By the Court.
Starnes J.
delivering the opinion.
[1.] Our first step in this case has been, to ascertain the ■character of the estate taken by the complainant, Mrs. Robert, under the will of her grandfather, with reference to the marital rights of the husband—that is to say, whether or not the interest vested in her is to be enjoyed as her separate estate; and this inquiry has not been unattended with difficulty, and has required careful ;and cautious consideration.
While endeavoring to determine the influence which the principles of the Common Law are to have in the consideration of this subject, we have recognized the correctness of the position, that we shouldlook to that Law as it stood before the 14th day of May, 1776; and so of those principles of Equity, which are regarded as forming part of the Common Law. We have also recognized the rule, with a proper qualification, that in the effort to determine what was the Common Law at that period, we should consult the decisions of Courts in England, previously made; and that such decisions are to be regarded as the [134]*134proper exponents of the Common Law, as it was adopted, by our Legislature. ,The qualification on which we insist, is this: These decisions are to be received as evidence of the Law, and not the Law itself; and hence, to bo conclusive of any question, they should be clear and well settled. A mere preponderance, or even a strong current of decisions upon a given point, at that period, is not. decisive, if, notwithstanding, in the opinion of the Court, the question was still lis sub judice. In such event, a Court in our State is free to adopt a different view, if it believes the Law was otherwise at that time.
[2.] An examination of the subject has satisfied us that, without doubt, the decisions in England, upon this point, previous to our Revolution, had, for the most part, gone upon the ■Common Law principle, that property given by deed or will, •directly, or to trustees, for the separate use of a feme sole june mariti, passed to her husband on her marriage at full age. And if we were satisfied that these decisions stood as the well established evidence of the Law, at that time, in cases of separate estate, we should feel it our duty, without pause, to follow their guidance. But we find that different views were then, .and previously, entertained by some Courts, and the question was, by no means, clearly and definitely settled.
We may-recur to as early a period as the reign of Charles II. and the time of Lord Chancellor Nottingham, and we will find the doctrine held, that a Court of Equity in England, in ■a case of separate estate, will decree protection as against the marital rights, although such estate had vested in the feme at .a time when she was sole. This period is, perhaps, a fit starting point for our examination, for it is known that, under Lord Nottingham’s administration of Chancery, that branch of Jurisprudence first assumed in England, the form and shape of .a regular and scientific system. Lord Campbell says of this Chancellor, that “ he had the sagacity to discover that Equity might be moulded into- a noble code,” and that “ he laid the foundation for being a great Equity lawyer, by a profound knowledge of the Common Law.” (3 Lives of Chancellors, 312.) Chancellor Kent says of him, that “ from his time, [135]*135Equity became a regular and cultivated science.” (1 Kent Com. 492) and Judge Story observes, that “he has been emphatically called the Father of Equity.” (1 Story’s Eq. Ju. 46.)
This great Judge, in the case of Doyly vs. Perfull, (1 Chan. Cas. 225,) decided that, “ if a term were assigned expressly upon trust for the separate use of a feme, the marital rights, in that case, should not prevail ”; and he followed np this decision by a similar opinion, in Sir Fdiuard Turner’s ease. ■ In that case, an annuity had been conveyed to trustees for the separate use of a lady, upon her marriage. The husband after-wards died, and she intermarried with Sir Edward Turner, who subsequently disposed of the annuity. The question was, as the second husband had not bound himself by any agreement, whether or not he could dispose of this annuity by virtue of his marital rights ? Lord Nottingham was of opinion, “ that as the annuity had been settled expressly for the lady’s personal use, the second husband was barred”. And he assigned as a reason, that unless this be the law, “ no man shall be able to provide for wife and children”. (1 Chan. C. 307.) It is true, that this decision afterwards (in 1681) was reversed by the House of Lords. According to the report, or rather memorandum, of that case, in (1 Vern. R. 7,) and what Lord Hardwick said of it, in Jewson vs. Moulson, (2 Atk. 421,) that reversal was placed upon the ground, that “the same rule of law must prevail in Equity, as in Law; that as the husband might dispose of the term, so he might of the trust, and that therefore, the term was well passed away, and the husband might dispose of it”.
Thus, this hereditary Court, at a time when its Judges, by Divine right, as a general rule, were very imperfectly educated in a knowledge of human rights—at a period, indeed, when few Judges in any Court, as we have seen, were educated in those rights which it was the peculiar province of a Court of Equity to administer, on these unsatisfactory grounds, overruled the judgment of that wise and learned Magistrate, who, had devoted a life to the study of these things.
