The Chancellor.
From the testimony in this case, there is very little doubt that Harpert Van Deusen, the elder, ^between 40 and 50 years since, received a certain sum of mon[71]*71ey, the precise amount of which cannot now be ascertained, and that this money then belonged to his infant daughter. It also appears that he took home the black girl, after the expiration of her indenture, in 1797, and had the benefit of her services until her death. Although, as the mere guardian by nature, he had no right to receive the money due on the bond, or to receive the services of the slave, yet this court will hold hiin liable to the same extent as if he had been the legally constituted guardian, so far as he has had the benefit of the infant’s property. A mere stranger, or wrongdoer, who takes possession of the property of an infant, and receives the rents and profits thereof, may, in equity, be considered as the guardian of the infant, and may be compelled to account as such. (1 West’s Rep. 265. 2 Peer Wm’s, 645. 1 Vern. 296. 2 Car. Law Repos. 412.) The father however could not be charged with the value of the slave, but only with the net profits of her labor received by him, over and above the expenses of her clothing and support. The death of the slave at the early age of 24 or 25, as stated in the bill, was a loss for which the father could not be answerable. If the question as to the receipt of the amount due on the bond, and the services of the black girl, was the only one in this case, it might be necessary to inquire whether the loose declarations of the father, which are testified to by the children of the complainants, were sufficient to revive the cause of action for these stale claims which had lain dormant for more than twenty-five years after the husband’s legal right to recover such claims had accrued. In relation to the equity of these claims, it may be sufficient to remark that the complainants undoubtedly received an ample equivalent therefor in the free use which they had of the Greenbush farm without rent, for more than ten years after the discharge of E. Van Epps under the insolvent act, in 1816, and before the death of his fathcr-in-law. If that farm actually belonged to the mother of Mrs. Van Epps, the father, as tenant by the curtesy, was entitled to the use of it during his life; and he therefore had a legal right to charge the complainants for the use thereof. And it is hardly to be presumed that he would have suffered them to occupy the farm with[72]*72oiit rent for so many years, if he had supposed this dormant claim would have been revived after his death, for the purpose of defeating the disposition of his property, which had been made by his will. There are other objections to the recovery in this suit, however, which renders it unnecessary for me to decide upon the merits of that part of the cóntroversy, at this time.
There can be no doubt of the intention of the testator to charge each of his children, who were legatees or devisees under his will, with the payment of one fourth of all debts which were justly due and owing by him at the time of his death. ' After directing the payment of his debts by his executors, in the usual form, and disposing of all his real and personal estate among his children and others, the testator proceeds as follows: “ Notwithstanding the directions herein contained for the payment of my debts, I hereby order and direct my son Harpert and my daughters Nancy, Margaret and Getty, each to bear and pay one fourth of all past claims and debts that shall be claimed or obtained from my executors, or paid by my executors; and that each shall bear and pay one fourth of my funeral expenses, and the putting of a good and decent fence around the burying ground on the farm on which I reside, and of procuring a good tomb stone for my grave.” Although an ordinary creditor of the testator might not, even in this court, be deprived of Iris usual remedy against the executor for an account and satisfaction of his debt out of the personal estate, without bringing these other legatees and devisees before the court, (upon which point I do not intend to express any opinion at this time,) neither of those legatees or devisees can bring a suit to recover a debt against the estate, without first relinquishing all benefit which he or she is entitled to under the will, ór bringing the other parties, who are bound to contribute towards the payment of that debt before the court as parties. If the whole property devised and bequeathed to Mrs. Van Epps actually belonged to her,- in equity, as the heir at law of her mother, it is probable that, upon a bill properly framed, she might have a decree against the three other devisees and legatees under the will, for the payment of a debt justly due from the testator, without relinr [73]*73quishing the mere legal title to her own property, which was transferred to her by the will. But even in that case, she would be compelled to relinquish the specific legacy of certain personal property given to her by the will, or to abandon her claim as to one fourth of the debt. And to such a bill the two half sisters who are bound to contribute towards the payment of the debts, should be parties. In the bill filed in this case, there is no allegation whatever as to the equitable right of the complainants to the Greenbush farms, independent of the devise thereof by the will of the testator. That question, therefore, was not in issue in this cause, and no decree could properly be founded upon the admissions or- proofs in relation to this subject.
