This case involves a question which is too frequently occurring before the Court. The decisions have been numerous, and almost every case has some peculiar or diversified circumstances, so that hardly any two of them are exactly alike.

The precise facts are stated in a few paragraphs. A widow lady, named Harriet Hart, being about to intermarry with Mr. John Reid, and being possessed of a good real and personal estate in her own right, a marriage contract or settlement was entered into between them, with the usual intervention of trustees, by which her property was conveyed to George Butler and David Rumph, in trust, that they would permit the said John and Harriet to receive and enjoy the profits and proceeds of the above mentioned property, (except three slaves, who are named) during the joint lives of the said John and Harriet: And if the said Harriet should survive the said John, in trust, that they (the said trustees) should assign, transfer, and pay over, all the said property, and the issue of the negroes, to the said Harriet, absolutely and unconditionally. But in case John Reid survived his wife, and there was no issue of the marriage, then the estate to go to said John Reid absolutely. If there should be issue surviving said Reid, then to such issue.

The marriage took effect — and Mr. John Reid died on the day of in the year 1828. There was no issue of the marriage ; so that Mrs. Reid is entitled to the whole estate, transferred to her unconditionally and absolutely.

During the coverture, Mr. John Reid was in possession of the estate, and received and applied the rents and profits as he pleased. He contracted debts with various persons ; among them, with James H. Boggs, one of the complainants, from whom he purchased certain mules, for which he gave his own note of hand, for two hundred and twenty-five dollars, on the 9th day of October, 1826, paya*455ble on the 1st December following. This note has no reference to the trust estate ; but it is charged in the bill, and admitted in the answer, that these mules, for which the note was given, were purchased for the benefit of the plantation, and were placed thereon by John Reid, and have never been removed. John Reid also employed Mr. Oliver, another of the complainants, as an overseer on the plantation, for the year 1825, and gave him his note of hand on 1st January, 1826, for one hundred and sixty dollars, expressed to be for his services as overseer, during the year 1825.

It was conceded by the answer, that Oliver was so employed, and performed the service.

John Reid also contracted another account with Wallace & McFie, commencing in January 1825, and ending in March 1826. The charges were against John Reid in his own name, and without any reference to the trust estate. A draft was taken by Wallace & McFie from John Reid, on Conner <fe Wilson, for the then amount of the account, which was returned protested. This account, amounting to two hundred and fifteen dollars, seventy-three cents, (including some charges on protest and notice,) consisted of articles’ such as are commonly used and consumed in a respectable family, and for use on a cotton plantation, except about twenty dollars for spirits and wine, <fec. These are the claims now before the court, on which it is stated in the proceedings judgments have been obtained at law. But that they have not been, and cannot be satisfied, as John Reid died in the year 1828, insolvent, leaving no property of his own. It is further stated, that several executions having been returned núlla bona, John Reid had been arrested under a ca. sa. and that he had sworn out of goal, and assigned all his property, and his interest in his wife’s property, to Mr. Russell P. McCord, for the benefit of his creditors; and that he received the rents and profits of the trust estate for two years, and applied them as he thought right; but these complainants have not received payment from him or any other source. The complainants, therefore, seek payment of the trust estate.

