
    Ann Phælon and Ann F. Brisbane v. G. Perman Executor or Dr. J. G. Houseal, and Thomas Barksdale.
    The husband is not liable for a debt of his wife’s, not recovered before her death, though he received an estate by her. The marital rights of a husband cannot attach on the property of a deceased wife, where there are other next of kin, until partition is made. A cestui que trust has no lien on the trusteed estate for a breach of trust.
    Major Edward Phadon died in 1810, having made and executed a very eccentric will, under which, however, his widow and her subsequent husband, Dr. Houseal, claimed the whole of his property in her right. Major Phajlon left no children, nor were there any persons then known or claiming as next of kin. The widow, therefore, took possession of and remained in the enjoyment of his whole property until her marriage with Dr. Houseal in 1815, who then took the possession and management of it. She died in 1816, and Dr. Elouseal retained the possession and use, claiming in virtue of his marital rights, as the fortune of his wife, until 1821, when the complainants, who were inhabitants of Nova Scotia, set up a claim to one half of this property, as the next of kin to Major Phielon, and filed their bill, alleging that he died intestate, and praying an account against Dr. Houseal as executor in his own wrong, and asking for a partition.
    In opposition to this claim Dr. Houseal set up the will of Major Phielon, as bequeathing all his property to his wife, which he claimed in virtue of his marriage, and denied the relationship of the complainants.
    On the trial of the cause the relationship was fully established, and by a decree of a late court of appeals, pronounced in March, 1823, it was adjudged, (Chancellors DeSaussure and James dissenting) that nothing passed under the will except a few articles of property specifically enumerated and of little value, and consequently that he died intestate as to the bulk of his *property, which was then supposed to consist principally of negroes, and Dr. Houseal was decreed to account for their hire from the time they came into his possession on his marriage in 1815, and partition was also ordered.
    
      Dr. Houseal died shortly after the promulgation of this decree and before it was carried into execution ; and this was a bill of revivor against his executor George Perman ; and it was stated by way of supplement, that subsequently to the former decree, it had been discovered, that after the intermarriage of Dr. Houseal with the widow of Major Phoclon, and before her death, a sum of money, amounting to 83,200 or 3,300, which had belonged to Major Phtelon, had been discovered and delivered to Dr. Plouseal. and the fact was satisfactorily established; so that the undevised estate of Major Phselon consisted of the negroes of which he was possessed in his own right, with some other articles of property which were enumerated in the decree of the chancellor, and of this amount of money.
    To this bill Thomas Barksdale was made a party. He claimed as the next of kin to Mrs. Houseal (late Mrs Phselon) and prayed for a partition of the estate to which she was entitled, as her distributive share of the estate of Major Phffilon; and founded his claim on the circumstances that no partition of that estate was made in the lifetime of Mrs. Houseal, and therefore he contended that the marital rights of Dr. Plouseal did not attach, and that he only was entitled as a distri-butee under the act of 1791.
    Chancellor DeSaussure’s decree, from which this appeal was made, following the decree of the late court of appeals, limited the liability of the defendant Perman as executor of Houseal, to account for the hire of the negroes from the time of his getting possession of them on his marriage in 181.5, so far as related to the complainants, the neices. But the chancellor further directed* an account to be taken with respect to the defendant Barksdale’s claim to the hire of the negroes during the time that Mrs. Pluclon had them in possession, from the death of Major Phselon in 1810 to her marriage in 1815, and subjected the dividend of her estate, to which the defendant Barksdale was entitled exclusively, to any liabilities that might arise against her on account of her transactions during that period; and in conclusion the decree placed the claims of the complainants and Barks-dale on the same footing with the general creditors of the estate of Dr. Plouseal, which it was said was insolvent, regarding this property as his general estate.
    All the parties appealed.
    The grounds on the part of the complainants were,
    First. That the decree was erroneous so far as it goes to charge the dividend of Barksdale exclusively with the hire of the negroes from 1810 to 1815, which is deemed insufficient, and to exempt the dividend of Dr. Houseal in the hands of the executor.
    Second. That it was erroneous so far as it puts the complainants on the footing of creditors of the estate of Plouseal, and regards the property derived from the estate of Major Phoslon as belonging to his estate.
    The defendant Perman appealed on the grounds,
    First. Because the money received by Dr. and Mrs. Houseal was the debt of the wife, for which he was not liable after her death, and the decree ought not to be opened to carry his liability further.
    Second. That Dr. Plouseal had possession of the personal estate of llis wife, and was not accountable to her representatives for anything.
    
