By the Court.
Nisbet, J.delivering the opinion.
[1.] This action is founded on the trust deed. It is brought to enforce the trust. Whatever rights the complainants have, they grow out of the deed. They set forth the deed, and claim to be beneficially interested in the property which it conveys. Affirming, they claim under it. The legal title is in the defendant — he having accepted the trust. The complainants come into Equity, to divest his legal title, and to assert their claim as cestui que trusts. The defendant, in his answer, does not deny the deed, or his character of trustee, or that the complainants are interested in the trust property; but admitting all these things, defends upon the ground that, by the deed, the advance to the complainants by the grantor, is to be, by them, accounted for before- they can receive anything farther; and that the ad-. vancement to them is greater than their share. They do not allege mismanagement. Both parties recognize the trust, and our opinion is, that the bill is founded on the deed, and that if it were a case wherein the Statute of Limitations would be applicable, the bar prescribed for sealed instruments would be the bar alone available for the defendant. In this we disagree with the Court below.
[2.] But it is claimed by the plaintiff in error, that Mrs. Flynt, who was a feme covert when this deed was executed, and who is; with her husband.) a party complainant in the bill; is within *333the exception of the Statute of Limitations in favor of feme coverts. At the time that this deed was executed, she was married. When her rights accrued in the property, she was a feme covert, and has not been discovert. If she has, as a feme covert, rights under this deed, apart from her husband, she must be within the exception. She has such right, for first, if he dies before the property is reduced into possession, the action survives to her, and the property will vest in her to the exclusion of his representatives. Whatever may be the rule as to the wife’s legal cho-, ses in action in a Court of Law, it is clear that the husband cannot proceed in Equity, to reduce into possession a property accruing during coverture, without making her a party; because, upon his death before reduction into possession, it and the action survive to her. Schuyler vs. Hoyle, & Johns. Ch. R. 196. Carr vs. Taylor, 10 Vesey’s Rep. 578. 3 Vesey, 467. 5 Ib. 515. 5 Johns. Ch. R. 470. Sayer & Sayer vs. Flournoy, 3 Kelly, 546, ’47. 2 Bla. Com. 351. Clancy’s Husb, and Wife, 109. 4 Ga. Rep. 321.
Here the legal estate in the trustee could not be divested at Law. The husband had no alternative but to go into Equity, and then, no alternative but to make his wife a party. What, then, is his right ? It is the right of reduction into possession, and no more. All other interest in the property is in the wife. But this naked right of reducing into possession, secondly, is always subject to the wife’s equity, which, in equitable contemplation, is the whole estate, because it is within the competency of Chanceiy to settle upon her, if circumstances require it, the whole estate. The doctrine of' the wife’s equity is well settled in this Court. She is entitled to a part or the whole against her husband, his creditors and assignees, at her own motion, or when the husband or other persons move in a Court of Equity to recover it. See Sayre vs. Flournoy, 3 Kelly, 546, ’47. Bell et al. vs. Bell, 1 Kelly, 639, and authorities referred to in these cases.
The wife is to be viewed as the equitable owner, and being under coverture, her rights are protected by the exception in the *334Statute in favor of feme coverts. Directly in point, see 1 Paige, 616.
Let the judgment be reversed.