COLLIER, C. J.
1. It may be stated, as a general rule, that where the wife disposes of her property to a third person, without the knowledge of her husband, after the contract of marriage, and before its solemnization, the transaction will be considered as fraudulent against the latter. [2 P. Wms. Rep. 274; 1 Mylne & K. Rep. 510.] But the court has sometimes taken into consideration the object of the conveyance, and the situation of the husband in point of property, and relaxed the rule. [Meigs’ Rep. 142.]
In the present case, it is admitted, that the settlement made by Mrs. Hargrove, previous to her marriage, upon her daughter, was assented to by her husband ; but it is insisted, that the ulterior disposition of the daughter’s portion, was a fraud upon his marital rights, and so taints the transaction as to avoid it in loto. This conclusion, we think, cannot be maintained. It is difficult to conceive how the daughter, the innocent beneficiary of her mother’s bounty, can be affected by a gift which cannot take effect until after her death; and then only upon a contingency which may never happen. The law will not indulge the presumption, that the contingent gift will ever vest in possession, but rather presumes that the property will remain with the daughter and her descendants ad infinitum. If however, the vesting of the remainder depended upon no other event but the ceaseless and certain progress of time, still the rights of the first donee would be unaffected by the imputed fraud on the part of the mother. [120]*120The daughter was incompetent, in consequence of her tender years, to participate in any scheme injurious to the marital rights of the defendant in execution ; and, in fact, nothing of the kind is 'pretended. She was entirely passive, receiving the provision which her mother made for her with the assent of an intended husband; and it is not now for the latter to object that the daughter shall claim nothing under the deed, because the mother thought proper to dispose of a contingent remainder in the same property.
But are the rights of the defendant in execution in any manner impaired, because the gift embraces a person not contemplated by him. Suppose the gift had been absolutely to the daughter, or to herself and issue, the husband might, perhaps, through his wife, if the daughter died sole and without issue, have become entitled to the property. Upon the death of the daughter, thus circumstanced, if the husband have rights, it wiil be competent for him to assert them, against the person claiming in remainder; but the gift to the first donee being unobjectionable in itself, must be supported. Indeed, this conclusion seems so clear, that it results from a mere statement of the proposition, and requires no 'argument for its elucidation.
2. The first section of the act of 1823, “to prevent fraudulént conveyances,” [Clay’s Dig. 255, § 4,] enacts that, “all property mortgaged, or under any deed of trust, orother legal incumbrance, which may afterwards be removed to any county in this State, shall be liable to the payment of any debts, which the holder of such mortgaged property may contract, after his settlement in 'such county;” unless the mortgage, &c. shall be duly recorded in ■the clerk’s office of the county court of the county to which the property is removed within six months. Where the property is brought from another State into this, twelve months is allowed for recording the mortgage, &c. “after such settlement as aforesaid.”
To bring a case within this statute, it should be shown, that the debt in question was contracted, after the settlement of the holder of “the mortgaged property” in the county to which it'was removed. In the case before us, there is no proof of the timé when, or how, the liability was incurred, upon which the plaintiff’s judgment was rendered; and although the slaves were in the possession of the defendant in execution in the county of Rus[121]*121sell, yet perhaps the proof is defective in not showing that he himself had settled there. But if these defects were all removed, we should say, that the deed in question, does not come within the act. The statute, as its terms indicate, was intended to apply to deeds or other legal incumbrance, by which personal property was charged with a debt or duty. True, in the present case the slaves were conveyed by the mother, in trust for her daughter, yet they cannot, according to the common acceptation of terms, be said to be .“under any deed of trust.” They are under no in-cumbrance; the right of the mother has passed from her, as fully as if they had been conveyed by an absolute deed, in which no trustees were interposed; the legal title vests in the trustees, and the equitable title in the cestui que trust. So that in no just sense can the slaves be said to be in any manner incumbered. The defendant in execution does not claim a right for himself, or any -one else, under a mortgage, deed of trust, or other incumbrance, but the facts when denuded, show that he removed and retained the slaves as a mere trespasser.
