
    John Boykin and Wife, v. Lewis Ciples and Wife, and F. A. Delesseline.
    A feme covert may sustain a suit for her separate estate, her husband being joined in the bill; in such case she will not be estopped by his deed, made in his individual capacity. [*203]
    Where no trustee has been appointed, the husband will be regarded as trustee of his wife’s separate estate; but on bill filed by husband and wife for such estate, the Court will appoint another trustee. [*203]
    Charleston. — May, 1834.
    This ease arises under the will of John Adamson, of Camden, dated 21st January, 1814. The testator left two daughters — Sarah, who intermarried with the defendant, Lewis Ciples, and Amelia, now deceased, who intermarried with the defendant, F. A. Delesseline; a granddaughter, the plaintiff, Charlotte A. Boykin, formerly Adamson, who intermarried with the plaintiff, John Boykin; and three grand-sons, John, Alexander and William Adamson. By two clauses in said will he bequeathed, viz : “ To each of my daughters, Sarah Ciples, wife of Lewis Ciples, and Amelia Adamson, and to my grand-daughter, Charlotte Adamson Boykin, wife of John Boykin, during their natural lives, alone to their sole and separate use and benefit, without being in any manner subject to the debts, contracts or forfeitures of their husbands, and to the heirs of their respective bodies, wrho may be living at the time of their respective deaths, I give and bequeath fifty shares in the Union Bank, and fifty shares in the Planters’ and Mechanics’ Bank of this State, making in the whole three hundred shares. In case either of my daughters or grand-daughter should die without leaving such heirs of her body, her share shall go to the other or others of them, subject to the -i same *terms and limitations as her or their other bank shares. In 1 case they should all die without leaving such heirs, the said bank share shall go to my grand-sons above named, subject to the same terms as the bank shares bequeathed to them. To my daughter Amelia, during her natural life, alone and to her sole and separate use, without being in any manner subject to the debts, contracts or forfeitures of her husband, and after her death to the heirs of her body who may be living at the time of her death, I give and bequeath the following negro slaves with their increase from this day, that is to say — Molly, Aty, Fanny, Pat and her six children, John, his wife and her two children, old Nance and her six children, Bob, Dublin, London, and his wife and her child, making in all twenty-six slaves, subject to the same limitations over on her death •without leaving such heirs, as are expressed respecting the bank stock hereinbefore bequeathed to her. ”
    After the date of the will, Amelia intermarried with Francis A. Delesseline. The testator died in May, 1816, and in January, 1811, the three husbands, Ciples, Boykin and Delesseline, with the consent and knowledge of their wives, executed mutual releases in the following manner :—
    South Carolina.
    Whereas John Adamson, by his last will and testament, made the following bequests to Sarah Ciples, wife of Lewis Ciples, Amelia Adam-son, who has since married Francis A. Delesseline, and Charlotte A. Boykin, wife of John Boykin, with such limitations over as in the said will are expressed: that is to say, to the said Sarah Ciples, thirty-two slaves, in the said will named to Amelia Delesseline, twenty-six slaves, and to Charlotte A. Boykin, twenty-six, in the said will named, and all the increase of the said slaves from the time of making the said will. And whereas it has been agreed by and between the said Lewis Ciples, F. A. Delesseline and John Boykin, to relinquish and secure to each other all the contingent interest which may enure to their respective wives and the heirs of their respective bodies, by such wives on the death of any of them, the said Sarah, Amelia, or Charlotte, without heirs of their respective bodies. Now know all men by these presents, that in consideration of the premises, and in consideration that the said Lewis Ciples has made to me a deed of the same import of these presents, and a further *considJ eration of one dollar to me, the said John Boykin, in hand paid by the said Lewis Ciples, the receipt whereof is hereby acknowledged, have granted, bargained, sold and delivered, and by these presents do grant, bargain, sell and deliver to the said Lewis Ciples, all the said thirty-two negroes and their increase, so bequeathed to the said Sarah Ciples, to have and to hold the said negro slaves and their increase to the said Lewis Ciples, his executors, administrators and assigns, for ever. And I do hereby bind myself, my heirs, executors and administrators, to warrant and for ever to defend the said negro slaves and their increase, to the said Lewis Ciples, his executors, administrators and assigns, against myself, my wife, and the heirs of the body of my wife, by me begotten, or any other person by, through or under me or them, claiming or to claim the same or any part of the said slaves or their increase, but not against the claims of any other person, or of any heirs of the body of the said Charlotte by any other husband begotten.
    (Signed) Jno. Botkin.
    Mrs. Delesseline died in July, 1832, without having had issue; and Mr. and Mrs. Boykin, in May, 1833, filed this bill against Ciples and wife, and Delesseline, to recover under the terms of the said will, their alleged proportion of the negroes bequeathed to Mrs. Delesseline.
    The defendants contended that the plaintiffs were not entitled to recover — that Mrs. Boykin could not maintain the suit, and that Mr. Boykin.’was^estopped by his deed of January, 1811.
    Johnston, Chancellor. The objection made to the manner in which Mrs. Boykin sues, if valid, comes too late. The slaves are expressly exempted from the contracts of the husbands. Of course the husbands’ deeds are invalid, as respects the wives. I shall not, however, interfere with the legal liabilities of these three husbands and executors, to make good the warranties of the three interchangeable deeds, whereby they assumed rights they did not possess, nor had any reason to suppose they possessed, and that for the purpose of frustrating the provisions of a will, of which two of them were executors appointed by the testator, and which the other was bound by his marriage to execute. Let each take his remedy against the other at law, if he chooses. But the deeds are ^declared inoperative, as regards the wives. It is further decreed r*ogg that Mrs. Boykin is entitled to a partition with Mrs. Ciples, of the *- slaves left at Mrs. Delesseline’s death — the share of each to be- subject to the limitations of Mrs Adamson’s will. Let a writ issue for the partition. If either wishes security for the forthcoming of the property to answer the limitations over, an application, when made, will be heard. Let Lewis Ciples, Mr. Boykin and Mr. Delesseline, each, pay his own costs.
    From this decree the defendants appealed on the grounds :—
    1. That Mrs. Boykin cannot, in her own name, maintain a suit for the recovery of these negroes.
    2. That Mr. Boykin is estopped by this deed.
    3. That when the separate estate of the wife has been conveyed or released by the husband, the husband and wife cannot maintain a suit for its recovery.
    
