
    HOWARD vs. GILBERT.
    [bilí, nsr equity eor removal AND appointment oe trustees.]'
    1. Appointment of 'trustee by register in chancery. — Neither the act of 1843, (Clay’s Digest, 350, § 33,) nor the act of 1846, (Session Acts, 1845-6, p. 16,) authorized the appointment of a trustee by a register in chandery, under a petition which simply alleged that the trustee in Georgia, where the trust was created, was desirous of delivering the property to a trustee appointed here; consequently, such appointment is void for want of jurisdiction.
    
      % When cestuis que trust may come into equity, and what relief they may obtain. — Where a bill is filed by the beneficiaries under an express trust, praying fof the removal of the alleged trustee, the appointment of anothe/ trustee in his stead, an account, and general relief; and shows on hs face that the appointment of the alleged trustee is absolutely void, it may nevertheless be maintained against him, as if filed to recover the trust property wrongfully in his possession, and to have a trustee appointed to execute the trust.
    3. When husband may join with wife in bill; presumed existence of com* mon law elsewhere. — At common law, (which, in the absence of proof to the contrary, is presumed to exist in another State,( if the wife’s distributive share of a decedent’s estate was settled, by a decree in equity, on trustees for her and her children, without excluding the husband’s marital rights, he had such an interest in the trust property as would authorize him to join with his wife and children in a bill to recover it from one who wrongfully had possession of it, and to have a trustee appointed.
    Appeal from tbe Chancery Court of Russell.
    Heard before tbe Hon. James B. Claek.
    The bill in tbis case was filed, on tbe lltb June, 1859, by Benjamin Howard, Heron H. Howard, bis wife, and tbeir four children, against William E. Gilbert, Samuel Ray, and Emily P. Ray. Its object was to compel an account of certain trust property in said Gilbert’s bands as trustee, to have him removed from tbe trust, and another trustee (or receiver) appointed in bis stead; and it also prayed for an injunction, to prevent said Gilbert from rempving with tbe property beyond tbe limits of tbe State, and for' other and further relief as tbe equity of tbe case might require.
    William E. Gilbert and Mrs. Ray were tbe children of Mrs. Howard by a former husband. In 1838, one David J. Britt, who was a brother of Mrs. Howard, died in Georgia, (where all tbe parties then resided,) intestate, and leaving as bis heirs-at-law bis six brothers and sisters and bis father. A bib in equity was there filed for tbe distribution of bis estate, under which which a decree was rendered, on tbe verdict of a jury, on tbe 21st December, 1839, dividing tbe negroes and other property into seven equal portions, and allotting one portion to each of tbe parties in interest; tbe verdict directing Mrs. Howard’s portion to be allotted “ to Thomas Livingston and Hugh Watts, (selected by tbe parties,) as trustees for tbe use of Heron H. Howard and her children that she now has, or may hereafter have.” Watts refused to act as trustee, but Livingston accepted tbe trust, received tbe trust property into Ms possession, and continued to manage and control it, until some time in February, 1848, when be transferred it to said William E. Gilbert, who bad been appointed trustee in bis stead by tbe register in chancery at Crawford, in Russell county, Alabama.
    Tbe order appointing Gilbert, and tbe petition asking bis appointment, are nowhere set out in tbe record, though tbe minute of tbe testimony offered by the complainants specifies a copy of these proceedings as having been read on the hearing. The only allegation of the bill, in reference to the appointment of Gilbert, is, that he filed his petition before the register in chancery, on the 3d February, 1848, alleging “ that Thomas Livingston, of Muscogee county, Georgia, had possession of such trust property, and was desirous of delivering it to any person appointed trustee under such petition,” and praying “the appointment of a trustee to' have and to hold said property, and to remove the same within the State of Alabama”; and that said Gilbert was appointed trustee by the register in chancery, under said petition, on the 7th February, 1848. The bill alleged, that Gilbert had been guilty of various acts of misconduct in his management of the trust property, and was about ta remove with the property beyond the limits of the State. The prayer of the bill was, “that an injunction issue, commanding said Gilbert to refrain from removing himself or property out of the State, until the further order of this court, and commanding the proper officer to take said Gilbert into custody until he shall give bond, with sufficient sureties, not to remove his person or property out of the State until the further order of this court; and that the said Gilbert account fully and fairly concerning the said trust property; and that the said Gilbert be removed from said trusteeship; and that a receiver be appointed”; and for other and further relief, according to the equity of the complainants’ case.
    Bay and wife, who were made defendants on an allegation that they refused to join as complainants in the bill, filed an answer, disclaiming all interest. Gilbert also filed an answer, denying all the charges of misconduct on his part as trustee, but admitting all the other allegations of the bill. On final hearing, on pleadings and proof, the chancellor dismissed the bill, on the ground that the evidence failed to establish any misconduct on the part of Gilbert as trustee; and his decree is now assigned as error.
    Geo. D. HoopeR, for appellants.
    Goldthwaite, Bice & Semple, contra.
    
   A. J. WALKER., C. J.

William E. Gilbert, tbe defendant, was appointed trustee of tbe specified trust, in 1848, by tbe register in chancery for Russell county. Tbe trust originated in tbe State of Georgia ; and there Was, at the ^ime of tbe register’s appointment, an acting and surviving trustee in Georgia, appointed by a court in that State. Tbe petition by Wilham E. Gilbert, for bis appointment, is placed on tbe ground, that tbe property of tbe trust was in tbe possession of tbe trustee in Georgia, and that such trustee was desirous of delivering it to any person appointed under that petition. These facts are alleged in tbe bill, and admitted by Gilbert, tbe only defendant who has any interest, and does not disclaim all interest in tbe suit. They must, therefore, be treated as true.

In 1848, there were only two acts authorizing a register in chancery to appoint a trustee. Those were tbe act of 1843 (Clay’s Digest, 350, § 33), and tbe act of 1848 (Pamphlet Acts, p. 16). Tbe former authorized tbe register to appoint, in the event of tbe death of a trustee. Tbe latter extends tbe authority, and includes cases where tbe trustee dies, resigns, fails, or refuses to act, or removes beyond tbe Emits of tbe State. Neither of tbe contingencies presented in these two statutes bad occurred when tbe register in chancery made tbe appointment. Tbe register, in appointing a trustee, constitutes a tribunal of special and limited jurisdiction conferred by statute; and exercising tbe authority to appoint in any other than tbe specified cases, his decree is void. — Gunn v. Howell, 27 Ala. 663. Tbe order appointing Gilbert trustee is simply void.

Tbe defendant Gilbert stands, therefore, in tbe position of one having without legal authority tbe property of tbe trust in bis possession; and tbe bill may be regarded as one filed by a part of tbe cestuis que trust, to recover from one wrongfully bolding tbe trust property, and to obtain tbe appointment of a trustee to execute tbe trust. In this point of view, tbe equity of tbe bill is sustained, and tbe chancellor should not . have dismissed it.

Tbe decree of tbe Georgia court, as it is represented in tbe bill, did not vest a separate estate in Mrs. Howard; and ber husband would certainly be entitled to join with her in a suit to protect her interest in the trust property. The answer admits the correctness of "the bill'in this particular. The common law must be presumed to prevail in Georgia; and under it, the husband certainly had an inter* est, such as to justify the joining him as a complainant.

Decree reversed, and cause remanded.  