[136]*136Subsequently, in the case of Hunt vs. Pitt (1 Vern. 18,) Lord Nottingham acquiesced in this decision; not that he thought it right, (for he said he “wondered at that resulition,’”' and somewhat touchingly complained that the effect of such a decision would be to render it “almost impossible for a man-to provide for a child, but that it shall be subject to the disposal of an extravagant husband,”) but because it was his duty; and as he said, “ there must not be one Equity above stairs in the House of Lords, and another below, in Chancery”.
I have dwelt somewhat upon this case of Sir Edward Turner, because the history of this question shows that this case influenced the case of Tuden vs. Samyne, (2 Vern. 207,) and these two gave direction and character to what had been held on this subject, in England, previous to our Revolution. Moulson vs. Jewson, (2 Atk. 421;) Tullett vs. Armstrong, (4 Myl. & C. 390. Lewin on Trusts, 79.)
Of these two cases, Lord Cottenham says, in Tullett vs. Armstrong, (4 Myl. & C. 394,) that they were inaccurately reported, and that this point was not argued. But I care not how this may be. If it appear from what is reported, that they proceeded on wrong principles, and we find that the question was in such a state, on the 14th of May, 1776, as will admit of our considering it open for adjudication, we are not to be controlled by these cases. That it was not put by them upon a settled and satisfactory footing, we think is evident, from the following considerations :
After these cases were decided, and before the period of our Revolution, the practice of settling' estates upon trustees for married women, to be protected against future husbands, seems to have continued, as appears from very old forms of conveyancing of this kind, appearing in Horseman’s Precedents & Wood’s Conveyancing. These are referred to, in Davies vs. Thorneycroft, (6 Sim. 420,) as showing “ that the practice of the profession, without any variation”), had proceeded on the idea, that “it was lawful to give property to the-separate use of a woman, married or unmarried ”'. And touching these, the Master of the-Rolls, Lord Langdale says, in Tullet vs. [137]*137Armstrong, when the case was before him, (1 Beav. 31,) that “ this doctrine appeared to him as the result of the authorities and of the constant practice of conveyancers, which great and eminent Judges have considered to bo no mean evidence of the law”.
The dicta and decisions of eminent Judges, pronounced presently after our Revolution, but so near to it as to be suggestive of what was the state of the law on this subject, at that time, encourage the idea that such estates would have been protected in Equity at that period.
In the case of Bealle vs. Dodd, (1 Durnf. & E. 193,) even the Court of King’s Bench, in 1786, recognized the principle that a gift or devise may be made to the separate use of a married woman, which shall be independent of the control of a future, as well as a present husband. By parity of reasoning, it sanctions the doctrine that such a conveyance may be 'made to a feme sole of full age, and protected against the marital rights incident to a subsequent coverture.
In the case of The Countess of Strathmore vs. Bows, (1 Ves. Jr. 22,) Lord Thurlow, in 1789, lends countenance to this doctrine. And even afterwards, in England, down to the decision in Tullett and Armstrong, the question was treated as one not finally settled. (Lewin on Tr.)
Thus it is, we are impressed with the belief that this ques-tion was not clearly and definitely settled in May, 1776, upon the basis of Sir Edward Turner’s case. But, on the contrary,, that there were, at that period, certain vital equitable principles of legal and binding force in England, because, inherently pertaining to the power of a Court of Chancery over the estates of married women, by virtue of which the universality of the Common Law might be restrained, and an estate, such as we have been considering, supported.
As early as the reign of James I. we have notices of the Court having entertained jurisdiction to secure property to the separate use of a married woman, that had been given to her to be so enjoyed. (Tothill, p. 158.) Shortly afterwards,. [138]*138in the reign of Charles I. this is said to have become quite common. (Tothill, 161. Car. 1.) We have seen to what extent this power of the Court had been, and, in the opinion of Lord Nottingham, might rightly be carried-in the reign of the second Charles.
Again : Long before- our Revolution, and as early as the reign of Charles I. the right of a Court of Equity, to restrain the Common Law rights- of the husband, so as to prevent him from recovering a legacy given to his wife, until he had made a competent provision for her, was acknowledged. (Tothill, 179. Car. 1.)