      King, for the appellants.
    
      Petigru, contra.
   Harper, J.

The only question necessary to be considered is, whether a married woman may sustain a suit for her separate property, her husband being joined in the bill. If she may, she certainly cannot be estopped by her husband’s deed, made in his individual capacity.

When property is settled to the separate use of a married woman, and no trustee is appointed, it is the known rule of the Court that the husband shall be made a trustee. Being such trustee, it should seem that he was a necessary party to a suit for the trust property, and being liable for costs, that any other prochein amy was unnecessary. It is true that it was said by Lord Hardwicke, Pawlet v. Delaval, 2 Ves. sen. 663, if a bill be brought by husband and wife for the wife’s property, it is the husband’s bill; but in that case, for aught that appears, the suit was for the benefit of the husband.

He explains in Griffith v. Hood, Ib. 453, that “ where there is any thing for the separate use of the wife, a bill ought to be brought by her pochein amy for her, otherwise it is her husband’s bill. However, there have been eases of such a bill by the husband and wife, and the Court has taken care of the wife, and ordered payment to some person for her. ”

*2041 *This is, I suppose, what we are bound to do, if the bill be -I sustained. A husband, from necessity, is construed the trustee of the wife, but he is not the proper trustee. In general, the office of a trustee is to protect the property against the husband.

The Chancellor’s decree is therefore affirmed, and it is ordered that it be referred to the Commissioner to report to the Court of Chancery at its next sitting, a proper person to be appointed the trustee of the plaintiff, Mrs. Boykin, and that upon such trustees being appointed, the property allotted to Mrs. Boykin under the writ of partition, be delivered to him to be held to the uses of John Adamson’s will.

Johnson, J., and O’Neall, J., concurred.  