Another serious and substantial objection to the complainants’ right to a decree in this cause, arises out of the assignment of the husband, under the insolvent act, in 1816. That assignment is no bar to the wife’s equity to a support for herself and her infant children out of the property which belonged to her husband in her right merely, provided her other property is insufficient for that purpose. But as between the husband and this defendant, as the representative of his father, neither can be admitted to allege or prove that the testator committed perjury in the insolvent proceedings. It appears from those proceedings that the testator became a petitioning creditor of Van Epps for the sum of §1529,87, which was nearly two thirds of all the debts then owing by the insolvent. Both must therefore have sworn, on that occasion, that such sum was justly due from Van Epps to the testator. And all the husband’s interest in the claim for which this suit is brought is specifically pledged, in the hands of the assignees, for the payment of this and other debts due to the creditors of the insolvent at that time.
An assignment by the husband, under the insolvent act, vests in the assignee the personal estate in action of the wife, unless the same is secured to her as her separate property. But the assignee takes the legal interest in the same subject to the wife’s right by survivorship, if the husband dies before the assignee has reduced such property to possession. [74]*74(Harper v. Ravenhill, 1 Tamlyn's Rep. 144. Pierce v. Thornely, 2 Sim. Rep. 167. Honner v. Morton, 3 Russ. Rep. 65, 90.) The assignee also takes the assignment of the wife’s estate in action, subject to- her equitable claim thereon for the support of herself- and. her infant children, if she has no other sufficient means for that purpose; provided such claim is asserted by the wife,'or there is a'suit instituted, in this court for the recovery of such property, before the assignee has reduced it to possession. (Smith v. Kane, 2 Paige's Rep. 303.
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The Chancellor.
From the testimony in this case, there is very little doubt that Harpert Van Deusen, the elder, ^between 40 and 50 years since, received a certain sum of mon[71]*71ey, the precise amount of which cannot now be ascertained, and that this money then belonged to his infant daughter. It also appears that he took home the black girl, after the expiration of her indenture, in 1797, and had the benefit of her services until her death. Although, as the mere guardian by nature, he had no right to receive the money due on the bond, or to receive the services of the slave, yet this court will hold hiin liable to the same extent as if he had been the legally constituted guardian, so far as he has had the benefit of the infant’s property. A mere stranger, or wrongdoer, who takes possession of the property of an infant, and receives the rents and profits thereof, may, in equity, be considered as the guardian of the infant, and may be compelled to account as such. (1 West’s Rep. 265. 2 Peer Wm’s, 645. 1 Vern. 296. 2 Car. Law Repos. 412.) The father however could not be charged with the value of the slave, but only with the net profits of her labor received by him, over and above the expenses of her clothing and support. The death of the slave at the early age of 24 or 25, as stated in the bill, was a loss for which the father could not be answerable. If the question as to the receipt of the amount due on the bond, and the services of the black girl, was the only one in this case, it might be necessary to inquire whether the loose declarations of the father, which are testified to by the children of the complainants, were sufficient to revive the cause of action for these stale claims which had lain dormant for more than twenty-five years after the husband’s legal right to recover such claims had accrued. In relation to the equity of these claims, it may be sufficient to remark that the complainants undoubtedly received an ample equivalent therefor in the free use which they had of the Greenbush farm without rent, for more than ten years after the discharge of E. Van Epps under the insolvent act, in 1816, and before the death of his fathcr-in-law. If that farm actually belonged to the mother of Mrs. Van Epps, the father, as tenant by the curtesy, was entitled to the use of it during his life; and he therefore had a legal right to charge the complainants for the use thereof. And it is hardly to be presumed that he would have suffered them to occupy the farm with[72]*72oiit rent for so many years, if he had supposed this dormant claim would have been revived after his death, for the purpose of defeating the disposition of his property, which had been made by his will. There are other objections to the recovery in this suit, however, which renders it unnecessary for me to decide upon the merits of that part of the cóntroversy, at this time.