The right to- do all these things, proceeds, in our opinion, from precisely the same source, viz : the power of a Court of Equity, as representing the sovereign authority, over married women, and their estates. The separate estate of a married woman was thus, as it wore, the creature of a Court of Equity; and that Court had in this way, (in the language of Lord Cottenham,) acquired the right “ to model and qualify an interest in property, which it had itself created, without regard to those rules which the Law has established for regulating the enjoyment of property in other cases ”. Tullett vs. Armstrong (4 M. & C. 393.) And in this connection, he adds that “ when this Court first established the separate estate, it violated the laws of property, (that is, it restrained their universality,) as between husband and wife, but it was thought beneficial, and it prevailed”.
Upon this principle, which is, in our opinion, thus shown to have been in force in England- on the 14th of May, 1776, and consequently, adopted as the Law in our State, a Court of Equity, by its decree, may restrain the marital rights from attaching to an estate which has been settled for the separate use of a feme sole, upon her marrying at full age ; and may also restrain the Common Law rights of a second husband from attaching to property thus settled on a feme covert, where the terms of the instrument creating the estate, provide that this shall be done.
The exigencies of a refined civilization, among all enterpris[139]*139ing and commercial people, like ours, loudly call for such a rule; and we are pleased that we are enabled, rightly and properly, as we think, to place the decision of this .question upon a principle which will enable a parent, in our State, to make a provision far his daughter, which can be guarded against a husband’s extravagance or improvidence.
With this -view of the point made, we of course hold that Mrs. Robert, under those clauses of her grandfather’s will, which are italicized in the copy to this opinion annexed, and marked Nos. 1 and 3, took a separate estate in what was conveyed to her, to which the marital rights of the.complainant, Francis W. Robert have not attached.
[3.] We have next endeavored to.ascertain the quantity of the estate taken by Mrs. Robert, so far as the same is influenced by those terms of the will which it is insisted would create an estate tail by virtue of the Statute De domis, &c. were the bequest of real property.
If the tenor of these terms be such as would create an estate tail, for the pmposes of this investigation, we assume the correctness of the position, that the bequest of the interest or income of the property, has drawn after it the principal, and an absolute estate has vested in the first taker, Mrs. Robert.
Wo incline, however, to think that if by the terms of this will, a separate estate in Mrs. Robert was intended and provided for, that whatever might be the quantity of interest taken, whether a life-estate in the income, .or an absolute estate In the principal, (because a fee tail was contemplated,) in the light of our decision just made on the first point in this case, a Court of Equity would protect such separate estate from the marital rights. This view would, perhaps, be decisive against the husband’s right to the decree he seeks in this case. But we care not, formally, so to decide, inasmuch as other interests and rights depend on this question of entail; and it is, on this account, necessary that we should announce the opinion which we entertain of the same—which opinion will otherwise dispose x»f the question.
We have, therefore, anxiously sought an answer to the fol[140]*140lowing questions: Is this bequest expressed in terms which, by ■ the Statute De donis, would create an estate tail, if the conveyance were of real estate ? What is the import of the whole "instrument, when all its terms-are considered?
These questions, it has been argued, involve the rule in Shelly’s case, on which so much comment has been made; a rule, in itself simple enough, but which, from the conflicting results, i and the obscurely technical character of the many cases in which it has been discussed, is sometimes regarded as a sort of ' monster, with frightful presence, confined in a worse than Cretan i'labyrinth of intricate construction.and tedious technical learning.
That rule amounts only to this: that where an estate of ■,free-hold is limited to a person, and the same instrument con-tains a limitation, mediate or immediate, to his heirs or the ■heirs of his body, the word heirs is a word of limitation; that is, the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple. (2 Jarm. on W. 241, and cases there cited.)
It is obvious that this rule, which is said to be a rule of Law, . and not of construction, (2 Jarm. 241,) fixes nothing except .that the use of certain words, in a certain way, will be held to .indicate an intention to create an estate tail, and of certain -other words, an intention to create a fee simple. When the terms used are heirs of the body, alone, or where they are heirs general, the rule easily and plainly performs its office; but difficulty begins, when words are employed which are assumed to be only equivalent to these terms; or where such words, or words supposed to be similar in effect to each of these terms, are used in the same instrument. Then it is that resort must be had to referential construction; and the task of fixing an intention for the testator, needs more a rule of construction than of Law.
Such is precisely the kind of case we are now considering ; . and it becomes necessary for us, in order to determine the correct import of this will, to invoke the aid of certain rules of construction with more anxiety than the rule in ^S kelly’s ease* ...of which we shall say no more.
