ELIZABETH WILSON vs. EDWARD WILSON.
The husband is a necessary party to a bill filed by a wife, to recover slaves, alleged by her to have been conveyed to a trustee for her separate use.
Cause removed from the Court of Equity of Yancey County, at the Spring Term 1849.
On the 15th of September 1S42, Thomas Shepherd conveyed to Edward Wilson three slaves “in trust for Elizabeth Wilson, the mother of the said Edward” and also the sister of the said Thomas, and the wife of George Wilson, The bill was filed in February 1843, by Elizabeth Wil-, son, against Edward Wilson and George A. Greenwood and Joseph Wilson. It states, that the plaintiff's husband, George Wilson, had abandoned her several years before and was then living apart from her and in a different County; and that, with a view to provide a comfortable support for her, the slaves were conveyed by her brother, Thomas, to her son, Edward, in trust for her, and that Edward accepted the conveyance and the slaves upon-that trust, as expressed in the de, d. The bill then charges, that Edward, the trustee, refused to let the plaintiff enjoy the slaves, and had, improperly and without consideration, conveyed some of them to the two other defendants-,, and kept one for his own use. The prayer is, that the-trust may be declared tobe to the separate use of the plaintiff, and that all the slaves may be decreed to be convey • cd to some fit person upon that trust, and that the defendants may respectively account to the plaintiff for the, profits.
*237The answers of the several defendants set up contracts with the plaintiff and her husband, under which they respectively claim the slaves as their own, discharged of any trust; and the parties proceeded to proofs upon the matters in issue.
N. W. Wood fin for the plaintiff.
Avery, for the defendants.
Ruffin, C. J.
It is not necessary to make any observation, as to the nature of the trust, created by the bill of sale, nor upon any other part of the merits, alleged or established in the pleadings and proofs, as there is a radical defect in constituting the cause, which is fatal to the bill. It is, that the husband of the plaintiff is not a party to the suit. It is perfectly settled, that a married woman cannot, by herself, institute a suit against any person. Where her interest is not separate from or adverse to the marital rights of the husband, he is a necessary parky, with her. She has not capacity to institute and carry oía a suit for herself, in any case. And it is not allowed to a'ny third person, officiously to assume the office of suing for a married woman, which, properly and legally, belongs to the husband. When, indeed, the husband and wife hate adverse claims, she is, from necessity, allowed to litigate the right with him. But, even then, she cannot, for want of capacity to conduct it, institute a suit for herself, bbt it must be done for her by some fit and responsible peí Son, as her next friend. Mit. Plead. 28. Indeed, in the present case, it is^f plain, that the interest of the husband is directly involved in the question, whether the trust can be construed to be for the separate use of the wife, or is only a general trust for her, and, so, subject to his disposition. For thai\ reason he - would be an indispensable party, in order to protect his interest, and also to protect the defendants from an ac*238countability to him hereafter. But, upon the general ground, before mentioned, the husband must be a party, either with his wife or as a defendant.
Per Curiam.
Bill dismissed with costs, to be paid by the surety in the prosecution bond.