But if the terms of the statute were so extensive as to embrace within its letter such a deed as the one before us, yet ifit allowed of any latitude of construction, we should be strongly disinclined to apply it, so as to defeat the estates of infants, or others who are presumed to be incompetent to attend to their own interests. [Swift v. Fitzhugh. 9 Porter’s Rep. 39.]
3. The second section of the statute of frauds, among- other things, declares that “where any loan of goods and chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained by the space of three years, without demand, made and pursued by due course of law, on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder, or otherwise, in goods or chattels, the possession whereof shall have remained in another as aforesaid; the same shall be taken as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act; and that the absolute property is with the possession; unless such loan, reservation, limitation or property, were declared by will, or by deed in writing, proved and recorded as aforesaid.’” [Clay’s Dig. 255.]
The facts of this case do not come within the provisions of the [122]*122act cited. It is explicitly shown, that a bill was filed to prevent the removal of the slaves from Georgia to this State, and that after their removal, a suit in chancery was brought against the defendant in execution, for their recovery by the claimants: And further, that his possession commenced, and has been continued, without their assent or approbation. In Myers v. Peek’s adm’r, [2 Ala. Rep. 627,] it was held, that the statute applied, “where the owner of personal property voluntarily parts With the possession to another, either with or without an express contract.” Here the possession was obtained against the consent of the trustees; and if the rights of the cestui que trust could be in any manner affected by it under a different state of circumstances, the assertion of a claim by suit, and its continued prosecution, would bring her within the saving of the act, and serve as a substitute for registration.
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COLLIER, C. J.
1. It may be stated, as a general rule, that where the wife disposes of her property to a third person, without the knowledge of her husband, after the contract of marriage, and before its solemnization, the transaction will be considered as fraudulent against the latter. [2 P. Wms. Rep. 274; 1 Mylne & K. Rep. 510.] But the court has sometimes taken into consideration the object of the conveyance, and the situation of the husband in point of property, and relaxed the rule. [Meigs’ Rep. 142.]
In the present case, it is admitted, that the settlement made by Mrs. Hargrove, previous to her marriage, upon her daughter, was assented to by her husband ; but it is insisted, that the ulterior disposition of the daughter’s portion, was a fraud upon his marital rights, and so taints the transaction as to avoid it in loto. This conclusion, we think, cannot be maintained. It is difficult to conceive how the daughter, the innocent beneficiary of her mother’s bounty, can be affected by a gift which cannot take effect until after her death; and then only upon a contingency which may never happen. The law will not indulge the presumption, that the contingent gift will ever vest in possession, but rather presumes that the property will remain with the daughter and her descendants ad infinitum. If however, the vesting of the remainder depended upon no other event but the ceaseless and certain progress of time, still the rights of the first donee would be unaffected by the imputed fraud on the part of the mother. [120]*120The daughter was incompetent, in consequence of her tender years, to participate in any scheme injurious to the marital rights of the defendant in execution ; and, in fact, nothing of the kind is 'pretended. She was entirely passive, receiving the provision which her mother made for her with the assent of an intended husband; and it is not now for the latter to object that the daughter shall claim nothing under the deed, because the mother thought proper to dispose of a contingent remainder in the same property.
But are the rights of the defendant in execution in any manner impaired, because the gift embraces a person not contemplated by him. Suppose the gift had been absolutely to the daughter, or to herself and issue, the husband might, perhaps, through his wife, if the daughter died sole and without issue, have become entitled to the property. Upon the death of the daughter, thus circumstanced, if the husband have rights, it wiil be competent for him to assert them, against the person claiming in remainder; but the gift to the first donee being unobjectionable in itself, must be supported. Indeed, this conclusion seems so clear, that it results from a mere statement of the proposition, and requires no 'argument for its elucidation.