There can be no doubt of the intention of the testator to charge each of his children, who were legatees or devisees under his will, with the payment of one fourth of all debts which were justly due and owing by him at the time of his death. ' After directing the payment of his debts by his executors, in the usual form, and disposing of all his real and personal estate among his children and others, the testator proceeds as follows: “ Notwithstanding the directions herein contained for the payment of my debts, I hereby order and direct my son Harpert and my daughters Nancy, Margaret and Getty, each to bear and pay one fourth of all past claims and debts that shall be claimed or obtained from my executors, or paid by my executors; and that each shall bear and pay one fourth of my funeral expenses, and the putting of a good and decent fence around the burying ground on the farm on which I reside, and of procuring a good tomb stone for my grave.” Although an ordinary creditor of the testator might not, even in this court, be deprived of Iris usual remedy against the executor for an account and satisfaction of his debt out of the personal estate, without bringing these other legatees and devisees before the court, (upon which point I do not intend to express any opinion at this time,) neither of those legatees or devisees can bring a suit to recover a debt against the estate, without first relinquishing all benefit which he or she is entitled to under the will, ór bringing the other parties, who are bound to contribute towards the payment of that debt before the court as parties. If the whole property devised and bequeathed to Mrs. Van Epps actually belonged to her,- in equity, as the heir at law of her mother, it is probable that, upon a bill properly framed, she might have a decree against the three other devisees and legatees under the will, for the payment of a debt justly due from the testator, without relinr [73]*73quishing the mere legal title to her own property, which was transferred to her by the will. But even in that case, she would be compelled to relinquish the specific legacy of certain personal property given to her by the will, or to abandon her claim as to one fourth of the debt. And to such a bill the two half sisters who are bound to contribute towards the payment of the debts, should be parties. In the bill filed in this case, there is no allegation whatever as to the equitable right of the complainants to the Greenbush farms, independent of the devise thereof by the will of the testator. That question, therefore, was not in issue in this cause, and no decree could properly be founded upon the admissions or- proofs in relation to this subject.
Another serious and substantial objection to the complainants’ right to a decree in this cause, arises out of the assignment of the husband, under the insolvent act, in 1816. That assignment is no bar to the wife’s equity to a support for herself and her infant children out of the property which belonged to her husband in her right merely, provided her other property is insufficient for that purpose. But as between the husband and this defendant, as the representative of his father, neither can be admitted to allege or prove that the testator committed perjury in the insolvent proceedings. It appears from those proceedings that the testator became a petitioning creditor of Van Epps for the sum of §1529,87, which was nearly two thirds of all the debts then owing by the insolvent. Both must therefore have sworn, on that occasion, that such sum was justly due from Van Epps to the testator. And all the husband’s interest in the claim for which this suit is brought is specifically pledged, in the hands of the assignees, for the payment of this and other debts due to the creditors of the insolvent at that time.
An assignment by the husband, under the insolvent act, vests in the assignee the personal estate in action of the wife, unless the same is secured to her as her separate property. But the assignee takes the legal interest in the same subject to the wife’s right by survivorship, if the husband dies before the assignee has reduced such property to possession. [74]*74(Harper v. Ravenhill, 1 Tamlyn's Rep. 144. Pierce v. Thornely, 2 Sim. Rep. 167. Honner v. Morton, 3 Russ. Rep. 65, 90.) The assignee also takes the assignment of the wife’s estate in action, subject to- her equitable claim thereon for the support of herself- and. her infant children, if she has no other sufficient means for that purpose; provided such claim is asserted by the wife,'or there is a'suit instituted, in this court for the recovery of such property, before the assignee has reduced it to possession. (Smith v. Kane, 2 Paige's Rep. 303. Steinmetz v. Halthin, 1 Glyn & Jam. Rep. 64. 2 Kent's Com. 139.) It has indeed been doubted whether this court could interfere to restrain the husband, or his assignee, from proceeding at law to possess himself of the wife’s property in action, and to compel him to allow her a suitable provision out of the same for her support. But if the wife is entitled to such an equity upon a bill filed by the husband or his assignee, or by a third person, as all the cases upon this subject admit, I can see no valid objection in principle against granting her similar relief where the husband, or the general assignee in bankruptcy, is endeavoring to deprive her of that equity by an unconscientious proceeding in a court of law. The case referred to-by Lord Hardwicke, (1 West's Rep. 581,) in which an injunction was granted to restrain the husband of an infant feme covert from proceeding in the ecclesiastical court to recover a legacy due to his wife, is analogous in principle to the case of an injunction to restrain the husband or his assignee from proceeding at law for the same purpose. It is settled indeed in the case of Kenney v. Udall, (5 John. Chan. Rep. 464, 3 Cowen's Rep. 590, S. C.,) that if the wife’s property in action is of equitable cognizance, she may file her bill in this court against her husband, or his assignee, to restrain them from obtaining possession of the fund without providing for her support. The- same principle has been recognized by the court of appeals in Kentucky. (See Elliott v. Waring, 5 Monroe's R. 341.) The claim in this case comes within the principle, of. those decisions ; as this court treats a party who has received the property of an infant as the guardian, and compels him to account as such. I am therefore satisfied that upon a proper bill the right of the wife would be protected as against the [75]*75creditors of the husband, and against his assignee under the insolvent act. The equity of the wife, however, does not extend to the assigned properly, where she has a reasonable fund for the support of herself and her infant children independent thereof. In this case it appears by the pleadings and proofs that she has a valuable farm of three hundred acres of land; and there is nothing to show that it is not amply sufficient for her support If such is the fact, she has no equitable claim whatever to this demand, against the estate of her deceased father, the legal title to which passed to the assignee of her husband, for the benefit of the creditors, thirteen years before the filing of the bill in this cause. But the proper parties are not before the court for the decision of this question. A decree in this case would not protect the defendant against the claim of the assignee. And as this objection was distinctly made in the answer of the defendant, the complainants should have amended their bill and brought the assignee before the court, if they wished to enforce the wife’s equity to a provision out of the assigned property.
