Keyser v. Mitchell , 1871 Pa. LEXIS 137 ( 1871 )

The opinion of the court was delivered,

by Thompson, C. J.

The question in this case is, whether the income of the trust created for the benefit of Charles Nichols, the defendant, by the will of his mother, was attachable in the hands of his trustee for debts contracted by him without the consent of the trustee ?

We have but part of the will of the testator on our paper-books, and we must presume it is the material portion of it in the case, otherwise the whole would have been given by the defendants in error.

The will is dated the 21st of December 1854, with a codicil dated the 18th of December 1866, merely changing the trustees. After designating the trustee and describing the property intended to be put in trust, the will reads : “ To hold upon trust, to collect and receive, the rents and income, accruing from the moiety of the said premises, and after deducting thereout, all taxes and charges, to pay the said rents and income, or so much thereof, as the trustee may think proper and expedient under all the circumstances of the case, to, and for, the support and maintenance of my son Charles, during the term of his natural life, with the intent and purpose, that the said trustee may either pay the said income, or such portion thereof as he may think proper, into the hands of my said son, or disburse the same in such way as to the trustee may seem best for his comfortable maintenance, such payments and disbursements to le at all times at the sole and absolute discretion of the said trustee.” The next item of the will (the seventh), provides for a contingent disposition of the corpus of the property, .also at the discretion of the trustee.

Because this will contains no prohibition of liability of the income to debts of the cestui que trust, it is claimed on the authority of the Girard Life Insurance, Annuity and Trust Co. v. Chambers, 10 Wright 485, that it is subject to the attachment execution. I need not stop to discuss that case, and distinguish it from this, for in it there was an express direction to the trustees to pay over absolutely to the cestui que trust, or to his order, the income of the trust property quarterly, without the exercise of the least discretion on the subject by them. The income was therefore held to be his own absolutely, and he could invoke the aid of a chancellor to compel payment by the trustee to him of the amount quarterly as provided for. So might an assignee or creditor of the cestui que trust have done on the samp principle. But here nothing is given to the cestui que trust, excepting at the discretion of the trustee. It was no doubt intended by the testator that a comfortable maintenance should be provided from the trust estate for her son; but that was to be both in amount and mode, “ at the sole and absolute discretion of the trustee.” This is an express condition of the trust, and until that discretion has been exercised the cestui que trust has nothing: Hill on Trustees 494, 495. In such case, chancery will not interfere to control the trustees’ discretion : Id. 495. To subject the income to execution at the suit of a creditor, would end all discretion of the trustee over the income, and in effect, utterly defeat the intent of the testator in creating it. We cannot but regard this form of trust to be as effectual in guarding a trust and its income against the prodigality of its beneficiary, as would be a .positive exclusion of creditors in the will of the donor. Where the amount results from the discretion of the trustee, and that discretion is personal, no sum, eo nomine, exists to be attached. It only belongs to the cestui que trust when it is paid, or in some other way made over, or set apart to him. We think, therefore, the attachment in this case against the trustee was entirely inoperative to bind any interest of the defendant in the trust estate, and the judgment must be affirmed.

Judgment affirmed.