2. The first section of the act of 1823, “to prevent fraudulént conveyances,” [Clay’s Dig. 255, § 4,] enacts that, “all property mortgaged, or under any deed of trust, orother legal incumbrance, which may afterwards be removed to any county in this State, shall be liable to the payment of any debts, which the holder of such mortgaged property may contract, after his settlement in 'such county;” unless the mortgage, &c. shall be duly recorded in ■the clerk’s office of the county court of the county to which the property is removed within six months. Where the property is brought from another State into this, twelve months is allowed for recording the mortgage, &c. “after such settlement as aforesaid.”
To bring a case within this statute, it should be shown, that the debt in question was contracted, after the settlement of the holder of “the mortgaged property” in the county to which it'was removed. In the case before us, there is no proof of the timé when, or how, the liability was incurred, upon which the plaintiff’s judgment was rendered; and although the slaves were in the possession of the defendant in execution in the county of Rus[121]*121sell, yet perhaps the proof is defective in not showing that he himself had settled there. But if these defects were all removed, we should say, that the deed in question, does not come within the act. The statute, as its terms indicate, was intended to apply to deeds or other legal incumbrance, by which personal property was charged with a debt or duty. True, in the present case the slaves were conveyed by the mother, in trust for her daughter, yet they cannot, according to the common acceptation of terms, be said to be .“under any deed of trust.” They are under no in-cumbrance; the right of the mother has passed from her, as fully as if they had been conveyed by an absolute deed, in which no trustees were interposed; the legal title vests in the trustees, and the equitable title in the cestui que trust. So that in no just sense can the slaves be said to be in any manner incumbered. The defendant in execution does not claim a right for himself, or any -one else, under a mortgage, deed of trust, or other incumbrance, but the facts when denuded, show that he removed and retained the slaves as a mere trespasser.
But if the terms of the statute were so extensive as to embrace within its letter such a deed as the one before us, yet ifit allowed of any latitude of construction, we should be strongly disinclined to apply it, so as to defeat the estates of infants, or others who are presumed to be incompetent to attend to their own interests. [Swift v. Fitzhugh. 9 Porter’s Rep. 39.]
3. The second section of the statute of frauds, among- other things, declares that “where any loan of goods and chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained by the space of three years, without demand, made and pursued by due course of law, on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder, or otherwise, in goods or chattels, the possession whereof shall have remained in another as aforesaid; the same shall be taken as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act; and that the absolute property is with the possession; unless such loan, reservation, limitation or property, were declared by will, or by deed in writing, proved and recorded as aforesaid.’” [Clay’s Dig. 255.]
The facts of this case do not come within the provisions of the [122]*122act cited. It is explicitly shown, that a bill was filed to prevent the removal of the slaves from Georgia to this State, and that after their removal, a suit in chancery was brought against the defendant in execution, for their recovery by the claimants: And further, that his possession commenced, and has been continued, without their assent or approbation. In Myers v. Peek’s adm’r, [2 Ala. Rep. 627,] it was held, that the statute applied, “where the owner of personal property voluntarily parts With the possession to another, either with or without an express contract.” Here the possession was obtained against the consent of the trustees; and if the rights of the cestui que trust could be in any manner affected by it under a different state of circumstances, the assertion of a claim by suit, and its continued prosecution, would bring her within the saving of the act, and serve as a substitute for registration. But, if the facts were otherwise, and the possession of the defendant in execution had actually been permitted by the trustees for three years, without suit, could his creditors or purchasers prevail against an infant?
