
    *Armstrong’s Ad’mr & als. v. Pitts & als.
    January Term, 1856,
    Bichmond.
    (Absent, AiMrsr, P.)
    i. Wills — Devise in Trust for Use of Son and Family-Right of Creditors to Sue before Acquiring Lien.— Testator devises land and negroes to trustees for the use and benefit of his son A during his life, with the privilege that he may reside on said farm and have the use of said negroes so far as may be necessary for his support and maintenance, and for the support and maintenance of his family; and at his death the property tobe equally divided among his children. And he directs that the property shall not be liable for any debt which his son A might then or thereafter owe. Creditors of A not having recovered a judgment against him cannot come into equity to subject the trust property, though the debts were contracted for necessaries for the support of the family,
    2. Chancery Practice — Interlocutory Decrees — Errors— Correction in Lower Court, -A cause is heard upon the report of a commissioner which had not been returned for the legal period. The decree being merely interlocutory, the error should have been corrected by application to the court below; and it is not ground for an appeal unless, upon application, the court below refuses to correct it.
    In the year 1840 Ellis Armstrong of the county of Essex departed this life, having made his will, which was duly admitted to probate in the County court of Essex. By the first clause of his will he gave to John Armstrong and George Wright the farm on which he lived and nine slaves, upon the following trust; “for the use and benefit of my son Joseph N. Armstrong during his life, with the privilege that he may reside on said farm and have the use of said negroes, so far as may be necessary for his support and maintenance, and for the .support and maintenance of his family; and at his death, should his wife Susan survive him, then the said Susan may reside on said farm and have the use of said negroes, so far as may be necessary for the support and maintenance of herself and such children *as she may have by my said son Joseph N. during her widowhood, and no longer; and at the death of my said son Joseph N. and at-the death or marriage of the said Susan his wife, if she should survive him as herein before provided for, to be equally divided among the children of my son Joseph N. and their lawful issue. The issue of such as may be dead to take such part or portion only as his, her or their ancestor or ancestors would take if living.”
    By the fifth clause of the will it was declared that the property and estate given in the first clause should be in no way liable for any debt or liability which his son Joseph N. might thereafter or at that time owe.
    The executors and trustees refused to qualify or take upon them the burden of the trusts of the will, and the estate was committed to the sheriff of Essex.
    In January 1853 B. D. Pitts & Co. and Robert B. Rennolds filed their bill in the Circuit court of Essex county, against the administrator of Ellis Armstrong, John N. Armstrong and wife and their children, in which they set out the trust in favor of John N. Armstrong and his wife and children. They stated that Armstrong had become indebted to D. B. Pitts & Co. for goods, which were necessaries of the family suited to their condition and estate, and that he had become indebted to Rennolds for attendance upon his family as a physician. And they insisted that under the trust of the will and the principles of equity they were entitled to have their lebts satisfied out of the trust property: And such was the praj-er of the bill, &c.
    The bill was taken for confessed as to Armstrong and wife, and the husbands of two of the children and their wives, and there were answers by the administrator md the guardian ad litem of the infant children.
    In April 1853 there was a decree for an recount of the debts of the complainants and of the trust property. The commissioner filed his report on the 25th *of October 1853, in which he stated the debt due to D. B. Pitts & Co. at two hundred and fifty-nine dollars and five cents, and the debt due to Rennolds at two hundred and ninety-five dollars; both bearing interest; and the trust slaves were valued at four thousand two hundred and seventy-five dollars.
    The cause came on again to be heard on che report of the commissioner on the 12th of November 1853, when the court made a decree in favor of the plaintiffs for the sums reported to be due to them respectively, with interest, and also for their costs. ETom this decree the administrator of Ellis Armstrong and the adult children of Joseph N. Armstrong with their husbands applied to this court for an appeal, which was illowed.
    Griswold & Claiborne, for the appellants.
    Patton, for the appellees.
    
      
      Devise in Trust for Use of Son ánd Family — Right of Creditors to Sue before Acquiring Lien. — In the principal case it is held that creditors of the cestui que trust not having recovered judgment against him cannot come into equity to subject the trust property, though the debts were contracted for necessaries for the support of the family.
      This ruling is approved in the case of Salamone v. Keiley, 80 Va. 99, hut that case is distinguished on the ground, that the trustee in improving the trust property, created a liability on the property, and thereby involved it in a controversy properly cognizable in equity.
      That equity does not have j urisdiction in all cases simply because a trustee is a party, see Markham v. Guerrant, 4 Leigh 279; Sheppards v. Turpin, 3 Gratt. 373.
    
    
      
      Chancery Practice — Jurisdiction of Court — Where the Objection Can Be Hade. — In Slack v. Jacob, 8 W-Va. 655, the ruling of the principal case on p. 243 is quoted and approved, that is, that where the court of equity has no jurisdiction, the hill should be dismissed by the appellate court and that even though there was no exception made in the court below. And to sustain the proposition the court cites the following authorities including the principal case: Hudson v. Kline, 9 Gratt. 379; Jones v. Bradshaw, 16 Gratt, 355; Green & Suttle v. Massie, 21 Gratt. 358.
    