*456In the argument of this cause, the counsel for the complainants contended that the doctrine of marriage settlements, and trusts for the benefit of families, is mischievous to creditors and to the community, and dangerous to the peace of families ; and that it ought to be discouraged, and the estates made liable, as far as possible. The court has little to do with the policy of the laws. Its duty is to administer them as it finds them established. The doctrine and the practice of marriage settlements, have been in use in this country from its first settlement, and it is not for the court to discourage them. It is for. the legislature to decide on the policy ; and that has been done by statutes prescribing that marriage settlements shall be recorded within limited periods, in order to give them validity; and when so recorded, are good and effectual, according to their respective provisions. These Acts have given them a perfectly legal sanction, in addition to the force and effect which they had from the long established use of them pri- or to the recording statutes. Nor is the policy so questionable, as it is supposed to be. The protection of families, and care of their comfortable subsistance and proper education, is as much a measure of sound policy, as the payment of creditors. In most civilized countries, the estate of the wife is more fully protected by the general law, than they are in England or in America by special contracts and marriage settlements. And there is no injustice in it. Surely the woman about to marry, and to rear a family, useful to the community, has'a just right to say, I have property which I wish protected for the benefit of that family. She owes no debts, (for if she does they must first be paid) and in conveying her own property to trustees, for the benefit of herself and children, she does no more than exercise a right of control over her property, common to all proprietors ; nor have . creditors of her husband a right to complain ; for unless she married him, they could not have the shadow of claim on her property. And if she marries on condition that her property shall be protected, her husband’s creditors have no reason to complain, provided they are put on their guard, and are not led to give credit to the husband on false grounds. This is guarded *457against by our statutes, which require marriage settlements to be recorded within limited short periods.

The first question, then, in this cause, is, was the settlement in question recorded within the time limited by law, which is three months 1 The copy of the settlement furnished me, bears date the 13th November, 1821. It was marked on the back, “ proven 30th January, 1822.” But the certificate of the proper officer, that the copy is a true copy from the records, does not say when it was recorded. This was a serious dilemma in the way; for the entry of “ proven, January, 1822,” on the copy settlement, does not establish that the original deed was then deposited to be recorded, or was actually recorded. The probate is often made before magistrates out of the office — and the deposit or the recording, may not occur till long after— sometimes never'. ' In the absence of the regular proof, I caused the book of records to be searched, and the search has resulted in the disclosure of the most extraordinary carelessness in the office at the time in question ; for it appears that from the 16th November, 1821, to the 22d January, 1822, the time of recording a great number of deeds, comprised in thirty pages, has not been mentioned. Before and after these periods, the time is mentioned when every deed is recorded ; and as the marriage settlement we are considering is recorded in the intermediate space of time between those two dates, it appears to have been recorded within the three months prescribed by law, and is valid and effectual to its purposes.

The next question is, whether the complainants are entitled to relief under the provisions of the deed. We have seen that the trustees were bound to permit John Reid and Harriet, his wife, to receive and enjoy the profits and proceeds of the above mentioned property, (except three slaves,) during their joint lives ; and if Harriet Reid survived her husband, then the trustees were to assign, transfer and pay over to her, all the property and the issue of the slaves, absolutely and unconditionally. The deed, then, placed the income, only, of the estate, at the disposal of the husband and wife, during the coverture. Of this provision, all persons were apprized, in the manner prescribed *458by law, by the recording; so that they might deal with the parties accordingly, if they chose to deal at all. So far as we have gone, then, it is obvious, that the court could not subject the body of the trust estate, to the claims of the creditors.

But another question is made, which must now be considered. It is argued for the complainants, that the several articles furnished, were for the benefit of the trust estate, which ought, therefore, to be subject to the payment. And it is urged that the court has already decided in several cases, that the trust estate should be subjected. This is certainly true. In the case of Cater vs. Eveleigh, the court decreed the estate to be liable for a saw gin, procured by the husband, father of the family, for the trust estate. In another case, respecting the trust estate of Eveleigh, 1 McCord’s Chan. Rep. 267, again the court subjected the estate for supplies of corn, furnished for the subsistence of the slaves. And • in other cases, trust estates have been subjected to the payment' of the wages of overseers employed to manage those estates. In all these cases, the court has gone on the principle that these were essential to the well being of the trust estate. The slave might perish if not supplied with corn or clothing ; the cotton might lay useless without the machinery to prepare it for market; and this is strong ground on which to place the subject. Yet it is dangerous — for it is difficult to assign the precise limits to this responsibility. It may be abused, to the destruction of. the body and substance of the estate itself, by the extravagance or mismanagement of the husband. I acknowledge that I feel great difficulty on the subject, and should be much gratified and relieved, if, on an appeal in this case, some general rules could be laid down for my government in such cases. One thing, however, is clear, that if the husband is allowed to expend all the income on other objects, and to leave such demands as are founded on real supplies, for the manifest benefit and reasonable improvement of the trust estate, entirely unpaid until his death, and then these creditors are allowed to come for payment on the body of the estate itself, all the purposes of protection *459intended to be given to such estates, would be defeated. I see no remedy against this evil, but to examine strictly into the nature of the supplies to the estate, to ascertain whether they were indispensable to the estate itself, and not merely for the usufructuaries personally. And also to require that even such creditors should use all proper diligence to obtain payment out of the income of the estate, from year to year, as such indispensable supplies were furnished.

