
    Eli Ferguson vs. Seth Applenhite.
    Where a trustee is seeking, by bill in equity, possession merely of the trust-property, it is not necessary for him to bring before the court the other parties interested in the trust, but -who had nothing to do with the question of possession.
    A. alleged in his bill that J. executed a deed of gift of certain slaves to A. as trustee for the children of A.’s two daughters, M. and N.; the slaves to be held by A. for the benefit of M. and N., until their youngest children arrived at age, and then the slaves were to be equally divided' among all the children. M. married F., who took the slaves into possession ; M. died leaving four minor children; N. was living, with minor children ; F. refused to deliver the slaves to A ; and the bill was filed to recover them. F. was the only party defendant to the bill, and he demurred for want of parties; the court below overruled the demurrer, and the high court affirmed the judgment.
    A decree having been rendered in the court below upon a pro confesso taken on the overruling the demurrer, directing the defendant to deliver up the slaves to the complainant, the defendant, on appeal to the high court, sought to have a decision as to his claim in right of his wife, and also his claim to a proportion of the profits of the slaves until the period of division; it was held, that those points not having been raised by answer or cross-bill in the court below, could not be adjudicated by the high court; but that the defendant was not precluded from asserting otherwise any rights he might have to the profits of the slaves.
    On appeal from the decree of the vice-chancery court at Car-rollton ; Hon. Henry Dickinson, vice-chancellor.
    Seth Applenhite stated in his bill that, on the 16th of June, 1831, John Applenhite executed a deed of gift, by which, in consideration of his love and affection for his daughters, Mary, wife of Eli Ferguson, and Martha, wife of Asa Lee, he gave their children the slaves Hester and her child Mike and their future increase; his daughters ta have the benefit arising from the said negroes until their youngest children arrived of age, then to he equally divided among the children of his daughters, the property to be in the care and management of complainant who was the donor’s son, until the object of the deed should be accomplished. The deed was exhibited with the bill.
    John Applenhite delivered the slaves to complainant, and the latter delivered them to the daughters who were married at the time; by an agreement with the sisters, Mary took the slaves into possession, and kept them until February, 1845, when she died, leaving four infant children; Martha Lee was living, with minor children. The slave, Hester, had five or six children.
    That Eli Ferguson had these slaves in his possession ever since the death of his wife, and would remove them from the state unless prevented. The bill prayed for injunction; that Ferguson might be compelled to give security to have the slaves forthcoming, and that possession might be decreed to complainant.
    Ferguson demurred to the bill, because the children of the two sisters were not made parties. At the December term, 1846, the court overruled the demurrer; and, at the June term, 1847, the bill was taken for confessed, and the court decreed that Ferguson should deliver the slaves to complainant, and, in default thereof, on his being served with a copy of the decree, the sheriff should seize and deliver them to Applenhite.
    Ferguson appealed from this decree.
    Sheppard, for appellant.
    1. The deed gives a joint estate in the negroes to the children of Martha Lee and Mary Ferguson, not to be divided until the youngest is of full age, and until that time it is given to the trustee for the benefit of Martha Lee and Mary Ferguson. These persons should have been made parties. The bill in this respect is defective, and the objection for this cause should have been allowed. Story’s Eq. PL 236, § 207.
    2. The marital rights of the defendant are not excluded by the language of the deed. The expression “ for the benefit of my daughters,” is not sufficient to create a separate estate. See 2 Story’s Eq.; Grand Gulf Bank v. Barnes et al, 2 S. & M. 185.
    
      3. The bill shows, that there was a division of the negroes between the daughters, Martha Lee and Mary Ferguson, by which the latter obtained the slave Hester and her increase.
    It is apparent, then, that the court erred in the final decree, in directing the defendant to give up this property. Not giving any directions to secure to the defendant the profits of the estate, or allowing him to give security, and retain the possession.
    Whitmore, for appellee.
    1. The only object of the bill, was, to enable the complainant to discharge his trust duties, by regaining the possession of the slaves in controversy, which .the defendant had threatened to remove, and which, by the deed of John Applenhite, had been committed to his care, for certain specific purposes. It was not necessary that the beneficiaries should have been made parties.
    2. If Ferguson, by virtue of the deed of gift, was entitled to any interest in the negroes in controversy, in right of his wife, it determined with her death. At best, neither he nor his wife had any right whatever to the negroes, and his wife was vested only with an interest in the proceeds of their hire or labor, subject to the control of the complainant; — when she died, the marital rights of her husband, if he had any, ceased also, and a retention by him of the negroes, after this event, was illegal.
   Mr. Justice Thachee

delivered the opinion of the court.

Seth Applenhite filed his bill in the district chancery court, in which he alleged, that John Applenhite executed a deed of gift to the children of his two daughters, Mary, married to Eli Ferguson, the defendant in the bill, and Martha, married to Asa Lee; that the gift consisted of a slave (Hester) and her son, with her future increase, to be for the benefit of his daughters, until their youngest children arrived at age, and then to be equally divided among all the children; that the deed confided the slaves to the care and management of the complainant, the son of the donor; that the complainant, at the time of the execution of the deed, placed the slaves ill the care of said Mary and Martha, and, by an agreement between them, Mary took possession of the slave Hester; that Mary is since deceased, leaving four minor children, and Martha still living, with minor children; and that the defendant, Ferguson, has now possession of the slave Hester, with a numerous increase, whom he refuses to surrender to the complainant. The prayer of the bill is for the recovery of the possession of the slaves from Eli Ferguson.

The defendant filed a demurrer to the bill, stating, for cause, that the children of Mary and Martha were not made parties; which demurrer the vice-chancellor disallowed.

The bill was filed, to recover the possession of the slaves. The deed of gift gives to complainant, as trustee, the right of possession. It was not necessary to bring before the court, the children, who, although interested under the trust, were not concerned in the question of the possession. They were not interested in the subject-matter and object of this particular suit. Sto. Eq. Pl. 89, sec. 766.

As to the questions raised in regard to the rights of the defendant, as husband of Mary, through his wife derived, and his claim to a proportion of the profits of the slave, until the maturity of the time of division, it is sufficient to answer, that, in the present aspect of this suit, its limited scope, and without those points having been raised, they were not there in issue, and could not be adjudicated. The bill, as before remarked, was for a particular object; there was no answer or cross-bill, but a judgment pro confesso. Nothing in this decree precludes the vindication of any rights that may appertain to the defendant, in regard to the profits of the slaves.

Decree affirmed.  