By the Court, Edmonds, J.
Mrs. Sherman has an interest in her father’s estate: 1. As cestui que trust of a share devised to her use for life, with remainder to her issue, the income payable to her, irrespective of her husband. 2. As purchaser in fee of a portion of Michael B.’s share: and 3. The bill claims that under that purchase she acquired her brother Michael’s share in the portions of her brothers Charles and Thomas. This last claim is denied by the answers: Michael insisting that his interest in Charles’ and Thomas’ portions did not pass by his conveyance; but the two first statements of her interest are admitted.
The object of the bill is, 1. To remove the trustees of her estate, appointed under her father’s will: 2. To have an account as well of all the estate of her father, as of the rents and profits received by the trustees upon that part which they hold in trust for her for life, and upon that part whereof she is seised in fee: and 3. To have the estate distributed agreeably to the will.
In the part which is held in trust for Mrs. Sherman for life, with remainder to her child, it is manifest that her husband has [412]*412not any interest whatever ; the entire beneficial interest being in her and her child. The bill asks an account of this part thus situated, and for the removal of the trustees, without making the child a party to the suit, or making Mrs. Sherman a party, except as she is joined with her husband as co-plaintiff. Can this be allowed 1
The suit can be controlled entirely by the husband, who has no interest, and in defiance of the wishes of those who alone have an interest. Could the trustees make a valid contract with him to surrender their trust into his hands ? Could they render to and settle with him an account of the estate thus held by them in trust ? Clearly not. Then upon what principle could the court compel them to do either 1 The trustees could not be discharged either from their trust or upon an accounting, without bringing properly into court the real parties in interest, namely, Mrs. Sherman and her child.
It is insisted, however, that Mrs. Sherman is a party in a proper manner, and indeed in such manner that she may properly be regarded as representing her child’s interest. Where a suit is brought by the husband in his own name and in that of his wife, it is his suit only, and will not be absolutely binding on her. (Story's Eq. Pl. § 61. Grant v. Van Schoonhoven, 9 Paige, 255. Griffith v. Hood, 2 Ves. 452. Simons v. Horwood, 1 Keen, 7. Hughes v. Evans, 4 S. & S. 188.) But on his death she may abandon it without even being liable for costs ; and the suit is abated 'by his death unless she chooses to proceed. (Story's Eq. Pl. § 361.) And where the suit is brought by the wife for her separate property it is incorrect practice for the husband to be made a co-plaintiff. She ought to sue as sole plaintiff by her next friend, and the husband be made a party defendant; for he may contest that it is her separate property, and the claim may be incompatible with his marital rights. [Story's Eq. Pl. § 63. Sigal v. Phelps, 7 Sim. Rep. 239. Wake v. Parker, 2 Keen, 59.) In the latter case, Lord Langdale remarks, that in cases of account, where the wife is, as to her separate estate, entitled to prosecute a suit by her own authority, independent of her husband, there seems to be no [413]*413reason why a suit brought by her husband should bind her; why she may not at any time institute a new suit for the same matter, by her next friend; or why a decree should be a bar to a new suit instituted by her next friend. And the court, in Hughes v. Evans, (1 Sim. & Stu. 185,) held that where the husband and wife join in the suit as plaintiffs it is to be considered as the suit of the husband alone, and will not prejudice a future claim by the wife in respect of her separate estate. And this is upon the principle that not only ought the wife to be protected in the enjoyment of her separate property, but the parties who are sued ought to be protected against concurrent or consecutive demands of the husband suing in the names of himself and wife, and of the wife suing by her next friend.
It must not, however, be overlooked, that the objection which we are considering was not made in the answer, or by demurrer, but only on the hearing, and not at the first opportunity which the defendants had to make it. In such case it is not uncommon for the court to disregard the objection that the bill is the husband’s alone; especially where the matter demanded is a specific sum which the court may order secured for the use of the wife, and thus protect her interest, and at the same time fully protect the paying party for obeying the decree of the court. But in a case where the separate estate of the wife is to be ascertained by account, the court feels itself bound to give effect to the objection, in order fully to protect the accounting party against a subsequent independent claim of the wife; and because the wife appears to have a right to have her separate estate ascertained by a proceeding of her own, independently of her husband. (Wake v. Parker, supra. Calv. on Part. ch. 3, § 21, pp. 365, 374.)
Thus far, then, the assistant vice chancellor was right in refusing a decree for an account, on the husband’s bill alone; unless it was amended by making the wife a party by her guardian ad litem.