To apply these views to the present. There is no doubt that the mules supplied to the trust estate were a durable benefit, perhaps- as much so as a saw gin ; for they last as long, and are extensively useful. It seems the mules were sold by Mr. Boggs to Mr. Reid, in the autumn of 1826, and he gave his note on 9th October, 1826, for two hundred and twenty-five dollars, payable on the first day of December following. 'The mules were placed on the plantation of the trust, and worked on it, and now remain thereon, and the present cestui que use, or rather absolute owner, has the benefit of them. I think, this case comes clearly within the principles of the decided cases; and the mules must be paid for, especially as the creditor seems to have pursued his remedy with proper diligence, and endeavored to get payment, without success. It was ingeniously argued, that this would be giving a lien on the mules, which the parties did not contract for; It struck me at first with some force; but on reflection, I am satisfied it has not the weight ascribed to it. The question is, not whether Mr. Boggs has a lien on the mules, for that he certainly has not — but it is, whether the creditor, having supplied the trust estate with an article essential to its improvement, and which still remains beneficial to the present owner, is not entitled to be paid out of the trust estate, on the same footing with other creditors, standing on the same ground.

The next claim was that of the overseer, for wages for superintending the estate. This kind of claim has been repeatedly sustained by the court; and 'as there has been no laches, but reasonable diligence used without success to obtain payment, during the life of Mr. Reid, it appears *460to ine to be just, that the overseer should be paid by the present possessor of the estate, who was entitled to the income jointly with her husband, during the coverture.

The next claim is that of Wallace & McFie, for the payment of an account for articles furnished to Mr. Reid, in the year 1825, and part of 1826. On examining that account, it appears that nearly three-fourths of the amount are for cotton bagging, negro cloth, <fec. for the indispen-sible use of the estate. These appear to me to come within the principles which have been recognized by the court in its decisions heretofore made, on this anomalous and embarrassing subject. The remaining articles for general family consumption, do not come within the principles, and cannot be allowed.

It was properly argued for the defendant, that before she could be called upon for payment, she was entitled to have the crops of the time that the estate was held by an as-signee, applied to the payment of the claims now made on her, unless otherwise legally applied. It will therefore be necessary to order a reference, that the commissioner may enquire and report, if there be any part of the proceeds of those crops remaining, properly applicable' to pay these demands. The assignee will doubtless produce the accounts of the receipts arid expenditures, without putting the parties to the expense and delay of making him a party. Should that fund be insufficient, then the deficiency must be made up by the defendant.

After a good deal of reflection, however, I am satisfied that the complainants have no right to touch the capital of the estate. The deed of settlement gave only the income of the estate to the husband and wife, during the cover-ture. That deed was recorded according to law, as a notice to all the world, of what interests the parties had in the estate. In giving credit, therefore, they could look only to the income ; and to the income they must resort for payment. Nor will the court permit the whole of the present income to be taken from the defendant. She must be allowed a reasónable proportion for her maintenance out of it, and the remainder applied to the payment of the demands of the complainants.

*461On looking into the decisions in this State on this subject, I find that this arrangement which I propose to make, is not a new course. For in the case of Bethune and others vs. Beresford and wife and others, (1 Des. Rep. 174,) the court, after deciding that the income of the settled estate was liable, to a certain extent, to the claims of the creditors then suing, determined that the wife, from whom the estate was derived, should have a subsistence out of the income, and made a provision accordingly.