[141]*141[4.] ‘These rules of construction are—1. That the intention -of the testator is to be gathered from a consideration of the whole will—a comparison of different terms, and effect given to this intention, if it can be done legally. 2. That his general intention must .prevail -over a particular intention. 3. If there be two repugnant clauses, which cannot be reconciled, the' latter must prevail.
It is not pretended that all the terms used in this will, plainly and explicitly import an intention, on the part of the testator, to create an estate tail. Indeed, it was argued for the complainants that there was some repugnance in these terms; but it is insisted that certain clauses, which come after a passage of a different tenor, 'dearly contemplate an indefinite failure of issue, and a limitation to a particular class of heirs; and that these clauses must control any other words in the will, of -a different import.
Confessedly, then, here are contraricnt terms, and no manifestion of intention, by apt words, and none other, to create an •estate tail. To such an extent is this true, that the learned counsel who concluded the argument for the complainants, felt himself justified in denominating this will, (as a manifestation of the testator’s intentions,) a mare ignotum, by which that ■distinguished counsel designed to say, no doubt, that this instrument was, as it were, a sea or expanse of uncertain, if not of unknown meaning.
Exploring this instrument, which was thus admitted to be uncertain in its import, we began, by looking to those features which it is said denote that this bequest was intended for a particular class of !heirs, and have endeavored to give full effect to these. We observed, that by his will the testator plainly desired to make his grand-daughter and her posterity the ■chief objects of his bounty, and that this property should not go to the paternal kindred of that grand-daughter, in any ■event; that it involves a bequest to the unborn children of unborn children; that it uses terms in one place, which are sometimes regarded as contemplating an indefinite failure of issue; [142]*142and that in another, the heirs of the body of the grand-daughter are specified, as the class of heirs whom the testator desired to receive and enjoy the property conveyed.
[5.] The first feature just mentioned, it is thought, serves to characterize the other terms used; and as such, we have given it full effect. The second, a bequest to the unborn children of unborn children, is contained in the clause of said will, marked No. 4, in the margin of the copy to this opinion annexed and italicized. It is urged that this is a bequest which contemplates a limitation upon a possibility too remote ; that is to say, a possibility upon a possibility. It is true, as Sir Fdward Ooke tells us, that “ a possibility upon a possibility, is never .■admitted by intendment of law”. But we are informed that this expression is not to be understood in too large a sense. (1 Fearne, 251, note.) There may be cases where this is not allowable, because of the uncertainty in the terms; but a bequest to the unborn children and grand-children of one in life, 'is not marked with this uncertainty, and is in no wise objectionable. Routledge vs. Dorril, (2 Ves. Jr. 357.) Such is the ■character of the bequest in this case.
[6.] Neither is this a limitation over, upon the death of an ¡unborn child; and therefore objectionable, because not upon a life or lives in being and twenty-one years, with the usual period of gestation thereafter. On the contrary, it is a limitation over to the children and grand-children of testator’s granddaughter, who may be afterwards born and be living at the time, upon the termination of a life in being, viz : the life of the grand-daughter, now Mrs. Robert.
■ [7.] The third of these features, regarded as indicating an ■intention to create an estate tail, is that which is italicized in the copy of the will hereto annexed, and marked in the margin No. 5, in which the testator directs a certain disposition of hiS ■property to be made, “in case his grand-daughter shall depart this life, leaving no issue of her body, or such issue die, leaving no issue”, &c.
It should be remembered, just here, that this is a disposition •of personal property, and that in England even, terms import[143]*143ing an indefinite failure of issue, yield, as to personal estate,. “readily to expressions and circumstances in the will, tending • to confine them to the restricted sense of issue living at the death”, &c. (2 Jarm. 427. Fearne Con. Rem. 471.)
One of these expressions is, the phrase “leaving no issue”';with respect to which, the settled distinction is, that as applied to real estate, it means an indefinite failure of issue. But, “ in reference to personal .estate, imports a failure of issue, at the death.”
• This rule applies, “ even where the real and personal estate, are comprised in the same gift”. Forth vs. Chapman, (1 P. Wm. 663.) And see, 2 Jarm. 418, 419, and cases there cited.— . The Courts have gone so far, indeed, in some cases of personal property, where they thought the intention of the testator ■ warranted it, as to supply the word “leaving”. (2 Jarm. 419, note.)