But whether her child ought also to be a party is another question. It is very clear to me that in the present condition of this case, it being the husband’s bill alone, and the wife not [414]*414being a party independently of him, she is not in a condition adequately to represent the whole share and protect her child’s interest in the residuum from the encroachments of her husband. She appears only as a plaintiff with, and in subordination to, her husband, in a suit which, so far as she is concerned, is entirely under his control. (Simons v. Horwood, 1 Keen’s Rep. 7.) In what form and by what proceeding can she interfere independently of him, or antagonistical to him, for the protection of her child’s interest 1 But if she were a party independent of him, acting by her guardian ad litem, she could not be regarded as representing the whole interest, as well the remainder as the particular estate. For while, as a general rule, it is sufficient to bring before the court the first person in being who has a vested estate of inheritance, together with those claiming the prior interests, (for instance a tenant for life,) omitting those who may claim in remainder or reversion after such vested estate of inheritance, it is also a general rule that in suits respecting the trust property, all beneficially interested are necessary parties. (Mitf. Pl. 173. Eagle Fire Ins. Co. v. Cammet, 2 Edw. Rep. 128.) Here the first estate of inheritance is in the child of Mrs. Sherman, who must be made a party.
In all cases where the suit is to take the trust fund out of the hands of the trustees, or where it is for an account of the trust fund, being in fact a bill for the execution of the trust, the cestuis que trust must all be parties. (Manning v. Thesiger, 1 S. & S. 106. Hamm v. Stevens, 1 Vern. 110. Calv. on Part.
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By the Court, Edmonds, J.
Mrs. Sherman has an interest in her father’s estate: 1. As cestui que trust of a share devised to her use for life, with remainder to her issue, the income payable to her, irrespective of her husband. 2. As purchaser in fee of a portion of Michael B.’s share: and 3. The bill claims that under that purchase she acquired her brother Michael’s share in the portions of her brothers Charles and Thomas. This last claim is denied by the answers: Michael insisting that his interest in Charles’ and Thomas’ portions did not pass by his conveyance; but the two first statements of her interest are admitted.
The object of the bill is, 1. To remove the trustees of her estate, appointed under her father’s will: 2. To have an account as well of all the estate of her father, as of the rents and profits received by the trustees upon that part which they hold in trust for her for life, and upon that part whereof she is seised in fee: and 3. To have the estate distributed agreeably to the will.
In the part which is held in trust for Mrs. Sherman for life, with remainder to her child, it is manifest that her husband has [412]*412not any interest whatever ; the entire beneficial interest being in her and her child. The bill asks an account of this part thus situated, and for the removal of the trustees, without making the child a party to the suit, or making Mrs. Sherman a party, except as she is joined with her husband as co-plaintiff. Can this be allowed 1
The suit can be controlled entirely by the husband, who has no interest, and in defiance of the wishes of those who alone have an interest. Could the trustees make a valid contract with him to surrender their trust into his hands ? Could they render to and settle with him an account of the estate thus held by them in trust ? Clearly not. Then upon what principle could the court compel them to do either 1 The trustees could not be discharged either from their trust or upon an accounting, without bringing properly into court the real parties in interest, namely, Mrs. Sherman and her child.
It is insisted, however, that Mrs. Sherman is a party in a proper manner, and indeed in such manner that she may properly be regarded as representing her child’s interest. Where a suit is brought by the husband in his own name and in that of his wife, it is his suit only, and will not be absolutely binding on her. (Story's Eq. Pl. § 61. Grant v. Van Schoonhoven, 9 Paige, 255. Griffith v. Hood, 2 Ves. 452. Simons v. Horwood, 1 Keen, 7. Hughes v. Evans, 4 S. & S. 188.) But on his death she may abandon it without even being liable for costs ; and the suit is abated 'by his death unless she chooses to proceed. (Story's Eq. Pl. § 361.) And where the suit is brought by the wife for her separate property it is incorrect practice for the husband to be made a co-plaintiff. She ought to sue as sole plaintiff by her next friend, and the husband be made a party defendant; for he may contest that it is her separate property, and the claim may be incompatible with his marital rights. [Story's Eq. Pl. § 63. Sigal v. Phelps, 7 Sim. Rep. 239. Wake v. Parker, 2 Keen, 59.) In the latter case, Lord Langdale remarks, that in cases of account, where the wife is, as to her separate estate, entitled to prosecute a suit by her own authority, independent of her husband, there seems to be no [413]*413reason why a suit brought by her husband should bind her; why she may not at any time institute a new suit for the same matter, by her next friend; or why a decree should be a bar to a new suit instituted by her next friend. And the court, in Hughes v. Evans, (1 Sim. & Stu. 185,) held that where the husband and wife join in the suit as plaintiffs it is to be considered as the suit of the husband alone, and will not prejudice a future claim by the wife in respect of her separate estate. And this is upon the principle that not only ought the wife to be protected in the enjoyment of her separate property, but the parties who are sued ought to be protected against concurrent or consecutive demands of the husband suing in the names of himself and wife, and of the wife suing by her next friend.
