Smith v. Moore , 37 Ala. 327 ( 1861 )

A. J. WALKER, C. J.

It is clearHhat the’Testator inn. tended to make the specified fend freé-from liability to the debts of Wm. G. Smith ; and it is 'almost equally clear, ’"that the law forbids the accomplishment of the purpose. The fund itself, nofe-merely the interest, is 'devoted to the "“comfort and suppoti;” of the cestui -que trust. This is ” not only the necessary effect ©f the terms, in which the gift of-Nhe fund, in trust for his comfoi’t and support, is made ; but it is clearly implied from the making his death, withodt receiving the fund, the contingency upon which the limitation over depends. The feud is not given to the trustees, to enable them to support the cestui que trust: the money itself is given in trust for Wm. G., for his comfort and support; and he has, undoubtedly, the right to receive for his comfort and support the entire fund, with its accumulations, if necessary. Cim it be thát a fund, from which one has thus a right to draw for his comfort and support until it-'-is exhausted, is exempt from all liability to' his-debts ?

We shall not deny, that decisions made ia Pennsylvania go to the extent of holding property thus situated -free from liability to debts. — 7 W. & S. 19; Ashurst v. Given, 5 W. & S. 323 ; Norris v. Johnston, 5 Barr, 287 ; Holdship v. Patterson, 7 Watts, 547 ; Fisher v. Taylor, 2 Rawle, 33 ; Eyrick v. Hetrick, 1 Har. 4S8. And a case in Kentucky, and another in Massachusetts, go very far in the same direction. — Pope v. Elliott, 8 B. Mon. 56 ; Braman v. Styles, 2 Pick. 460. But the Pennsylvania decisions make a pal-' pable innovation-upon the law as long established in the English court of ohancery, and it is so'avowed by the opinion in Norris v. Johnston, supra. — 1 White & Tudor’s Leading Cases in Eq. 544; Notes of Hare and Wallace to Hulme v. Tenant.

'•The English doctrine “forbids the disposition of property, divested of--its legal incidents” of liability to debts, and susceptibility of alienation-. — 1 Jar. on Wills, 816; Hill on Trustees, 395. And under the operation of that -doctrine, a liability to .debts, to the extent -of the debtor’s interest, lias been enforced, in the cases following, to-wit: ''Where the dividends were directed to be paid into the ^proper hands of a man, or on his own proper order or receipt, and not to be assignable by way of anticipation (Brandon v. Robinson, 18 Ves. 429) ; where an annuity.'was given in trust for the maintenance and--support of the cestui que trust,-not to be liable to his debts, and to be paid, from time to dime, into his proper hands*; and not to any other person (Graves v. Dolphin, 1 Sim. 66) ; where an annuity was'bequeathed in trust, with directions for the payment of -dividends for the sole purpose of the maintenance and support of the legatee and his family, and with a prohibition of alienation and liability to debts (Yarnold v. Moorehouse, 1 Russ. & Myl. 364); where property was held in trust, to be applied in such manner, and" to such persons, for the board, lodging, and subsistence of the donee and his family, as the trustees should think proper (Rippon v. Norton, 2 Beav. 64); where there was an assignment to trustees of a fund in trust during the life of H, or such part thereof as they should think proper, and at their will and pleasure, and.at such times and in such sums as they should deem expedient, to pay the interest to him, or, at their discretion, to expend the interest in procuring for him diet, lodging, wearing apparel, and other necessaries, so that the same should not be subject to his debts or disposition (Snowden v. Dales, 6 Sim. 524) ; and, lastly, where property was conveyed, to trustees, to pay and hpplythe rents and profits to the support of J., his-wife and ‘children, with -a prohibition against any charge, or'assignment, or anticipa*tion by J.

It is difficult to reconcile the -two cases of Twopenny v. Peyton, (10 Sim. 487,) and Godden v. Crowhurst, (ib. 642,) with the other English decisions, or with the proposition, that the cestui que trust-'m this case basan interest liable to his debts. We refer to the discussion' of tliose- two cases by Judges Ormond and Groldthwaite, in Rugely & Harrison v. Robinson, (10 Ala. 702,); where an attempt has been made to place them in harmony with the other decisions. See, also, Hill on Trustees, 395, note x. In Younghusband v. Gisborne, (1 Col. 400,) there was a trust for the personal support, clothing, and maintenance, with- a provision that the fund'should not be subject to the debts of- the cestui que trust'.. The fund was held’subject to pass-to the assignees under the insolvent' debtors’’ act; and the -vice-chancellor, in commenting upon the cases of Twopenny v. Peyton and Godden v. Crowhurst, said, that if they were not distinguishable from the case before him, he “must:respectfully dissent from them.”" So, too, we say, .that if they are not distinguishable from this case, they are atwar with all the other English decisions and with a principóle well established in the English law, and we must respectfully dissent from them. The authorities, which we have collated, most conclusively show; that the established doctrine in the English chancery does not permit any-' other conclusion, than that the fund in the hands of Thomas H. Smith is liable to the debts of Wm. G-. Smith.

The decision in Hill and Wife v. McRae, (27 Ala. 175,) when considered in its entirety, and not in reference-to any single sentence, does not support the position, that in this case the trust fund enjoys any immunity from liability to debts. It is in reference to a bequest of propert}' to be held in trust for the support of a man and his wife and. children,; and the decision is placed upon the ground, that the interest of the debtor was so blended witli that of the wife and children, that the former cordd not be separated and subjected: to-debts without detriment to the latter. And the same doctrine seems to have been recognized in the opinions in Rugely & Harrison v. Robinson, 10 Ala. 702. See, also, Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999 ; Spear v. Walkley, 10 Ala. 328.

The precise question of'this case seems to have been involved in the case of Clark v. Windham, (12 Ala. 798,) and it is not a strained inference, that an adjudication of it adversely to the appellants is implied in that decision. In the case of Robertson & Pettibone v. Johnston, (36 Ala. 197,) we endorsed the doctrine declared by Judge Ormond in Rugely & Harrison v. Robinson — “that a beneficial interest cannot be given to one, so that it cannot be reached by Ms creditors, -unless 'sueh interest is conferred, and is to be enjoyed, jointly with-otliers, and is also incapable of severance.” We but carry out that doctrine, and follow the lead of our former decisions, in declaring that the fund held in trust for William G-. Smith is liable to his debts.

We think Wm. Gf. Smith’s right to the fund was equitable, and was -liable to attachment in equity under section .2956 of the Code. — You v. Flinn, 34 Ala. 409.

Affirmed,