Robertson v. Johnston , 36 Ala. 197 ( 1860 )

WALKED, J.

The question of law upon which the decision of this case depends, is, whether the appellee, Mrs. Johnston, has an interest in the property conveyed by W. J. Gressett, or its profits, which it is the province of a court of chancery to appropriate to the payment of her debts, after the creditor has exhausted his remedy at law.

The trusts of the conveyance are, that the trustee hold the property for .the use of Mrs. Johnston “ and the heirs of her body now begotten, or hereafter to be begotten,” free from the claim, control, debts and liabilities of the husband of Mrs. Johnston; that the trustee should permit* all, oj’ such portion of the property, tobe and remain in the possession and under the control of Mrs. Johnston, as should be necessary for the welfare and comfort of Mrs. Johnston and her children ; provided, that the trustee should have the authority to take possession of the property, should he deem it necessary and proper, and so to manage and employ it as should be to the true interest and benefit of Mrs. Johnston and her children.

The grantor in the deed, in describing the beneficiaries of the trusts created, uses at first the words “ heirs of the body now begotten, and hereafter to be begotten,” and afterwards the word “children.” The phrases heirs of the body ana children are used as synonymous. The intention is also apparent, that the children of Mrs. Johnston should receive and enjoy a vested interest in the trust in the life-time of their mother. Heirs of the body must, therefore, be deemed a word of purchase, and not of limitation. — Williams v. Graves, 17 Ala. 62; Powell v. Glenn, 21 Ala. 458; Doyle v. Bouler, 7 Ala. 246 ; Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999; Darden v. Burns, 6 Ala. 362 ; 2 Jarman on Wills, m. pp. 13, 14.

The conveyance, then, is in trust for Mrs. Johnston and her existing and after-born children. The effect of letting in after-born children, as participants in the trust, would not be to postpone any appointed distribution of tbe property; and in the absence of such an effect, the authorities agree, that the grant to the after-born children is valid. — 2 Jarman on Wills, 98, 99, 100; Dunn and Wife v. Bank of Mobile, 2 Ala. 152. Thus understood, the conveyance is for the use of Mrs. Johnston and her children existing and after-born, with the right of possession to Mrs. Johnston of so much of the property as might be necessary for the welfare and comfort of herself and her children; provided that the trustee should have the discretionary power to take possession of the property, and so manage and control it as should be to the true interest and benefit of her and her children. At the time of the conveyance, Mrs. Johnston had two children; she has not since had any. By the conveyance, she and those two children have equal interests of one-third in the benefits provided, which are subject to diminution by the birth of other children, who will be entitled to come in as equal participants with them. — Vanzant v. Morris, 25 Ala. 285; Dunn v. Bank, supra.

The terms of this trust will not permit a sale of the specific property belonging to the trust, for the payment of Mrs. Johnston’s debts. Such a sale would interfere with and defeat the provision for the possession by Mrs. Johnston of so much of the property as might be necessary for the welfare and comfort of her children as well as herself, and with the discretionary power of the trustee to so manage and control the property as might be to the true interest and benefit of Mrs. Johnston’s children as well as herself; and it would interfere with the intention that the children of subsequent birth should come into an equal participation in the enjoyment of the benefits provided in the trusts. — Spear v. Walkley, 10 Ala. 328; Jasper v. Howard, 12 Ala. 652; Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999; Love v. Graham, 25 Ala. 187; Bridges v. Phillips, 25 Ala. 136.

It does not follow, however, because the trust property cannot be sold for the payment of debts, that the interest of Mrs. Jóbnston has a perfect immunity from liability to her debts. This case differs in its facts from Hill and Wife v. McRae, (27 Ala. 175,) so essentially as to make the decision of that case inapplicable here. The court, in that case, deemed the trust to be for the payment of only so much of the income of the estate as might be necessary for the comfortable and reasonable support of the beneficiary and Ms wife and children. These persons took no equitable title to the property; they took only a support, to be collectively enjoyed out of the'income ; any excess of the income, not consumed in that way, was left to accumulate in the hands of the trustee. The right Conferred by the trust was simply to an enjoyment, in common'with the wife and children, of a comfortable support. There was no distinguishable property susceptible of identification conferred. It is here very different. The entire use and benefit derivable from the property is bestowed upon the beneficiaries. Whatever income or profit may accrue during the life-time of Mrs. Johnston, is secured to her and her children. Although the income might be a hundred fold more than is necessary for the maintenance of her and her children, it belongs to them.

.The question whether such an interest is liable to debts, is answered by the well considered decision of the majority of this court, in Rugely & Harrison v. Robinson, (10 Ala. 702,) which the court, in Hill and Wife v. McRae, expressly disclaim any intention to overrule. With a reservation that there should be no liability to the payment of debts, the trustee was directed by the will, in Rugely & Harrison v. Robinson, to pay over the'rents and profits of the property for the use and benefit of Eli T. Robinson and bis family. It was held, that Eli T. Robinson had an interest, which might be reached by Ms •creditors. That case is in every essential particular the same with this. We have examined the arguments adduced and authorities cited in’the decision of it, and ai’e convinced that they fully vindicate the opinion expressed by the court. — See, also, Spear v. Walkley, 10 Ala. 328 ; Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999. We fully endorse the sentiment expressed by Judge Ormond 'in that case: “ That a beneficial interest cannot be given to one so that it cannot be reached by his creditors, unless such interest is conferred and is to be enjoyed jointly with others, and is also incapable of severance.” The policy of the law wisely forbids that the ownership of .property should be further shielded by an exemption from liability to debts unless to the limited extent authorized by our statutes. — Bank v. Forney, 2 Ired. Eq. 184; Hallett v. Thompson, 5 Paige, 583; Rippon v. Norton, 2 Beavan, 63; 2 Story’s Eq. Ju. §974a.

The decree of the court below is reversed, and the cause remanded, in order that the chancellor may cause an appropriation of Mrs. Johnston’s share of the hire, rents, profits and income of the trust estate to the payment of the complainants’ debt, until it is discharged.

Rice, O. J., dissenting.

Note by Reporter. — -This case was decided at the June term, 1858. The papers were for some time mislaid.