The case wo are considering, is a disposition of personal pro-.perty; and the passage of the will under review, contains the phrase, “leaving no issue”, &c. If, in England, this would import a failure of issue at the death, in sueh a case, it will’ certainly have this effect in Georgia; and, therefore, the clause-does not contemplate an indefinite failure of issue, and must be held to have reference to the children and grand-children of Mrs. Robert, living at her death. But this is further manfested, by that portion of the context which limits the dying of the grand-daughter without issue, to a period “before the interest devised to her vests”—that is to say, before she was eighteen years old, and before the negro slaves of the testator had been sent to Hayti, &e.
[8.] It is certainly true, that the terms used in that clause of the will which is italicized, and marked in our copy as No. 6, contain expressions whose legal signification is such as is usually and technically employed for the creation of an estate-tail. These words direct, that the estate shall go over to Mrs.. Crawford and Mr. Redding, and their children, the heirs of the body of the grand-daughter, and of her mother failing; [144]*144and express the fixed purpose, that the property shall go to, and be enjoyed by the first named persons only, in case his grand-daughter shall die without heirs of her body.
[9.] These-terms arc repugnant to other clauses of the will. They are last employed, and would, undoubtedly, be held to have the effect of expressing an intention to confine the bequest to a particular class of heirs, designed to take in succession, in exclusion of heirs general, if these other clauses were not in the nature of words of explanation—if there were not other terms and circumstances connected with this bequest, which qualify and control the clause under consideration. These terms and circumstances, in our opinion, are:
1. The passage of this will, on which comment has been already made, marked in the margin of the copy hereto annexed as No. 5. This clause, as we have seen, as connected with a bequest of personal property, clearly and definitely expresses an intention, that the issue who are to take after Mrs. Robert, are those whom she shall leave living at her death—that is to say, her children and grandi-ehildren. 2. The- terms which stand forth conspicuously in the first disposing clause of the will, and are contained in the passage marked No. 2 in the copy, and also in the passage marked No. 8. In these, the testator gives the principal of the- property, “after the decease” of his gra-nd-daughter, “ to such child or children as she, the said Frances T. Pierce may have, to him, her and them, and to their heirs forever”. It is true, as has- been urged, that the word “children” is not necessarily a word of purchase. Though this bo its general character, it may, nevertheless, be controlled by other and repugnant words in a will. But there are words in immediate connection with it here, which are conclusive of its import, as a word of purchase.— First, the phrase, “after the desease”, (twice here used,) which, in a bequest of personal property, will be held to have reference to a dying without issue living, at the death of the first taker. Pinbury vs. Elkin, (1 P. Wm. 563.) 2 Vern. 758. Wilkinson vs. South, (7 Burn. & E. 553.) Trotter vs. Osnold, (1 Cox, 317.) Next, the words “ to him, her and them, [145]*145and to their heirs forever”, which are technically significant of an intention to create an absolute estate; and are appropriate words to be applied to these children, as to the stock of a new inheritance.
3. The terms “in case any such child or children should die during the life of its mother, leaving issue of their body, such issue shall, in such case, represent the parent”, which immediately follow these just mentioned, have a like significance. If the object had been to create an estate tail, as issue ad infinitum is included in such an estate, it would seem that a necessity for this provision, as to the children of deceased children, would not have presented itself to the mind of the testator.
4. The fact that this is a conveyance of personal estate, relaxes the rigorous technical significance of words commonly used to create an estate tail, and renders them more accessible to referential construction; for, “ in regard to personal estate, it seems to be clear, that words denoting a failure of issue, following a bequest to children, refer to the objects of that gift”. Doe d. Lyde vs. Lyde, (1 D. & E. 596.) Malcolm vs. Taylor, (2 Russ. & M. 416. 2 Jarm. 362.) And there is “ no valid ground of distinction, between gifts over, on failure of heirs of the body, and on failure of issue, in reference to the operation of the referential construction”. Lewis on Perp. 307.)
5. Estates tail are lawful in Great Britain, and the words heirs, heirs of the body, &c., have a fixed technical meaning; and, therefore, when, in that country, such words are used in an instrument of conveyance, presumptions may favor these estates. But such estates are prohibited in Georgia—these words are, by legislation, as it were, deprived of that settled signification; and therefore, presumption will not here, readi-* ly favor such estates.
6. In this case, of a bequest containing conflicting and repugnant terms, which, even by the admissions of complainants’ counsel, render the testator’s meaning doubtful, and which can [146]*146be determined by referential (construction only, it is well to be-mindful, that a construction opposed to the conclusion that an, estate tail is created by the terms of this will, to a certain extent, at least, effectuates the intention of the testator—presumes, as it were, in favor of his acts, as a law-abiding citizen, and is in entire harmony with the law; whilst the result of a contrary construction, is totally to defeat the testator’s intentions—is to impute to him a design to violate the law, and a consummation of that design, by the execution of an illegal last will and testament.
