Fabre v. Colden

The Chancellor :—There is no averment in the bill, or admission in the answer, that the husband is not amply able to provide for the support and maintenance of his wife; or that she needs any part of the rents and profits of the real estate in the hands of the executors and trustees for that purpose. She has no legal claim to any thing beyond that, until she is of age; and the executor would be unsafe in paying it to her. Catharine has a contingent interest in the fund; the whole will belong to her if Rosalia should die under age without issue, and no decree can be made in favor of the complainants without making Catharine a party. *168Neither *would it be proper to direct an account in this case, except she were a party, together with the other executor who has acted under the will.

Whenever the husband applies to get the control of his wife’s property through the medium of a court of equity, especially if the wife is an infant, the court will look to her interests, and make such a decree as is most for her benefit.

In this case, if the husband is able to provide for and support his wife, her substantial interest requires that the income of the property should be applied to the payment of the unsatisfied judgment, agreeably to the former order of this court; so that she may receive the property when she becomes of age, unincumbered and free from all claims against it.

The bill must be dismissed with costs; but without prejudice to the right of the complainants to call for an account, &c., when the wife is of age.