It is therefore ordered and decreed, that it be referred to the commissioner to examine and report the amount of the debts due to the respective complainants, according to the principles laid down in this decree. Also, that he further enquire and report, what was the amount of the income of the estate whilst it was in the hands of the as-signee of John Reid, and what application has been made thereof; and whether any, and what sum, remains applicable to the debts due the complainants.

And he is further directed, in case it be necessary to resort to the income of the estate in the hands of the defendant, to examine and report what is the average amount of that income, and- what proportion thereof would be a proper allowance for the support of the defendant, until the debts due the complainants should be paid out of the remaining part of the income.

From this decree both parties appealed. The complainants, on the ground that the estate should be made liable, and sold for the purpose of satisfying their claims. The defendants, on the ground that the estate became absolute in Mrs. Reid, upon the death of her husband, and was not liable for debts incurred for the benefit of the particular estate.

Curia, per

I concur in opinion with the Chancellor, that there is nothing in this case to excite our prejudices against the claim of the defendant. I am not aware of any system of ethics that forbids a woman from securing her own property for her own use, even against the creditors of a profligate or imprudent husband. It is enough that she is ordained to take him for better and for worse, and ought at least to be permitted to secure her property against the last alternative. But, as is well remarked by the Chancellor, we are not required to decide *463upon the policy of the law, but to administer it according to its provisions. I also concur in opinion with the Chancellor, that this is an embarrassing question. But lam inclined to think that the embarrassment arises more from some loose decisions of our Courts, which we are now perhaps bound to respect, than from any intrinsic difficulty in the subject itself.

The duty of a trustee is to hold arid employ the property for the benefit of the cestuique trust. Persons, therefore, who deal with him, must - do it upon his individual credit, and not upon the credit of the trust estate. Having the management of the estate, necessarily implies a power to provide for its maintenance and support. He is autho-rised, therefore, to pay the doctor’s bills, and taxes, to purchase plantation tools, and the necessary supplies for the slaves, dfcc. and to reimburse himself out of the proceeds of the crop. But that is-a matter with him and the cestuique trusts, with which the creditors have nothing to do. They are the creditors of the trustee and not of the estate. And even the trustee himself is not authorised to pledge the capital, but must keep the expenditures with the income of the estate. If the estate is unproductive, and in danger of consuming itself, he must apply to the court for advice, and may, under its direction, convert it into other property, or make such other arrangements as may remedy the evil; and there may be cases where the court will permit a part to be sold for the preservation of the rest; and indeed, cases of urgent necessity may exist, when there may not be time to apply to the court, in which a trustee may and must act upon his own responsibility, in which he will be indemnified out of the trust estate ; such for instance as the burning of a house, the destruction of a crop by a deluge, and the like. And it is only in cases of that description, of the necessity of which the court will judge, that he will be permitted to incumber the estate.

The duties of a trustee, therefore, are few and simple, and may be embraced in the few observations which have been made.

