Hill v. McRae

CHILTON, C. J. When the testator directs the trustee to pay over to his son, from time to time, such part of the income of the trust property (or the whole, if required) as shall be necessary for the comfortable and reasonable support of the said Thomas, and of his wife and children, should he have any, &c„ to be used by said Thomas, we understand him as ■ intending a provision for the wife and children as well as for his son, — a prospective provision, of course, for the former, for then the son was not married. He had a wife, however, when the bill was filed, and the provision embraces her, as one of the contemplated objects of the testator’s bounty. The fact that the will provides that the profits of the trust which are necessary for ‘ the comfortable and reasonable support of Thomas and his wife,’ &c., are “ to be used by the said Thomas,” does not defeat the wife's right to a support, but makes the husband a sub-trustee for the wife, to the extent of her share of the profits. Any other construction would evidently do violence to the intention of the testator. The cases of Spear v. Walkley, 10 Ala. 328, and Jasper and Maclin v. Howard, trustee, 12 ib. 652, show that the provision enures for the benefit of the wife, and being a provision in trust for her support, the same does not vest in the husband, It is very clear, there [182] fore, that the portion of the profits necessary for the support of the wife, cannot be subjected in equity to the payment of the husband's debts. But can the court of equity properly subject any part of the income of the property to the payment of the husband’s debts ? It will be borne in mind that the trust is executory. The trustee is to retain and manage the property, and is invested with power to change its character, by the consent of Thomas M. Hill, and purchase other property ; and in case Thomas should not dispose of it by will, ulterior limitations are engrafted on it. It was evidently in the contemplation of the testator that the fund should be increased by the management of the trustee; and he was only permitted by the terms of the will “ to pay over to said Thomas such part of the income of the said estate (or the whole thereof, if required) as might be necessaiy for the comfortable and reasonable support of the said Thomas and of his wife and children,” &c. It was further provided, that the trustee was expressly forbidden to pay any of Thomas’ debts. Now, was it competent for the testator to make such will ? If the law will not permit such bequest to stand, then it is out of the power of a benefactor, or a father, to provide for the support of the family of an improvident friend, or of a child. It is said, to secure a benefit in property, or its use, or the profits.thereof, to one in such manner as not to be liable to the debts of the beneficiary, is a fraud upon his creditors, and opposed to public policy; that large estates may be thus tied up, and the beneficiaries of them may be supported out of them and set creditors at defiance. It is a sufficient answer to this, that the creditor had no claim upon the donor, and that he is placed in no worse condition than if the gift had not been made. Nay, he is in a better condition, in so far as the provision for the debtor’s support and that of his wife will enable the debtor to appropriate all he makes to the satisfaction of the debt. As there was no law, nor any public policy, contravened by the father while living in supporting the family of an indigent or improvident child; so, when he is dead, his bounty may be expended in the accomplishment of that result without a violation of law. True, if the corpus, or rents and profits, be given to the son, or in trust for his use, in such manner as to [183] be capable of identification and separation, it can be reached by bis creditors, either in a court of law or equity; but where the rights of third parties intervened, and the interest of the son is so blended with the interest of such third party, as that it cannot be separated and subjected without injury to such other interest, the creditor cannot reach it. In the case before us, the provision is for the comfortable and reasonable support of Thomas and his wife. It is a joint benefit conferred upon both, as we must intend it was contemplated by the testator that they were to subsist at the same board, and enjoy their support as is common to the relation of husband and wife ; and no more is to be paid by the trustee than is necessary for their support. The payment of money to the son, which is necessary to purchase provisions, or other things required for the comfortable support of himself and wife, must be looked upon as but the means of executing the trust, — in other words, the court regards the money pro-' vided for the purchase of the means of support as impressed with the character of those means, and will no more subject it than the means themselves. To illustrate: — If the trustee had paid the husband fifty dollars to purchase sugar, coffee, and salt, as the means of subsisting himself and wife, the court would no more impound the money in the husband's hands than it would the provisions in the purchase of which it had been expended, if he had laid it out in the execution of the trust, The donor, or testator, has an individual right of property, as has been well said, in the execution of the trust; and to divert it to a person, or purpose, not intended, would be an invasion of his dominion, and a fraud upon his generosity. It would bo to cut off improvident families from all sources of benevolence, and interpose a perpetual barrier to the exercise of paternal duty. Such is not the law. — Holdship v. Patterson, 7 Watts, 551; Ashurst v. Given, 5 Watts & S. 330 ; 10 Sim. 642; ib. 487; 3 Hare, 185; 3 Gratt. 335. This caso is unlike that of Rugely & Harrison v. Robinson, 10 Ala. 702, in which the provision was not for the support of the beneficiaries, and; was ..limited to such part of the profits as should bo necessary for such purpose. We feel satisfied that the decree is erroneous ; it is therefore reversed, and the cause will be remanded.