   MONCURE, J.

This case was first subnitted to the court on a preliminary ques-:ion, the decision of which in favor of the ippellants, it was supposed, would render it unnecessary to consider the case upon the merits. That question was raised by the third assignment of error, which is, that “it was irregular to hear the cause upon the commissioner’s report until thirty days after the same had been returned to the court.” Code, p. 659, ,ch. 175, 'i 9. In Gray v. Dickenson’s adm’rs, 4 Gratt. 87, referred to in the petition, this court, on a similar ground, reversed with costs the decree of the court below, without considering the other errors assigned. We would have to take the same course in this case, if it were like that in all respects: but it is not. In that case the decree appealed from was final. The defendant had not appeared and answered; and there was nothing in the record from which it could be inferred that the cause *was heard ¡ by consent, or that the objection to acting upon the report returned to the court so recently before the cause was heard, had been waived. The only remedy for the correction of the error was by an appeal. In this case, the decree appealed from is interlocutory: and though the bill was taken for confessed as to some of the parties, who cannot be considered as having consented to the hearing of the cause within thirty days after the return of the commissioner’s report, or as haying waived any objection thereto; yet they had an opportunity of having the error corrected by motion to the Circuit court; and if there had been no other error in the proceedings, ought to have pursued that course, rather than • subject the appellees to the expense and delay of an appeal. The right of appeal from an interlocutory order or decree was not given for the correction of such an error as this ; but is limited to “a decree or order dissolving an injunction or requiring money to be paid, or the possession or title of property to be changed, or adjudicating the principles of the cause;” and was intended to test the merits of the decree or order. If that be right upon the merits, and the only apparent error in the proceedings consists in the fact that the decree or order was prematurely made, the petition for an appeal therefrom may be rejected upon the ground that it is most proper that the case ‘ ‘should be proceeded in further in the court below, before an appeal is allowed therein. ” In other words, the petitioner should have the error corrected in the court below if he can. If his .application for relief to that court be overruled, he will then be entitled to come to this court and have the decree or order reversed with costs. But if he come to this'eourt without having first unsuccessfully applied for relief to the court ‘below, though he will be entitled to have the decree or order reversed on account of that error; yet the question of costs will depend upon *the question, whether the decree or order be correct in principle, upon the case as it stands; and if it be so, the appellee will recover costs as the party substantially prevailing. This is the principle of the decision of this court in Cunningham v. Patteson, 3 Rand. 66; in which the court said that the appellant not having made his objections in the court below, “shall not lie by and take advantage of them in the appellate court, to throw on the opposite party the costs of an appeal, which the law never intended to allow for the correction of such defects. ’ ’

The court having announced that, whatever might be its opinion upon the preliminary question submitted, it would • be necessary to consider the question, whether the decree be correct in principle; the case was then fully submitted for its decision.

In considering the case upon its merits, the first question which presents itself is, Whether the appellees áre entitled to any relief in the case as it now stands? In other words, Whether a court of equity has any jurisdiction of the case?