4. It may be laid down generally, that the powers of a trustee depend upon the nature and purposes of the trust. Under particular circumstances, it is said, he is capable of exercising the discretionary powers of the bona fide proprietor, otherwise, the trust estate might be injuriously affected. The necessity of the case may demand an immediate decision, as where the cestui que trust is under disability, or not yet in existence, &c. “The alternative of instituting a suit for the mere purpose of consulting the court, would always be attended with considerable expense, and it may be an expense wholly disproportioned to the importance of the occasion. It is evidently in furtherance of the ces-tui que trust’s own interest, that where the circumstances of the case require it, the trustee should be at liberty to exercise a reasonable discretionary power-” [Lewin on Trusts and Trustees, 412-3; 2 Story’s Eq. 241-2-3; Willis on Trustees, 127.] It is for these reasons said to be a rule in equity, that what is compel-lable by suit, is equally valid, if done by the trustee without suit. Thus it has been held, that an executor may appropriate a legacy, where the appropriation is such as the court itself would have directed. So, where the parent is unable to maintain his child, the interest of a legacy, or where that is inconsiderable, a part of the principal, has been been applied to that purpose. [Lewin on [123]*123Trusts, &c. 413-4. The learned author last cited, remarks, “The rule, that what is compellable by suit, is equally valid if done without suit, must be received with this qualification, that if a suit has been already instituted for the execution of the trust, that takes the administration out of the trustee and transfers it to the court: the original power of the trustee is from that moment paral ized, and the authority of the court must sanction every subsequent proceeding.” [Id. 417.] In respect to the rule, Mr Justice Story says, it “is a doctrine requiring many qualifications, and by no means to be generally relied on for safety.” [2 Yol. Eq. 510.]
It is stated as a fundamental maxim in equity, that no act of the trustees, except a conveyance to a purchaser for a valuable consideration, without notice, can vary or prejudice the rights of those beneficially interested; but the trustee will be compelled in equity to make good the trust. [Willis on Trustees, 167, 8. See also, Fletcher on Trustees, 48-9.]
The division of the joint property between the trustees of the donee and the husband of her mother, would materially affect the rights of the parties in interest, by giving a several property in one moiety to each. The purposes of the trust, it would seem, does not l-equire, that the trustees should possess the power to assent to such an arrangement, so as to bind conclusively, their cestui que trust. If beneficial for her, it is possible that a court of equity might sanction their act, but without such judicial approbation,it is conceived that it could not operate as a definitive adjustment of her rights. Whether the division is prejudicial to the cestui que trust, is an inquiry which could not have been made on the trial of this cause; trusts are among the subjects of exclusive jurisdiction in equity, and that court is the appropriate arbiter to settle the interest of parties where they are involved. This view does not at all conflict with the idea that trustees may exercise such discretionary powers as are necessary and compatible with the trust committed to them, it only shows that their discretion is notunlimited, and in some cases where the emergency is not pressing, and the interests at stake are ce-extensive with the trust itself, the trustee should seek the advice of a court of chancery. Here, the duty of the trustees, as in other cases, is to protect the property for the benefit of their cestui que trust, and not to relinquish [124]*124the right of the latter to a part, that .her right to the residue may be confirmed; yet such is the object proposed by the division.
The execution in favor of the plaintiff, was a lien on the undivided moiety of Hargrove, upon the hypothesis, that he became the legal proprietor of the interest of his wife in the slaves; and that lien canot be defeated by the division that was made. It is wholly immaterial, so far as it respects the present case, whether his share of the property has been sold by other judgment creditors for the payment of his debts; the joint interest of the cestui que trust is unaffected by the change of possession. That it is competent for a court of equity to arrest all proceeding by execution, against the slaves in question, until the rights of the donee shall be settled, we think will not be questioned; and in setting apart her share, it will be most proper to assign to her those that remain in the trustee’s hands, looking to those that have been sold, in order to ascertain their relative value, or to make good any deficit in what the cestui que trust may bd entitled to on settlement.
Without a particular application of the points considered, to the questions raised upon the bill of exceptions, it is obvious that the circuit court erred in the charge given in respect to the legal effect of the division of the property. The judgment is consequently reversed, and the cause remanded.