Our courts, however, have gone one step farther, and in a few instances have subjected the trust estate to the pay*464ment of the debts of a creditor contracted with the trustee or his agent upon the faith of or for the use of the trust estate. But the principles upon which those cases are founded, and the extent to which they were intended to be carried, do not very distinctly appear. And it belongs to this court now to establish some principle and to give definition to the rules by which similar cases are in future to be governed. The first case, I believe, is that of Cater and Eveleigh, 4 Des. Rep. 19. In that case, Mr. Eveleigh, the agent of the trustees, had procured cotton gins for the use of the estate, and given his note for the purchase money. Mr. Cater, the creditor, sued upon the note, and recovered a judgment, upon which he sued out a ca. sa. and took the body of the defendant. He took the benefit of the insolvent debtors’ act, and not having any thing to surrender, the debt remained unpaid. The defendant then applied to the Court of Equity, to be paid out of the trust estate, which was decreed by that Court. But I presume the court meant out of the proceeds of the estate only, that is to say, that the trustee should first pay this debt out of the income, before he should pay over the balance to the cestuique trust; or in other words, that that debt should constitute the first charge on the funds in his hands, but not that he should break in upon the capital for that purpose. If that had been the intention, an order for a sale of the property for that object must have been obtained. The same observations will apply to the case of James vs. Mayrant, do. 551. Though that decree seems to be founded in part upon the peculiar circumstances of the case, which furnish no inference applicable to any other. The case of Montgomery and Eveleigh, 1 M’Cord’s Ch. 267, is also one depending in a great measure on its own circumstances ; and like the others, it is only the income and not the capital of the estate which is made liable. And that liability is founded as much on the ground of fraud in the cestuique trust, as on the other ground that the debt was contracted for the necessary supplies of the plantation. The court might, perhaps, in either of those cases, have directed a part of the estate to be sold to pay the debt, but it would not have done so without an inquiry into the necessity of the *465measure, and whether the estate would be benefitted thereby. So that neither of those cases furnish any further or other inference than that the court may allow the creditor the same privilege of being remunerated out of the income of the estate, as would be allowed to the trustee for necessary disbursements. Now, to apply the principles of those cases, as I understand them, to the case under consideration ; I think the trustees would have been authorised to apply the income of the estate to the necessary repairs and supplies of the plantation, such as work horses, plantation tools and provisions, as well as to the support of the family, and that the court might, under the authority of the foregoing cases, direct the application of the funds to those objects. The trustees could not give to Mr. Reid other or greater powers than they themselves possessed. It was his duty, therefore, to keep up the repairs, to provide all the necessary implements of husbandry and supplies for the plantation, so that the estate should not be wasted, or its value impaired. Whatever else was made, after fulfilling the objects of the trust, would have been his own, to be disposed of as he thought proper. But he had no authority to incumber the estate beyond the income, nor to subject it to the payment of his debts.

With regard to the debts now sought to be recovered, I think they come within the authority of the cases referred to, and if Mr. Reid were now alive, perhaps the court might, under the authority of those cases, subject the proceeds of the crops in his hands to the payment of them. But the trust estate has terminated by his death, and I do not think they can be made a charge on the estate itself. I can see no distinction between a charge on the estate itself, and one on the income in the hands of Mrs. Reid. If there was remaining in the hands of Mr. Reid at the time of his death, of the income of the estate more than sufficient to meet the current expenses of the family and plantation, it may be made subject to the payment of those debts, as constituting a part of the trust estate. But further than that, I do not think we are authorised to go. The case of Bethune and Cook vs. Beresford and wife, does not support the Chancellor in subjecting the income of the widow’s *466estate, to the payment of these debts. In that case, Beres-ford was still living, and entitled exclusively to the income of the estate. The court made his interest alone liable to the payment of the debts, and that only after a reasonable allowance for the support of the family. 1 Des. Rep. 174.

The decree in this case goes to subject the estate of the wife to the payment of the debts of the husband, and constitutes her a trustee of her own estate, for the benefit of his creditors. The extent of such a principle cannot be foreseen. If once admitted, it may be extended to the entire destruction of a marriage settlement.

The complainants’ debts were undoubtedly contracted on the credit of Mr. Reid, and his notes were taken for the purchase money. It can hardly be supposed that there are any funds in the hands of the trustees for the payment of them, for all the interest of Mr. Reid in the estate has been assigned, as appears by the decree, for the payment of his debts. If, however, the complainants think it worth the trouble and expense, an inquiry may be made into the subject.

It is therefore ordered and decreed, that the decree of the Chancellor be so reformed as to correspond with the principles herein laid down, and that it be referred to the Commissioner to inquire whether there remained in the hands of the said John Reid at the time of his death, any and how much of the income of the estate subject to the payment of complainants’ demands, and that he report thereon to the hext Court óf Equity for Orangeburg district. And that the fund be first applied to the payment f the costs of this suit, and if insufficient for that purpose that the complainants pay the costs.