Fortner v. Phillips

Wood, J. (after stating the facts). The language of the clause of the will quoted supra- does not vest any estate in the appellee James Phillips. No property right is conferred upon him by this clause in the estate of his deceased wife. The clause merely directs that the executor and trustee, William James Phillips, shall pay to appellee the above sum. The entire estate, real and personal, is devised and bequeathed to William James Phillips and the other devisees and legatees named in the will, but no estate whatever is vested or created in .appellee James Phillips. No estate in his property is even vested in William James Phillips. It will be observed that the testatrix does not bequeath to her husband, James Phillips, the sum of $50 out of her estate and direct her executor and trustee to pay the same, nor does the will in express terms devise and bequeath any real estate or personal property to the executor and trustee in trust charged with the payment of the sum of $50 per month to appellee James Phillips out of such estate or funds. The language of the clause is peculiar in that it does not express the purpose that the testatrix had in mind in directing the monthly payments of $50 to her husband so long as he shall live. It is shown however by the agreed statement of facts that the purpose of the testatrix was to provide $50 per month for the support of her husband, and that this sum was necessary; that he had no other income and that it would take the entire sum for his support. The language of the will must be construed in the light of this agreed statement. The fact that the testatrix designates her son, William James Phillips, as executor and trustee and directs him to pay the sum of $50 per month to her beloved husband, James Phillips, as long as he lived showed her intention to create a trust in favor of her husband out of the property devised and bequeathed to her son. In other words, the property going to him under the will was burdened with the. trust of paying to the extent of $50 per month for the specific purpose of the support of the appellee James Phillips. Says Mr. Perry: “But a trust may be so created that no interest vests in the cestui que trust; consequently, such interest cannot be alienated, as where property is given to trustees to be applied in their discretion to the use of a third person, no interest goes to the third person, until the trustees have exercised this discretion. So if property is given to trustees to be applied by them to the support of the cestui que trust and his family, or to be paid over to the cestui que trust for the support of himself and the education and maintenance of his children. In short, if a trust is created for a specific purpose, and is* so limited that it is not repugnant to the rule against perpetuities and is in other respects legal, neither the trustees, nor the cestui que trust, nor his creditors or assigns, can divest the property from the appointed purposes.” 1 Perry on Trusts, sec. 386 (a), pp. 632, 633, and cases cited. In Robertson v. Schard, 119 N. W. 529-531, it is said: ‘‘ The wife is under no obligation to give or devise to an insolvent husband her own estate when she knows that it will be immediately absorbed by his creditors, and if she can construct a trust from which he may derive some benefit, without vesting him with an estate or interest which is subject to levy, or other legal process, at the suit of such creditors, and thereby makes sure that he will not become an object of public charity, there is no good reason in law or morals why she -should not be allowed to do so.” Citing oases. The above is the doctrine applicable to the undisputed facts of this record. Since it would require all of the monthly stipend to support appellee James Phillips, the money in contemplation of the will, has been expended before it is paid over to him and there are no accumulations in his hands which creditors can reach. See 18 L. R. A. (Miss.) 49. Nothing that is said in Booe v. Vinson, 104 Ark. 439, is contrary to the doctrine here announced. In that case the clause of the will was “all my estate, real, personal and mixed, I give and bequeath to my aunt,” etc. Thus the will vested the title to the estate in the beneficiary. But in that case we quoted from Wenzel v. Powder, 100 Md. 39, 59 Atl. 195, 108 Am. St. Rep. 380, the American rule, as follows: “But in this country the Supreme Court of the United States, the court of last resort in some states, iand this court, have, after full consideration determined that the power of alienation is not a necessary incident to an equitable estate for life,, and that the owner of the property may so dispose of it as to secure the enjoyment by the beneficiary without making it alienable by him or liable for his debts. The agreed statement of facts shows that such was the intention of the testatrix by the clause of the will under review. The decree'is correct and it is affirmed.