These are the super-added, or rather the associated, words of explanation—the qualifying and controlling terms, circumstances and considerations, which, taken in connection with the whole frame of that instrument, leave no doubt on our mind, that Jacob Wood, by his will, intended the children of his grand-daughter, if such should be born, and in default thereof, Mrs. Crawford and Mr. Redding to take the body of this property, at the termination of the life-estate in that grand-daughter, as purchasers, and not by descent.
[10.] We add that, in consideration of some of the circumstances just mentioned, and of the whole scope and purpose' of this will, as it impresses us, we think that the gift upon contingency, to Mrs. Crawford and Mr. Redding, and their children, is a gift of the estate, upon the terms specified, absolutely to this lady and gentleman, and that the term children, is used as synonymous with heirs general, in this conveyance of personal estate. (2 Jarm. 73.)
It is true, that in the conveyance of property to one, and' the children of another, as “ to my brother A, and the children of my brother B”, they all take an equal share; that is, the children take pier capita with A. (2 Jarm. 111.) Blackler vs. Webb, (2 P. Wm. 383.)
But this is not the ca.se here, and for the reason suggested, we think that Mrs. C. and Mr. R. were designed, in the event Contemplated, to take an absolute estate, equally in this property.
[11.] Aided by the opinions which we have thus formed, on [147]*147the points just considered, we are conducted to the conclusion, that the legal title to the corpus of the property here in question, was, by the will of this testator, vested in these trustees to subserve the uses and purposes declared in the will; that the trust thus created, rvas a continuing trust, designed to exist until these trustees completed the arrangements contemplated by the testator, and perfected the scheme by him indicated. That, in consummation of this scheme, they were directed to make certain dispositions of different portions of his property, which are pointed out in the will; to raise the sum of fifty thousand dollars from that property—to invest the same, together with all other sums accumulating under the dispositions contemplated, in the manner directed—to pay the sum of eight hundred dollars, in semi-annual payments, to his grand-daughter, Frances T. Pierce, -until the said sum of fifty thousand dollars was raised as directed: and until she should arrive at the age of eighteen, or marry, to lay out all income, above thsi sum of 'eight hundred dollars, at interest, until his grand- daughter should arrive at this age; and after that, to pay to her the whole of the annual interest on, or income of this fund, during her life, the same to be taken and received by her as her separate estate, to be free from the control^ and unaffected by the marital rights of any husband, whom she might at any time marry; and that immediately after her decease, they were required to transfer or assign the body or principal of this property, and the whole and absolute interest therein, to such child or children, as she might leave at her death, conveying the share or shares, of any child or children, which might die before her, to the child or children of such deceased parent or parents, as might be living at that period; and in default of any such children or grand-children of his grand-daughter, living at her death, the trustees were to convey or transfer the same, absolutely, to Mrs. Kitty Crawford, and her brother, Mr. Redding.
It follows, that the complainant^ Frances W. Robert, had no interest in the estate, concerning which, these trustees have been called >on to account. It would seem appropriate, there- [148]*148' fore, that he should not be joined with her, in his relation of 'husband, as a party complainant to this bill. Sigel vs. Phelps, (7 Sim. 239. 1 Molloy, 543.) Laird vs. Tobin. Wake vs. Parker, (2 Keene, 59.) In this last case, Lord Lang dale . says, that where the husband is joined with the wife, the suit has always been considered as the husband’s, and in such case, “ it must be supposed to bo under his influence ”. He adds, that “ he may prosecute it in a manner not favorable to her interests”. The better practice, therefore, is for her to sue by prochein ami.
[12.] We think, however, that an amendment might have • been made, a prochein ami for Mrs. Robert, substituted, and ' the bill so modified, as to enable the latter to have and demand 1 of these trustees, the discovery and account to which she is • clearjy entitled. No formal motion to amend was made, it is •true, but we think that the principles of substantial justice, ■and the practice in Courts of Equity, authorize a Chancellor, ■under such circumstances, to direct an amendment, rather than to turn the parties out of Court. Wade vs. Parker, (2 Keene, 59.)
While affirming the learned and laborious judgment of the •Court below, on all the other grounds, on this, we reverse it.