Werborn v. Austin

77 Ala. 381

Opinion

STONE. C. J.

Rule 15 of Chancery Practice was based on, and intended to carry into effect, the act “ to allow married women, in certain cases, to sue in their own names,” approved March 4,1876. — Sess. Acts, 159. That act was omitted from the Code of 1876, and hence became inoperative; and the rule of practice fell with it. — Sawyers v. Baker, 72 Ala. 49. Mr. Austin ought to have been joined with his wife as a complainant, and the demurrer on that account ought to have been sustained.

There can be no question that the trusts created by Mr. Solomon’s will were personal trusts confided to both of the persons named as executors, and that when Tiner refused to qualify and act, Werborn had not the power to perform the varied and delicate duties the will had created.- — Camp v. Coleman, 36 Ala. 163 ; Perkins v. Lewis, 41 Ala. 649 ; Anderson v. McGowan, 42 Ala. 280 ; Tarver v. Haines, 55 Ala. 503 ; Ex parte Dickson, 64 Ala. 188. The bill, however, avers that Werborn did undertake to perform many of the functions of the trust, and it charges many acts of unauthorized administration. He has thereby, if these averments be true, rendered himself liable to be brought to account as trustee; and acting without authority, chancery will look after the trust fund, and place it in safe hands. — 2 Williams on Ex’rs, by Perkins, 1506 ; 3 Ib. 1894; Mason v. Pate, 34 Ala. 379; Holbrook v. Harrington, 16 Gray, 102; Saunderson v. Stearns, 6 Mass. 37; Sheets’ Estate, 52 Penn. St. 257. And Mrs. Austin, remainder-man of tiie bequest, has the right to file her bill and bring the trustee to account, in such case as the averments of this bill make. Perry on Trusts, 3 ed., § 275.

On the single question of parties complainant,

Beversed and remanded.