It must not, however, be overlooked, that the objection which we are considering was not made in the answer, or by demurrer, but only on the hearing, and not at the first opportunity which the defendants had to make it. In such case it is not uncommon for the court to disregard the objection that the bill is the husband’s alone; especially where the matter demanded is a specific sum which the court may order secured for the use of the wife, and thus protect her interest, and at the same time fully protect the paying party for obeying the decree of the court. But in a case where the separate estate of the wife is to be ascertained by account, the court feels itself bound to give effect to the objection, in order fully to protect the accounting party against a subsequent independent claim of the wife; and because the wife appears to have a right to have her separate estate ascertained by a proceeding of her own, independently of her husband. (Wake v. Parker, supra. Calv. on Part. ch. 3, § 21, pp. 365, 374.)
Thus far, then, the assistant vice chancellor was right in refusing a decree for an account, on the husband’s bill alone; unless it was amended by making the wife a party by her guardian ad litem.
But whether her child ought also to be a party is another question. It is very clear to me that in the present condition of this case, it being the husband’s bill alone, and the wife not [414]*414being a party independently of him, she is not in a condition adequately to represent the whole share and protect her child’s interest in the residuum from the encroachments of her husband. She appears only as a plaintiff with, and in subordination to, her husband, in a suit which, so far as she is concerned, is entirely under his control. (Simons v. Horwood, 1 Keen’s Rep. 7.) In what form and by what proceeding can she interfere independently of him, or antagonistical to him, for the protection of her child’s interest 1 But if she were a party independent of him, acting by her guardian ad litem, she could not be regarded as representing the whole interest, as well the remainder as the particular estate. For while, as a general rule, it is sufficient to bring before the court the first person in being who has a vested estate of inheritance, together with those claiming the prior interests, (for instance a tenant for life,) omitting those who may claim in remainder or reversion after such vested estate of inheritance, it is also a general rule that in suits respecting the trust property, all beneficially interested are necessary parties. (Mitf. Pl. 173. Eagle Fire Ins. Co. v. Cammet, 2 Edw. Rep. 128.) Here the first estate of inheritance is in the child of Mrs. Sherman, who must be made a party.
In all cases where the suit is to take the trust fund out of the hands of the trustees, or where it is for an account of the trust fund, being in fact a bill for the execution of the trust, the cestuis que trust must all be parties. (Manning v. Thesiger, 1 S. & S. 106. Hamm v. Stevens, 1 Vern. 110. Calv. on Part. 211.) Where the suit is merely to enable the trustees to get possession of the trust fund, the cestuis que trust may be omitted, but not where it relates to the execution of the trust. (Calv. on Part. 214.)
The tenant for fife represents the entire fee only under peculiar circumstances, (Calv. 192,) as for instance, the case where the remainderman in tail is not in esse. (2 Vern. 526.) But such persons only are represented by the tenant for life, whose interest may be barred by the child of the tenant for life. (Lloyd v. Johnes, 9 Ves. 55.) The assistant vice chancellor was then [415]*415right also in exacting that Mrs. Sherman’s child should be a party to the suit.
Whether the personal representatives of Michael Burnham, the testator, ought to be parties, must depend on the frame and scope of the bill.
It asks for a just, full, trae, and particular account of all and .singular the estate and effects of the testator Michael Burnham deceased, and of every part thereof, as well against Michael jun. and James, as administrators of the surviving executor, as .against Michael as executor de son tort, and praying that such account may set forth the particular nature, quantities and qualities, and true and utmost value of the estate and effects of the •testator, and of every part thereof, and how it has been disposed of, and when, and to whom, and for what consideration, and whether eany and what part remains undisposed of, and why. If the bill had confined itself to the property which had come to the hands of the trustees as such, there might, perhaps, be force in the objection that the personal representatives were not necessary parties; but when it goes farther, and seeks of the defendants that account which can only be rendered by the representatives of the testator, they must of necessity be made parties; for otherwise the accounting would not bind the estate. It is doubtless to avoid this obvious difficulty that the bill seeks to charge Michael jun. as an executor de son tort; evidently overlooking the provision of our statute (2 R. S. 449, § 17) which abolishes all liability as executor de son tort, but subjects, a party who interferes with the property of a deceased person to responsibility as a wrongdoer, to the executors or general or special administrator of the deceased person.
In all three of the aspects, then, in which the assistant vice chancellor has thought the cause should stand over for the addition of other parties, I am inclined to think he was right, and his decree ought to be affirmed with costs.
I have not overlooked the suggestion of the plaintiffs that they were properly joined as plaintiffs, because the wife had a joint interest with her husband. But the obvious answer is ¡that the bill is not confined to that joint interest, but goes faiv [416]*416ther, and aims at her separate estate. In order to reach that, she ought to be made a party by her next friend, independently of her husband, as representing the life estate, and her child as seised of the remainder. It is this phase of the bill which renders other parties necessary; and that necessity is not obviated by the fact that the bill includes, with her separate estate, a demand of relief as to a joint interest.
Decree of the assistant vice chancellor affirmed with costs.