joseph Galluchat. Neither he nor his wife had any authority to bind the trust estate; and there is no evidence that either of them made the attempt. As I have said in *Adams*vs. Mackey, parties must look to those with whom they contract. The trustee is the legal owner of the estate. If persons are unwilling to give credit to the *cestui que trust,*they must contract with the trustee, or refuse the credit altogether. If they contract with the trustee, it is still a legal demand, for which they have a legal remedy, and the trustee may reimburse himself from the income, provided the charge be proper. The principles are very familiar, and it is not deemed necessary here to review them. The Court is unable to recognize any

ground which would authorise the relief asked.

The petition is dismissed.

The petitioner appealed on the grounds:

1. Because it is submitted that the Chancellor erred in not sustaining the exception to the answer, which was, that they did not confess or deny that the husband was insolvent, as the petition alleged.

*42. Because, as there was no trustee under the ante-nuptial' agreement with whom to make a legal contract, and as the board and servióes were beneficial to the trust estate, the decree should have, made it chargeable in the same way as if the trustee was applying in the first instance for leave to use so much of the trust estate as would be sufficient to board the wife, child, and servants of the wife, as charged for in the petition.

3. Because the wife’s portion of her mother’s estate was settled, after the board and services were rendered.

4. Because, it is submitted, the Chancellor erred in not ordering a reference to ascertain the necessity and benefit of the board and services rendered, which was moved for on the part of the petitioner.

*Caston,*for appellant.

Moore, contra..

*Per Curiam,.*

We concur in the decree; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dtínkin, Da'rgan and Wardlaw, CC., concurring.

*Appeal dismissed.*