      Barksdale’s grounds of objections were, that negro *hire should not have been directed to have been paid out of his share alone of Mrs. Houseal’s estate. That he should have been allowed a preference over the creditors of Houseal. That he should have been allowed one-fourth part of the money found among Phailon’s effects: and as Dr. Houseal had applied to his own use all that fund, it should be considered as a payment pro tanto of his moity of his wife’s estate. That at least the complainants’ claim to this fund should be made alone on Dr. Houseal’s estate.
    Clarke, for the complainants.
    As to the first of his grounds, the question of law is, whether Dr. Houseal took the interest of his wife in her former husband’s (Phatlon’s) estate as a possession or as a chose in action. 3 Desaus. Rep. 138, note. 3 Desaus. Rep. 135. Exparte Elms, 3 Desaus. Rep. 155. There was no distribution or division of the property, and under the well settled rule in such cases, it was clear that he was only entitled as one of her representatives. His representatives are therefore bound to contribute to the debts due by the wife in equal proportions with the other distributees. On the death of the wife her dioses in action pass her representatives, and are distributable as the property of any other persons would be on their death. They do not vest in the husband ex jure muriti, unless reduced to possession in the lifetime of the wife. Reeve’s Dom. Rel. 17. 67, 72.
    As to the second ground. Dr. Houseal had appropriated a considerable proportion of the estate to his own use (the cash found and some negroes sold), which was not known when the former case was tried. In equity, therefore, that amount ought to be deducted from the amount to which he was entitled, and the court would either order a partition de novo, or set up this demand as a charge upon the property allotted to him.
    *Bailey, in behalf of Barksdale.
    The only question of importance to Barksdale is, as to the interest which Dr. Houseal took in the claim of his wife to the estate of her former husband ; for on that question depends the amount he is entitled to. On this point Ex parte Elms is conclusive. It was said that this question was concluded by the partition. Barksdale was not then a party, and, therefore, his rights were not compromitted by that decree. With respect to the negroes, there is no doubt Mrs. Pluelon was entitled to a moiety, as one of the distributees of her husband, and this not havirg been reduced to possession survived to Iter next of kin, and as such he B, was entitled to one-half. The money found was in the same situation. That, like the other personal estate, remained in common until partition. The disposition of the money found by Dr. Houseal must be regarded as a payment of his share, and ought to be deducted from it; or if not, that it should be a specific charge on that part of the estate allotted to him. One executor has the right to retain on account of a legacy to his co-executor for a devastavit committed by him. Sims v. Doughty, 5 Ves. 243.
    Petigru, attorney' general, for the executor.
    First. Was Dr. Houseal liable to the next of kin of his wife, for anything ?
    Secondly. Are the complainants, or Barksdale either, entitled to an account of the money found?
    
      Thirdly. Have the complainants a right to any account against any one for the hire of the negroes, between 1810 and 1815? Do the claims of the complainants and Barksdale give a lien on Dr. Houseal’s share ?
    All the cases quoted, and all those to be found in the books proceed on the ground, that the funds were held in trust, professedly or jointly with others. But in this *case the wife was in possession, and claimed the whole in her own right, and she had the sanction of two chancellors to three that she was so entitled, and under these circumstances Dr. Houseal married her, believing that she was so entitled, and claimed it as his own; and how can he be regarded as holding it as a trustee ? We apply these remarks to Barksdale’s claim to a distributive share of Mrs. Houseal’s estate. It is immaterial to us how they held. If the complainants acquiesced in the claim of Dr. Houseal to the whole estate, it constituted a reduction, in effect, to possession of the whole, and B. never could have come in, and it is not to be readily perceived how that circumstance can change the rights of the parties. It does not follow that Barksdale was entitled because the complainants were, or that because Dr. Houseal was trustee to them, that he was so to Barksdale. Clinton v. Cholmonde-ley, I Jac. & Walk. 1. There is a manifest distinction between trusts created by act of the party and the operation of law. When by the 'act of the party it will extend to all legally entitled, but when by operation of law, only to those immediately interested. On this principle Mrs. Houseal stood in the relation of trustee to the next of kin to her husband Phselon, but not as to her own next of kin. This is conclusive as to the money found. Decouche v. Savetier, 3 Johns. Cha. Rep. 190.
    As to the second ground. The original decree was conclusive as to all the parties, and that determines that Phselon died intestate only as to the negroes. The claim to this fund arises out of a bill of revivor in nature of a bill of review, on account of after discovered evidence. It is admitted that a practice has existed of enlarging, abridging, and modifying the decrees of the courts of chancery, but it is malus usus,
    
