#### JAMES O. HALE AND WIFE vs. SAMUEL C. GAUSE.

Where a husband intends by a bill in equity to impeach a marriage agreement made between him and his wife, before marriage, she must be a party defendant to the bill, and not be joined with him as a plaintiff

This cause was removed on affidavit to the Supreme Court, from the Court of Equity of Brunswick County, at the Fall Term, 1843.

The bill states, that the plaintiff, James O. Hale, married the other plaintiff, Ann O. Hale, who was a sister of the de-' fendant, in the year 1832 — that before the marriage and in consideration of the intended marriage, articles under seal were executed by the plaintiffs, in which they agreed to convey to the defendant, as trustee, all the real estate and the slaves, which belonged to the then intended wife, to be held by him in trust for the wife for life, remainder to the heirs of the body of the wife by the said husband to be begotten, remainder to the wife and her heirs and assigns forever. That this marriage settlement was also signed, sealed and executed by the defendant — and a copy of the same is appended to and made a part of the bill. The bill then alleges, that the said deed of covenant was obtained from the said plaintiffs by the artful contrivance and fraudulent management of the defendant and his mother. The prayer of the bill, in this respect, is, that the said instrument be decreed to be delivered up, cancelled and declared void. And *115in case that cannot be effected, the bill proceeds to state, that the defendant, as trustee, has mismanaged the trust fund by selling one of the slaves mentioned in the said deed, and that he has appropriated the money received from the sale to his own use. The bill further states, that the defendant is an unfit person to be a.trustee, on account of his mental infirmities, and also on account of his misconduct in the management of the trust fund. The bill then prays, that the defendant may be decreed ,to account for the price of the slave so sold ; and that he be removed from the office of trustee under the said marriage settlement, and some fit and proper person be by the court appointed .trustee.

The defendant in his answer admits .the execution, by himself and the plaintiffs, of the marriage articles, as stated .in the bill: but he denies that the said deed of settlement was obtained by any fraudulent contrivance of himself or .his mother. He alleges that the said instrument was well understood by the plaintiffs, when they executed the same, and that they intended and did execute the same, for the puposes therein mentioned. The defendant then avers, that the slave sold by him had belonged to him; and, at the request of his mother, he consented that she might be inserted in the said marriage settlement as being the property of his sister, but that he was to receive one hundred and fifty dollars for her. He admits that he has sold her to a man in South Carolina for $334. He states that he demanded of both the plaintiffs the $150; but that they refused to pay him, and requested him, the defendant, to keep her as his own property, as they were displeased with her. The defendant further insists, that, if he should be decreed to account for the said slave, he ought to be allowed in the account the said sum of one hundred and fifty dollars and interest. He denies, that, as trustee, he has mismanaged the trust fund, or that he has .any design to mismanage it, or that he is mentally or morally incapacitated to' act as trustee.

The answer was replied to, depositions were taken, and the cause set for hearing.

*116 gtrnge for the plaintiffs.

No counsel in this court for the defendants.

Daniel, J.

First; as to the allegation in the bill, that the marriage articles were obtained by fraud; there is no evidence in the cause to sustain it. And if there was such evidence, the court could not look at it, in the manner this bill is framed. If the husband wished to have the aforesaid allegation enquired into, his wife and children, who have an adverse interest, should have been made defendants. As the bill is now framed, we are impelled to see and know, that the allegation is only made by the husband, and the wife has no power to gainsay or contradict it, if it were false.

Secondly ; the defendant admits, that the slave Sally was included in the marriage articles as one of the slaves then belonging to his sister. He admits also, that he is the trustee in the said settlement, and executed the same by signing and sealing it. He also admits that he has sold the slave Sally to a man residing out of the State. This conduct on his part, was a breach of trust; and he must be decreed to account for the price of the said slave. As to the $150 credit which he demands, he may make what proof he, is able before the master: he has as yet filed no proofs in the cause tending that way. As to the allegation in the bill, that the defendant is an unfit person to be a trustee under the said marriage settlement, there are depositions filed in the cause on that question. It must, therefore, be referred to the Master, to enquire and report whether the defendant is an unfit person to be confined as trustee, either from his former mismanagement, or from his mental incapacity. And if he is found unfit, the Master will report a proper trustee.

Per Curiam, Decreed accordingly.