Bradley ex rel. Kellogg v. Emerson , 7 Vt. 369 ( 1835 )

The opinion of the court was delivered by

Collamer, Chancellor.

— It is a general rule, that all who have a present vested interest in the subject matter of the bill, all who are interested in the event of the suit, must be made parties to the bill. A married woman cannot bring a bill alone, or by any person but her husband, as her next friend, unless where he has become dviliter mortuus, or where she claims adverse to him, and he is, or should be,- a defendant. This is fully sustained, by the authorities-«¡ted by both parties, and as collected by Edwards on Parties to .Bills, 145.

There is one case cited by the counsel for the oratrix, which would seem to sustain a contrary doctrine in a particular case. It is cited thus: “ If a wife be a cestui que trust, she must file her bill by her next friend.” On the examination of the case, (Prec. in Cha. 275) it will be found the husband was a defendant, and such will always be the case wh,ere the wife is proceeding to secur.© property to her separate use, or separate maintenance.

Let us now proceed to inquire whether in this case the wife is claiming an interest adverse to the husband, — whether his interest is identified with the defendant’s, or, on the other hand, whether the husband has not an interest with the wife, and this bill is in furtherance of his rights and interest.

The bill is to enforce the faithful performance of a trust created by the wife, before coverture, out of her own properly, not to her separate use. By the deed, the defendants agreed faithfully to manage the trust fund of ten thousand dollars, and pay the interest annually to her during life — not to her separate use. It was nothing in the nature of a jointure. She afterwards married. Now' is it contrary to the interest of the husband, that this trust should be faithfully executed and enforced 1 It is most obvious that these annual payments to the wife became directly the property of the husband, and that it is as much his interest they should be enforced, as that any debt should be collected, due her before marriage.

Interest, on the decease of the wife, is to him and her children,' on their survivorship, subject to the contingency of a different appointment by the wife.. We cannot perceive how the protecting or enforcing the faithful execution of this trust is against the-marital or any other rights or interests of the husband, or how his interest has become identified with the defendants’ in having them squander and dissipate the fund.

It therefore appears, 1st, That be has a present vested interest in the subject matter of this bill, and in its -event, and should be a party orator on his own account. -2d. The oratrix is not, by this bill, claiming property in opposition to the rights of her husband, and therefore she cannot sustain this bill by another, as her next ^friend.

Plea in abatement allowed.