There seems to be some little doubt as to the practice of this court in dismissing the bill for want of proper parties, or in permitting the complainant to amend, or to file a supplemental bill, for the purpose of bringing the proper parties before the court. I apprehend the whole difficulty on this subject has arisen from a want of attention to the distinction between those cases where the objection is taken by the defendant at the proper time and in the proper form, by plea, answer or demurrer, and those where he neglects to make the objection until the hearing of the cause. If the objection is taken by plea or demurrer, it is a matter of course to dismiss the complainant’s bill upon the allowance of the plea or demurrer, unless the complainant takes issue on the plea, or obtains leave to amend upon the usual terms. But the defendant is not bound to plead or demur. He may make the objection in his answer, and may have the same benefit of the objection at the hearing as if it had been taken by plea or demurrer. Where the objection is made in the answer, the proper course for the complainant is to amend his bill, so as to bring the proper parties before the court before any further [76]*76expense has been made in the cause. If he neglects to do this, it will rest in the discretion of the court, at the hearing, to permit the cause to stand over, upon the payments of all such costs as he may have unnecessarily subjected the adverse party to by his neglect, for the purpose of enabling him to bring the proper parties before the court, or to dismiss the bill with costs. (See Baldwin v. Lawrence, 2 Sim. & Stu. Rep. 18. Greenleaf v. Queen, 1 Peters’ Rep. 149.) ,And if the bill is dismissed at the hearing for want of proper parties, it should not be dismissed absolutely; as that might bar a future suit against the same defendants, in which all other necessary parties were brought before the court. (See Craig v. Barbour, 2 J. J. Marsh. Rep. 220. Thompson v. Clay, 3 Monroe’s Rep. 361.) The proper course in such a case, if the cause is not permitted to stand over, is to dismiss the bill without prejudice to the claim or right of the complainant in any future litigation. If the defendant makes no objection for want of proper parties, either by plea, answer or demurrer, and raises that objection for the first time at the hearing, the bill should not be dismissed, where the defect can be remedied by an amendment or a supplemental bill; provided the complainant elects to bring the proper parties before the court within a reasonable time. (3 Monroe’s Rep. 125. 7 Id. 57, 217, 477. Guen v. Poole, 5 Bro. P. C. 504, Toml. ed. Court v. Jeffrey, 1 Sim. & Stu. Rep. 105.) I am aware of but one exception to this rule; and that is where it is evident that the necessary parties were left out of the bill, by the fraudulent or wilful omission of the complainant, or in bad faith. (See Stafford v. The City of London, 1 Peer Wms. Rep. 428. Rowland v. Garman, 1 J. J. Marsh. Rep. 76.)
In this case, the discharge of E. Van Epps under the insolvent act, in 1816, and the assignment of his property, were distinctly stated in the answer. The complainants were also apprized by such answer that the objection for the want of parties would be made at the hearing, and that the defendant claimed the same benefit as if the objection had been made by a plea. As it was perfectly evident that no decree could be made against the defendant in favor of the wife’s equity without having the assignee before the court, and as the facts stat[77]*77ed in the answer must have been within the personal knowledge of both the complainants, there is no excuse for their neglect to bring the assignee before the court, by an amendment of the bill, in proper season. There are also many reasons for believing that further litigation in this matter would only subject the complainants to a useless and unnecessary expense, from which they could not ultimately derive any benefit. I shall therefore direct this bill to be dismissed, with costs; but without prejudice to the equitable rights of the wife, if she thinks proper to institute a new suit, and to bring all the necessary parties before the court.