
    BLOODGOOD against MICKLE.
    
      Supreme Court, First District;
    
    
      Special Term, March, 1873.
    Husbattd akd Wife.—Parties.—Separate ' Property.—Demurrer.
    The equitable right of a married woman, under a trust created by another person, by which income is to be applied to her use for life, •since it is not assignable, is not to be deemed her separate property ; and her husband is, therefore, a proper party to an action affecting the same.
    The provision of Laws of 1860,—that a married woman may sue and be sued in all matters relating to her sole and separate property without joining her husband,—does not apply to an action affecting a mere equitable right under a trust, ‘which is not capable of assignment.
    'Guardians of the property of an infant are necessary parties in an action affecting the property; and a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action against them, cannot be sustained merely because no reeovery could be had in the action against the personal estate of the infants. If any cause of action calling for any relief whatever as to which the guardian should be heard, appears in the complaint, the demurrer must be overruled.
    A testamentary trustee, with the approval of the general guardians of minors interested in the trust property, made a contract for the erection of a building thereon. Held, that the guardians were proper parties to the contractor’s action to recover his compensation on the contract; and that the trustee having died, his administratrix was also a proper party, because, if the contract should prove to have been unauthorized, the plaintiff would be entitled to recover against the administratrix in enforcement of the trustee’s individual liability.
    
    
      This action was brought by Matthias Bloodgood against George Benjamin Mickle and others.
    Rachel Miller was seized in fee of an undivided half of certain premises situated in Dey-street, in the city of New York, together with other premises as tenant in common with one Andrew Mickle.
    She died October 7, 1848, leaving a will, and leaving her surviving, Caroline Augusta Mickle, her daughter, who was married to Andrew H. Mickle, and four grandchildren, the children of said daughter, namely, George Benjamin Mickle, Rachel Augusta Mickel, Louisa Farrington Mickle, and Hannah Russel Mickle.
    Caroline Augttsta Mickle died on March 15, 1849. Her son, George Benjamin Mickle, is still living, having two children. Her daughter, Rachel Augusta Mickel, married William E. Lawrence, and died. August 28, 1868, leaving her surviving six children, all under age, except one, and their guardians are Henry E. Lawrence and Francis E., his wife.
    Louisa Farrington Mickle married Theodore Townsend, and died in August, 1862, leaving her surviving four children, all under age, and their guardian is their father.
    Hannah Russel Mickle married Edward A. Lawrence, and both are still living. They have five children living.
    By her will, Rachel Miller, after making certain bequests and devises, directed her trustees to receive the income of her estate and apply one-fourth part to the use of George Benjamin Mickle for life; and upon his death she devised the said one-fourth part of her estate to his heirs at law.
    She furthe'r directed the trustees to apply the income of another of said fourth parts to the use of Rachel Augusta during her life, and upon her death, said one-fourth part was devised to her heirs.
    She directed the income of another fourth part to be applied to the use of Louisa Farrington, during life, and upon her death, said one-fourth part was devised to her heirs ; and the income of the remaining fourth part was devised to Hannah Russel for life; and upon her death, to her heirs at law.
    She appointed trustees under her will, and in or about 1864, William E. Lawrence became the' sole surviving trustee thereunder.
    In 1849, the lands held in common by Andrew Mickle and the estate of Sarah Miller were partitioned, and the premises in Dey-street were set apart in severalty with others to the estate of Rachel Miller.
    About the year 1867, by certain proceedings in the supreme court, the mayor, aldermen and commonalty of the city of New York, for the purpose of the extension of Church-street, took possession of the greater portion of these premises, and for which an award was made of over sixty thousand dollars, which award William E. Lawrence, as trustee under the will of Rachel Miller, on June 5, 1869, receivéd.
    The remaining portion of said lot would have been entirely unproductive, unless a new building should be erected thereon.
    Thereupon, William E. Lawrence, as trustee, with the approval of the general guardians of each of the parties interested, made a contract with the plaintiff for putting up a building upon that portion of the lot which remained.
    Lawrence paid to the plaintiff the whole amount of the contract price, except the sum of about seventeen hundred dollars, for the recovery of which this action is brought.
    William E. Lawrence, on January 13,1871, by virtue of a power contained in the will of Rachel Miller, made James N. Platt his co-trustee.
    William E. Lawrence shortly after died intestate and insolvent, and the defendant, Hannah S. Lawrence, was appointed his administrator.
    In bringing this action the plaintiff has made parties defendants, among others, Edward A. Lawrence, the husband of said Hannah R. Lawrence, Henry E. Lawrence, and Frances E. his wife, guardians of the infant children of Rachel Augusta Mickle, Theodore Townsend, guardian of the infant children of Louisa Farrington Mickle, and also Hannah S. Lawrence, as administratrix of William E. Lawrence.
    Upon behalf of all these defendants general demurrers have been interposed. ,
    
