
    George Jones, vs. John Randel, Jr, and Letitia his wife, Walter Williamson and Mary Matilda his wife, and Sarah Ann Erwin.
    
      New Castle,
    
    
      Feb. T. 1865.
    A trustee of a fund in which his wife, with others, was interested, having failed to pay over money collected by him on account of the fund— held, that the wife’s share of other money, received by a succeeding trustee on account of the trust fund, was not liable for the unpaid shares of the other eestuis que trust in the money collected by her husband.
    In such case, the husband’s failure to pay over the money collected by him cannot be taken to be a reduelio ad possessionem of the wife’s share of trust funds then uncollected.
    The wife’s chose in action, not reduced into the husband’s possession, cannot be taken for the payment of his debt, at law or in equity.
    Property of the wife cannot, in equity, be taken for payment of the husband’s debt, without subjecting it to her equity, which, under the circumstances of this case, was sufficient to protect the whole fund.
    Bill oe Interpleader.—Sarah Dawson, by her will made in 1822, bequeathed the residue of her estate, consisting of certain lands, stocks and other property to her executor, in trust for sundry legatees for life, and after the expiration of the life estates, then to be divided equally between her three nieces, two of them being the wives respectively of John Eandel, Jr. and Walter Williamson, and the other a widow, Sarah Ann Erwin. John Eandel Jr, after an intervening executorship, became the administrator c. t. a., and the trustee of the property; but in 1855 he was removed from the trusteeship,and the complainant appointed in his place. On the settlement of Randel’s administration accounts he was found indebted to the trust estate. to the amount of $1746.64, which was never applied to the objects of the trust. The life estates having expired; the fund became payable in equal shares to Mrs. Randel, Mrs. Williamson and Mrs. Erwin. The complainant, the succeeding trustee, has now in hand $4800 of the trust fund, with some accrued dividends, divisible in like manner.
    Randel’s administration bond is barred by the statute of limitations,and he is insolvent. Under these circumstances, Mrs. Williamson and Mrs. Erwin claim that in the distribution of the fund in the complainant’s hands,Mrs. Randel shall be charged with the sum of $1746.64, received by her husband and not paid over, insisting that' Randel’s failure to pay was equivalent to an application of the money in his hands towards payment of so much of his wife’s share of the whole trust fund. Mrs. Randel claims her full share of the fund now to be distributed, contending that Randel’s liability as trustee was for his own debt, which might have been recovered by timely proceedings on his bond, and that her portion of the trust fund ought not to be liable for it.
    The cause came before the Chancellor on a bill of inter-pleader filed by the complainant, and upon answer of the defendants, setting up their respective claims as above stated, and was heard at the Eeb. T. 1865.
    
      J. C. Patterson, for the complainant, and also representing Mrs. Williamson and Mrs. Erwin.
    
      G. B. Rodney, for Mrs. Randel.
   Harrington, Chancellor.

The claim of Mrs. Williamson and Mrs. Erwin proceeds upon the ground that Randel,by retaining the money coming to his hands on account of the trust fund, must he taken to have applied it to his wife’s interest in the whole fund. But, it is to be considered that at the time Rundel received his part of the fund the proceeds afterward accounted for by the complainant, the succeeding trustee, were not due to the legatees, and Randel could not then so apply the fund in his hands, as is insisted. The case presented is, therefore, that of a creditor demanding a wife’s chose in action, not yet reduced into possession, in payment of her husband’s debt. This is not allowable, either at law or in equity.

Again, a court of equity would not allow a creditor of the husband to take the wife’s property, coming to her independently of the husband,in payment of his debt,without subjecting it to the wife’s equity; and her equity in such a case as this would protect the whole fund.

Let a decree be entered that the complainant divide the fund equally between the legatees, after deducting the costs.  