    and ought to be abolished. But it does not appear that this item was excluded from the operation of the decree ; non constat, *tbat Phselon died intestate as to the fund. If it were true, that the complainants are entitled to an account of this fund, the question arises, whether it be a charge on the estate of the husband ? At law that is the rule. Cro. Car. 519. But it is different in equity. 2 Vern. 118.
    Fourthly. The decree was conclusive as to that matter. Dr. Hou-seal was treated throughout all the proceedings and the decree, as the representative of his wife, and by it he is exonorated from an account. Under circumstances, the court will not give an account of profits from the time the right accrued. Sometimes the statute of limitations is made the rule, and again it is only allowed from the time of filing the bill, — -the courts are governed by a sound discretion. 1 Mad. Cha. Dormer v. Fortescue, 3 Atk. 13(5. Green v. Biddle, 8 Wheaton, 1.
    Fifthly. The general rule clearly is, that if a trustee commit waste or devastavit, the cestui que use stands only in the relation of general creditor. With respect to the rents and hire, and money found, Dr. Houseal had committed a devastavit, and with respect to it, the persons entitled must stand in the relation of a creditor. And so with regard to negroes sold by Dr. Houseal.
    Clarke, explained.
    All that is asked is, that what has been disposed of by Dr. Houseal maybe charged to him as so much of his distributive share, and that the property undisposed of by him may be appropriated to pay the interest of Barksdale and the complainants.
    Petigru, in continuance.
    The estate of Dr. Houseal is insolvent and the rights of creditors have attached, and as to the complainants, they ought to stand on an equal footing. This species of lien ought not to be favored. The partition at the suit of the complainants put him *n possession ostensibly in his own right, and *they are not, therefore, to be preferred. It is admitted that if Barksdale be entitled to a distributive share, his claim ought to be preferred.
    Grimke, for the complainants, in reply.
    By the terms of the decree, the rights of Mrs. Phadon, under the will of her husband, were limited to the articles enumerated in the will, and cannot, by any terms of construction, be extended to the money found. The same consequences will follow if resort be now had to the will itself. The rule in equity clearly is, that an executor de son tort is regarded as a trustee, and persons interested may pursue the trust fund into whatever hands it may go. It was the duty of Dr. Houseal to have administered, and his not doing so cannot change the rights of the parties. It is no excuse, that he was ignorant as to the rights of others. He was bound to know them, and those claiming under him as creditors cannot be put on a better footing. The case of Dormer v. Fortescue does not apply to this case. There the party took possession, believing that tlie right was in him, and for that reason the account was limited on the principle of the statute of limitations. But here, both Dr. Houseal and his wife were bound to know the rights of the others. The complainants do not claim anything of the estate of Mrs. Houseal, and whether the possession of Dr. Houseal vested the title in him in virtue of his marriage is unimportant.
   Cbria, per

Johnson, J.

That part of the decree to which the first of the complainants’ objections apply, is not so explicit as to be distinctly understood and in remarking on it I wish to be understood as stating what is the law of the case, rather than as correcting any supposed error in the decree. The former court of appeals by their decree have limited the liability of Dr. *Houseal to account for the hire of the negroes to the time of his marriage in 1815, and as between himself and the complainants that decree is conclusive. It is true that the court founds its opinion on the ground, that the hire accruing anterior to that time was exclusively the debt of the wife, for which the husband was not liable after her death; but I incline to think, that if even she herself, or her legal representatives had been a party, it might well be questioned whether she was bound under the circumstances, to render any account of the hire anterior to notice of the complainants claim, or, at any rate, that the statute of limitations would have operated as a bar to all that had accrued more than four years before the filing of the bill. It will be recollected, that it was unknown to the widow of Major Phcelon, (so far as appears to the court) that there was any person entitled to take a distributive share of the estate. She took possession under a will, which, in the opinion of a very respectable minority of the court, entitled her to the whole. Her subsequent husband Dr. Houseal, acted under the same impression, and used the property as his own ; and after a lapse of ten years he is surprised into an account by an unexpected claim. Now, I would put it to the conscience of any intelligent man, and ask whether it would not be ruinous to ninety-nine slave-holders out of a hundred employing and using them as their own, if they were bound to account for their hire at the rate established by the long standing rule of the court. This vierv of the court might, I think, have been maintained on principle and authority. Dormer v. Fortescue, 3 Atk. 130. Green v. Biddle, 8 Wheaton 1. But it is sufficient that the whole question is concluded by the former decree of the court of appeals. The defendant Perman was not, as executor to Houseal, liable to account for hire further back than 1815. There is no one now before* the court representing Mrs. Phselon but himself as executor of Houseal, who for the purposes of this case must be regarded as executor in his own wrong, both of the estate of Major Phselon and his own wife; Barksdale having, as will be noticed hereafter, no interest in this matter.

