delivered the opinion of this court.
The complainant in the bill before us, married the daughter of the defendant, G. T. Hilleary, who was duly appointed her guardian. The object of the bill is to compel the guardian to account for the estate of the complainant’s wife, and for a partition of property, which, it is alleged, the latter (who was dead at the time of filing the bill,) held with her two sisters, and Eleanor Hilleary, who are also made defendants. The property claimed, consisted, in part, of a bequest by Mrs. Mulliken to her daughter, (who was the mother of Mrs. Hurdle and of the defendants, Eleanor and Anne,) and after her death to her children.
Tilghman Hilleary, the father of the defendant, Clement, became security in the bond executed by the latter, as the guardian of his children. A number of negroes were conveyed to this security by said guardian, to save him harmless as a security in that bond, and it appears that the security, T. II., bequeathed those negroes, as to the children of Clement, according to their respective shares and interests in the legacy aforesaid, and as a full equivalent for the money, which they were entitled to receive from their said grandmother; of these negroes, the complainant claims in this suit one-third.
No proof or admission in the case entitles the complainant *109to claim one-third of them. The bill itself does not allege that the mother of the complainant’s wife left, at her death, but three children. It admits, that thei'e were two others, Mary and Henrietta, “who have since departed this life in infancy, unmarried and intestate and without any issue. ” In the answer also it is stated, that there were five children. Of this latter allegation it is said, that there is no satisfactory proof in the record ; but, before the complainant can be allowed one-third, there must be proof, or an admission, that there were but three children to claim the legacy.
The claim is to negroes, and by virtue of the bequest of the grandfather. Those negroes, the testator states, and it is admitted, he held only in virtue of the deed of indemnity before alluded to. He, of course, had no title to them, if he was not damnified by reason of his suretyship. They were not his property, to be disposed of as he pleased.
It is true that the wards might claim the benefit of this collateral security, might ask a sale of the negroes, in order to pay any sum of money which it was ascertained that the testator, as a security in that bond, was answerable for. lst Equity Cases Abridged, (K.) 5. Phillips vs. Thompson, 2nd Johnson's Chan. Reports, 418. 1st John’s C. Reports, 129. These collateral securities are trusts, created for the better security of the debt, and it is the duty of the Court to see that they fulfil their design, 1st John’s Cas. 205.
These negroes, conveyed by Clement, were probably answerable for more than the amount of Mrs. Mulliken’s legacy.
Here there is a deficiency of proof. In regard to the portion of Mrs. Henrietta B. Hilieary, (the second wife of the defendant, Clement,) which is claimed by the complainant, the proof is not so satisfactory as it ought to be. Before a partition can be made, the number of children of the defendant, Clement, by his first wife, which of them, if any, are dead, and when they died, as well as at what periods other persons named in the bill died, who were entitled to the estate of Henrietta B. Hilieary, and the amount of her estate; these facts ought to be ascertained in order to a settlement by the *110court of the accounts, and a partition of the property, sought in this bill.
The notion of the complainants seems to be, that the negroes mortgaged by Clement to Tilghman H. and by the latter bequeathed, as has been stated, are to be received in lieu of the legacy of Mrs. Mulliken. The legacy of Mrs. Mulliken, it would seem, the complainant is willing to give up, claiming only the negroes mentioned in the will of Tilghman, and, in addition thereto, the property derived from Henrietta B. Mulliken. But the legacy of the grandmother, and the interest of the complainant’s wife and other children in the estate of their stepmother, constitute, so far as we are informed, the amount of their estate, and if the latter was received before the guardianship ceased, then the property, mortgaged by the defendant, Clement, to his security, may be made answerable for whatever was due from the guardian to those wards.
A partition is spoken of, and this is used as proof of the abandonment by Clement of his equity of redemption. But it seems that there was another security in the guardian’s bond, who, it does not appear, has ever been consulted or allowed to give his consent to any arrangement in regard to this property, and until his liability on the guardian’s bond is at an end, he has an interest in this collateral security, of which he cannot be deprived, but of which he would be deprived, by a distribution among these children of the negroes conveyed by the deed of indemnity. Besides, if the partition had taken place, the question would then arise, whether so much of the complainant’s case was not rather a case at law, than in equity ? The complainant proposes in the argument to abandon a part of his claim, as made by the bill, and to make another case to be found in the answer.
It is true, that the complainant is not confined by the specific relief asked in his bill of complaint, but he cannot obtain relief which is in opposition to his allegations. The objection here is not to the sufficiency of the averments of the bill. He cannot in his bill claim of the guardian, and at final hearing, *111insist that the answers of the defendants entitle him to abandon the claim against the guardian, and to prefer that same claim against the co-legatees. These answers, perhaps, disclosed enough to justify the complainant in amending his bill of complaint, if he intended to seek the relief to which the matter set forth in those answers entitle him.
Various other points arise in the case, such as whether the depositions of some of the defendants were admissible for their co-defendanis: whether a rehearing ought not to have been granted, and sundry depositions, upon which the motion for a rehearing was grounded, ought not to have been received as a part of the testimony ? whether the complainant’s wife conveyed to two of the defendants her property ? If the deed was executed, was it not obtained by a fraud practised upon her? and if it was not so obtained, was not the deed in fraudem maritagis f Some of these are questions which belong to the case, and upon which, at this time, it is deemed inexpedient to express an opinion, as the proof upon which the decision of them depends, may hereafter present a very different case. The Chancellor’s decree must be reversed with costs, for reasons already stated, and before any account can be directed, it must be ascertained by proof into how many parts the legacy of Mrs. Mulliken and the property of Mrs. H. B. Hilleary, are to be divided. As a commission must be obtained by the complainants to supply the defects in his testimony, an opportunity will then be afforded to the defendants of taking the testimony which they deem to be material in making out a portion of their defence.
DECREE REVERSED, WITH COSTS, AND CAUSE REMANDED,