The appellees have obtainéd no judgments upon their claims. They are creditors at large of Joseph N. Armstrong. They do not come into court under chap. 179, 'i 2, p. 677 of the Code, “to avoid a gift, conveyance, assignment or transfer of, or charge upon, the estate’ ’ of their debtor. They do not claim to be beneficiaries under, or privies to, the trust created for their debtor by the will of his father. Nor do they set any claim to a lien on the trust subject under any contract with the trustee, or even with their debtor. They claim only as general creditors of Joseph N. Armstrong, and upon the ground that their claims are for necessaries furnished for the use, maintenance and' support of the said Armstrong, his wife and family; and that they are therefore, as they insist, “entitled to be paid out of the property given by the *will aforesaid to the said Joseph N. not only in accordance with the principles of equity, but according to the express provisions of said will. ’ ’ The claim of a creditor against his debtor is generally in personam only. He can acquire a lien upon specific property, only in some mode prescribed by law, or under some contract made for that purpose, or some trust created for his benefit. If his debtor be a feme covert entitled to separate estate, he can have no claim against her personally, because she is incapable in law of making a contract, to bind herself personally; and can only bind her separate estate; as to which she is regarded in equity as a feme sole. All the contracts which she is authorized, to make under the settlement, are considered as - contracts made in reference to, and as binding upon her separate estate. Her creditors' therefore cannot sue her at law, but must go into equity in pursuit of that estate. But if the debtor be sui juris, the creditor cannot go into a court of equity merely because a trust has been created for the benefit of the debtor. He has no more specific lien or claim upon the trust subject than he has upon any other property of his debtor. That he looked to that subject for the satisfaction of the debt when it was created, can give him no such lien or claim. He no doubt then looked to all the property of the debtor for that purpose. In this case the will gave no separate estate to the wife of Joseph N. Armstrong: and not she, but he is the debtor. The trust subject is therefore not bound in equity for these claims, unless bound for them by the provisions of the will, as the bill insists. Now the express object of the trust was to prevent the subject from being bound for the debts of Joseph N. Armstrong; it being by the fifth clause of the will express^ declared that the propert}- given in the first clause (which creates the trust) shall be in no way liable for any debt which the said Joseph N. might *then or thereafter owe or be bound for. Whatever may be the effect of this clause in securing to Joseph N. Armstrong and his family the enj 03-men t of the trust subject against the claims of his creditors, it certainly excludes all idea of any right on the part of those creditors to come in as beneficiaries under the trust. Their claim upon the subject, ii any, must be against, and not under, the terms of the trust. It must be founded on some contract with the trustee or the cestui que trust, which they or either may have a right to make. It is not pretended that any contract at all was made with the trustee nor any contract for a lien, with the cestui que trust. The claim is solely based upor a general contract with the cestui que trust, and the principles of equity and the provisions of the will. That these are no' sufficient to create a lien and give the appellees a right to come into equity, has already been sufficiently shown. That nc contract with a cestui que trust in such i case could give his creditors a lien on the trust subject, and a right to come inte equity to subject it to the payment of then claims, is conclusivel}- shown by the case of Markham v. Guerrant & Watkins, Leigh 279, which in most of its features is very much like this. Of all the cases referred to 'on either side, that is the only one in which the creditors came into a court oJ equity to charge the trust subject with theii debts, without first having obtained judgments for them at law. In the other cases the creditors had obtained judgments anc were seeking to enforce them against the trust subject at law when they were enjoined at the suit of parties claiming undei the trust. In that case the creditors came into equity on the alleged grounds that relying on the credit of the trust estate the} had furnished sundry necessary supplies tc John Markham and his family, that Rleming the trustee had assumed the paymen1 of the debt out of the trust estate b3 a ^letter which was exhibited, anc that Markham had lately died leaving no property but the trust estate. The bil was dismissed without prejudice to an} other remedy to which the appellees migh be advised to resort. “It behooves ever} one (said the court in that case) who deal: on the credit of a fund like this, to look t< the deed and see how much can be dis bursed; and to make his bargain before hand with the trustee. In this case then ! do not think that the appellees b}r thei: dealings with the faxnily, acquired any right to charge the trust fund: if they did, every other person who chose to let the cestuis que trust have goods or property would have the same right; and thus the check interposed by the deed would be destroyed, and one year’s extravagance swallow up the revenue of years to come, and leave the wife and children to starve.” The court strongly inclined to the opinion that even the trustee could not bind the fund by anticipation, and thus absorb the supi>ort of future years ; and intimated that the proper course to be pursued by persons furnishing necessaries to a family in such a case is, to Apply the trustee to know how far they may go in trusting the cestuis que trust: in which case he will be personally liable to the extent of the dealings he may have authorized, and may indemnify himself out of any of the trust funds which may come to his hands and be properly applicable to that purpose. That case was more favorable to the claims of the creditors than this is. In that case, by the terms of the trust, all the profits of the trust subject were applicable to the support of the family ; whereas, in this case, while the trust subject is given for the use and benefit of Joseph N. Armstrong during his life, it is “with the privilege that he may reside on the farm and have the use of the negroes, so far as may be necessary for his support and maintenance, and for the support and maintenance *of his family.” If the bill was properly dismissed in that case, so it ought to be in this. That case is a binding authority in itself, and has been recognized and followed in subsequent cases in this court. Nickell v. Handly, 10 Gratt. 336; Johnston v. Zane’s trustees, 11 Id. 552.

It would be premature, and is not intended to intimate any opinion in this case, whether, and to what extent, the trust subject or its profits may ultimately be made liable to the claims of the appellees; the court being of opinion, that whether so liable or not, and to whatever extent liable, they can have no right to come into equity to enforce any such liability until they shall first have obtained judgments at law. And then, if there be a liability which cannot be enforced at law, they may come into equity to enforce it. Upon the question of liability, whenever it may properly arise, the cases cited by the counsel, in addition to that of Markham v. Guerrant & Watkins, may have an important bearing. Those cases are Scott v. Gibbon, 5 Munf. 86; Scott v. Loraine, 6 Munf. 117; Galt v. Carter, Id. 245; Rankin v. Bradford, 1 Leigh 163; Roanes v. Archer, 4 Leigh, 550; Butler v. McCann, Id. 631; Nichell v. Handley, 10 Gratt. 336; Johnston v. pane’s trustees, 11 Id. 552. See also Hughes v. Pledge, 1 Leigh 443; Wallace & wife v. Dold’s ex’ors, 3 Id. 258; Stinson, ex’or v. Day & wife, 1 Rob. R. 435; Perkins, trustee v. Dickinson, 3 Gratt. 335; which may have some bearing on the question.

That the bill, not showing on its face proper matter for the jurisdiction of the court, may be dismissed for want of jurisdiction, notwithstanding- no exception on that ground was taken in the court below, is shown by the case of Hudson v. Kline, 9 Gratt. 379.

The court is therefore of opinion that both the decree of the 25th day of April 1853 and the decree of *the 12th day of Hovember 1853 are erroneous, and ought to be reversed with costs, and the bill dismissed with costs, but without prejudice to any other remedy to which the appellees may be advised to resort.

The other judges concurred in" the opinion of Moncure, J.

Decree reversed.  