Sparhawk v. Cloon

Gray, C. J. At law, any property, real or personal, that a man owns, may be alienated by him, or may, unless specially exempted by statute, be taken for the payment of his debts; and no form of grant or devise can enable the grantee or devisee to hold the estate without its being subject to alienation, attachment and execution. Co. Lit. 228 a. Blackstone Bank v. Davis, 21 Pick. 42. From the time of Lord Eldon, the same rule has prevailed in the English Court of Chancery to the extent of holding that where the income of a trust estate is given to any person (other than a married woman) for life, the equitable estate for life is alienable by, and liable in equity to the debts of, the cestui que trust, and that this quality is so inseparable from the estate, that no provision, however express, which does not operate as a cesser or limitation of the estate itself, can protect it from his debts. Brandon v. Robinson, 18 Ves. 429; S. C. 1 Rose, 197. Rochford v. Hackman, 9 Hare, 475. 2 Spence Eq. Jur. 89, and cases cited. The English doctrine has been approved in many decisions and dicta in this country. Tillinghast v. Bradford, 5 R. I. 205. Mebane v. Mebane, 4 Ired. Eq. 131. Heath v. Bishop, 4 Rich. Eq. 46. Smith v. Moore, 37 Ala. 327. McIlvaine v. Smith, 42 Misso. 45. Sanford v. Lackland, 2 Dillon, 6. Walworth, C., in Hallett v. Thompson, 5 Paige, 583, 585. Comstock, J., in Bramhall v. Ferris, 14 N. Y. 41, 44. Swayne, J., in Nichols v. Levy, 5 Wall. 433, 441. On the other hand, it has been maintained by judges whose opinions are entitled to the highest respect, that the founder of a trust may secure the enjoyment of it to other persons, the objects of his bounty, by providing that it shall not be alienable by them or be subject to be taken by their creditors; and that his intentions in' this regard, when clearly expressed by him, must be carried out by the court. Braman v. Stiles, 2 Pick. 460, 464. White v. White, 30 Vt. 338, 344. Arnwine v. Carroll, 4 Halst. Ch. 620, 625. Holdship v. Patterson, 7 Watts, 547 [267] Brown v. Williamson, 36 Penn. St. 338. Rife v. Geyer, 59 Penn. St. 393. Nichols v. Eaton, 91 U. S. 716, 727—729, and other cases there cited. Hyde v. Woods, 94 U. S. 523, 526. Much of the argument in this case has been addressed to the question upon which the authorities are in conflict. But we are not required now to determine that question, because we find in this will no expression of intention that the trust estate shall not be alienated by the cestui que trust or not be liable to his debts. The duties imposed on the trustee are to hold the estate in trust for the sole use and support of the husband of the testatrix, to sell or exchange the property and reinvest the proceeds with his consent, to obtain his written receipt or assent for every payment of money or exchange and sale and reinvestment of property, and to convey any part or all of the estate to such persons or associations and at such times as he may in writing designate and propose; and the trustee is empowered “ to relieve himself from trouble and care ” by appointing the husband his agent or attorney. No other person is named in the will as cestui que trust, either during the life of the husband or after his death; no accumulation of income is provided for or contemplated; nor is any disposition made of the remainder after his death in case of his not exercising the power conferred upon him; and no restrictions whatever are imposed by the will, or committed to the discretion of the trustee, as to the amount of principal or income that the husband may receive, or the uses to which he may apply them. The whole effect of the will is to vest the legal title and a simple trust in the trustee, and the right to receive the whole income, as well as the absolute Jus disponendi of the principal, in the cestui que trust. The husband therefore took an equitable fee, which he might alienate, and which equity would apply to the payment of his debts. Lewin on Trusts, (3d ed.) 21, 585, 595. Barford v. Street, 16 Ves. 135. Moore v. Cleghorn, 10 Beav. 423, and 17 L. J. (N. S.) Ch. 400. Earl v. Grim, 1 Johns. Ch. 494. Palmer v. Stevens, 15 Gray, 343. The decisions of this court, cited by the learned counsel for the defendants, are in no wise inconsistent with this conclusion. [268] In Perkins v. Hays, 3 Gray, 405, the question was whether the terms of the will by which the annuity was given allowed it to be alienated by anticipation. In Hall v. Williams, 120 Mass. 344, and in Russell v. Grinnell, 105 Mass. 425, the will manifested the intention of the testator that his trustees should have discretionary power either to apply or to withhold and accumulate the income. See also Chambers v. Smith, 3 App. Cas. 795. Demurrer overruled.