      T. C. S. Buckley, of counsel for the defendants, Theodore Townsend and Edward A. Lawrence,
    
      James W. Gerard, Jr., of counsel for defendants, Henry E. Lawrence and wife.
    
      George W. Denton, of counsel for defendant, Hannah S. Lawrence, administratrix.
    
      William Mitchell, of counsel for plaintiff.
    
      
       Compare Barry v. Equitable Life Insurance Co., 14 Abb. Pr. N. S., 385; Hann v. Van Voorhis, p. 79 of this volume,
    
   Van Brunt, J.

The defendant, Edward A. Lawrence, is sued as the husband of Hannah R. Lawrence, who has only a right to the income of one of the shares mentioned in the will of Rachel Miller; and it is •claimed that this, being the separate property of the .defendant, Hannah R. Lawrence, in which he as her husband could have no interest, that he is not a proper party to the action.

By section 7 of the act of March 20, 1860, relating to the rights and liabilities of husband and wife, it is provided that any married woman may, while married, sue and be sued in all matters having relation to her property, which may be her sole and separate property, in the same manner as if she were sole ; and the decisions have been uniform, that in all actions relating to the separate estates of married women, their husbands should not be joined. It seems to have been settled by the court of appeals, in the case of Noyes v. Blakeman, 6 N. Y. [2 Seld.], 567, that such an interest as Hannah R. Lawrence has acquired, under the will of Rachel Miller, is not either property, nor is it in any sense an estate, but is merely.an equitable right, which she can enforce against the trustee, and which she is incapable of assigning or disposing of. If such interest is not to be considered as her separate property, as the case cited seems to indicate, then the provision of the law of 1860 does not apply, and her husband is a proper party to any action brought in respect to it.

The defendants, Henry E. Lawrence, and Prances E. his wife, and Theodore Townsend, general guardians of the infant defendants, have also demurred to the complaint, upon the' ground that the complaint does not contain facts sufficient to constitute a cause of action against them. It is to be noticed that it is not pretended that the plaintiff has any cause of action against them, or either of them individually, and the demurrer seems to be based upon the ground that no recovery against the personal estate represented by the general guardians can be had in this action.

Por the purpose of disposing of this demurrer, I do not think it at all necessary to consider this question, because, if any cause of action calling for any relief whatever, as to which the guardians should be heard, is made out by the complaint, the demurrer must be overruled. It seems to have been conceded that the plaintiff has some equitable rights against the premises or trustee, and if any equitable lien is to be established by means of this action against the share of the infant defendants, the guardians are necessary parties, because they are not only entitled to receive the share of all income of the infants arising from the real estate, but are also supposed to. be in joint possession thereof with the trustee; and if this income is to be burdened in any way, or this possession is to be disturbed, they undoubtedly have the right to be heard upon that question; and no court would make any decree or judgment in their absence.

I do not deem it necessary to determine whether the guardians had any right to use their wards’ money for the improvement of their real ertate, or how far they may be estopped by their assent to the contract mentioned in the complaint, because it seems to me that under the complaint the plaintiff might make out such a case as would justify the court in giving him some security for the debt upon the premises improved by his expenditures, although I much doubt if it would take any part of the other estate of the infants to liquidate any such claim.

The defendant, Hannah S. Lawrence, as administratrix of William E. Lawrence, deceased, has also put in a general demurrer.

She is undobubtedly a proper party; because if the court upon the trial of this cause should hold that the contract made by the plaintiff with Lawrence as trustee should not be ratified, and that Lawrence had no power to make any such contract, then Lawrence would be held individually liable for the amount due the plaintiff, and the court would give judgment accordingly against his administratrix.

The demurrer must be overruled.  