There can be, it appers to me, no difficulty with respect to the complainants’ second objection. Under the act of 1791, the widow of Major Phselon was entitled to one half of the property of which he died intestate, to one-half of which on her death her husband became entitled, as a distributee, and her next of kin to the other half. She and her subsequent husband had the possession and use of the property ; and the latter has disposed of a part, including the money which was discovered; and on the principles of the decree, his estate is bound to account for negro hire. Now it follows as a necessary consequence, that in the partition of this estate, so much as has been appropriated to the use of either exclusively, whether it consisted of money, of the hire of negroes, or of property sold and converted into cash, must be charged to them as so much received on account of their interest in the estate; and the specific property or its proceeds in the hands of the executor, must be so divided, that the complainants may recover an amount of this fund equal to that to which the widow is entitled, including the amount converted to their own use; or, in other words, the complainants must be first paid the amount received and disposed of by Dr. Houseal, or his wife, and then the balance, if anjr must be divided between them. If the specific property or the proceeds in hand are insufficient for this purpose, of course the complainants would, for this balance, stand in relation of a general creditor to his estate.

As to the grounds of the defendant Perman :

There is certainly nothing in his first ground, if it is *correctly understood. The money found and received by Dr. Houseal is as much a part of the estate of Major Phaelon as any other property of which he died possessed, and the rights of the complainants and the liability of the defendant in relation to it, stand precisely on the same footing.

On the second ground the court concur with the chancellor for the reasons given. Mrs. Houseal was entitled to the estate of her husband, Major Phfelon, jointly with the complainants; no partition or severance had been made of their interest during her life. The marital rights, therefore, could not attach except so far as to entitle him to a distribution with her next kin under the act of 1791. The case ex parte Elms has always been regarded as decisive of this question. The defendant Barksdale was, therefore, entitled to one moiety of the interest which she had in the estate of her husband Major Phselon at the time of her death. Most of the objections which have been raised on the part of the defendant Barksdale have been disposed of by the principles before laid down. Under the existing state of things no account can be taken of the hire of negroes prior to 1815, consequently he can have no interest in it, nor can his dividend of the estate of Mrs. Houseal be charged with the payment of it, and his claim must stand in relation to creditors of Dr. Houseal precisely on the same footing as that of the complainants. If, after taking out the distributive share of the complainants, anything of the specific property or its proceeds remains in the hands of the defendant Perman, as executor of Dr. Houseal, he will, with respect to this fund, be entitled to a precedence over the general creditors; if not, he must stand in the same situation with them. All the other objections of this defendant relate to the money found. He contends that this should be accounted for as part of the estate of Mrs. Pbtelon, and that he is entitled to a distribution *of it. That, at any rate, it should be set down as a payment pro tanto of the distributive share of Dr. Houseal, in the estate of his wife, and that the complainants, so far as regards this fund, should stand in the relation of a general creditor of the estate of Dr. Houseal.

The whole of these objections may be embraced in a single view.

This defendant claims as next of kin to Mrs. Houseal, an equal dividend of the property to which she was entitled at the time of her death, with her husband Dr. Houseal, and which did not vest in him by virtue of the marriage. The value of the property so claimed to be divided must be ascertained, and how much she was entitled to at that time, in the estate of her deceased husband, Major Phtelon ; for the claim is confined to that fund alone. During her life she had a right to dispose of her interest in that estate as she pleased, and having ascertained to how much she was entitled at the death of Major Phaelon, it will be perceived that the inquiry would necessarily arise as to the quantity which had been disposed of by herself or her husband, for, in this way alone can the precise, amount to -which she was entitled at her death be ascertained. Among other things the cash received is wanting, and had been disposed of by the husband, and of necessity this defendant can have no interest in it. To conclude, the defendant Barksdale is entitled to distribution only of so much of the specific property of Major Phtelon, or the proceeds thereof in the hands of defendant Perman as remained at the death of Mrs. Houseal, his widovv, after a partition made with the complainants on the principles above laid down. It is therefore ordered and decreed, that an account be taken before the commissioner, conformably to this modification of this decree of the circuit court.

Decree modified.  