Commonwealth v. Thomas , 1916 Pa. Super. LEXIS 62 ( 1916 )

Opinion by

Head, J.,

The able and elaborate briefs presented by counsel at bar would carry the discussion of the case before us much farther afield than we are required to go in order to determine the real question involved. Whilst that question may be and has been viewed from many angles, it presents one fundamental aspect on which we conclude to rest our judgment. Briefly, the facts out of which the contention arises, are these.

Elizabeth P. Hopple died in 1910, having first made her last will, which was duly admitted to probate. In and by that will she gave to the Fidelity Trust Co. the sum of $5,000, in trust for these uses and purposes, viz: (a) to invest the same and keep it invested; (b) to pay the net income arising therefrom, quarterly to her nephew, “for and during the term of his natural life, upon his receipt only, the principal of said estate and the income thereof not to be liable to or for his debts or contracts or to execution or attachment at the suit of any creditor, but to be absolutely free from the same,” &c. There was thus lawfully created by the testatrix not merely what is ordinarily called “a spendthrift trust” but what is accurately termed, in some of the cases, “a strict spendthrift trust.” Not attempting to exercise any power save one which, for generations, the law had conclusively declared to be hers, she selected the object of her bounty and the hand which should continue to dispense it after her death. Her voice, speaking through the testament she made, with the full approval of the law of the land, is still as potential to direct the disposition of her own property, as it was when she was a living, moving human being. ' The selected trustee, the appellee, by accepting her bequest, made in the manner and form we have stated, solemnly pledged itself to manage and dispose of her property, placed in its hands, as she chose to give it and in no other way.

We-cannot think that, in the construction of the Act of May 9, 1913, P. L. 72, a consideration of the character of the obligation of a husband and father to support his wife and children, should be controlling. The judgment against him, on which is founded the “writ of attachment execution” issued by the Court of Quarter Sessions, is a money judgment. It is hard to perceive why, in attempting to collect that judgment, it should be held to rest on a different basis, from judgments in favor of the butcher, the baker or the tailor who had fed and clothed the wife and children of a recalcitrant husband and father, in discharge of the obligation primarily imposed by the law upon him. This is but a suggestion of the practical difficulty that would arise were we to follow the argument advanced along this line. But there is safer ground. In Thackara v. Mintzer, 100 Pa. 151, and Board of Charities v. Lockard, 198 Pa. 572, the Supreme Court expressly declined to give to the same argument here advanced, the effect we are now asked to deduce from it. And finally, as to this contention, the reason on which the decisions cited rest, forbids us to regard it as tenable. In the first case cited, Mr. Justice Merctjr said, “An unbroken line of cases from Fisher v. Taylor, 2 Rawle 33, down to 7 Norris 276, has settled the law in this Commonwealth, that a father may, by creating a trust in proper form, provide for a son without exposing his bounty to the debts or improvidence of the beneficiary......It is contended that the character of the debt in this case, on which the attachment issued, is not within the meaning of the testator’s exemption.” So it is argued here. “Whether the judgment be for a breach of contract or for a tort, matters not. The testator recognized no such distinction.” In Board of Charities v. Lockard, supra, Mr. Justice Potter, thus disposed of the line of .argument we are now considering. “The general rule of law in Pennsylvania sustaining spendthrift trusts is admitted; • but it is strongly urged, upon the ground of public policy, that an exception should be made in the case of a beneficiary having a wife and- children dependent on him for support......The fund did not originate with the beneficiary, but the bequest was made by another who had the right to bestow his benefactions as he pleased,” &c. In a word the underlying thought is the possession of the trustee is the possession of the testator, not of the beneficiary. Until, at thé time and in the manner provided in the will, the trustee has turned over to the beneficiary such sum as the testatrix has directed it to do, the property right in the fund, corpus and income, remains in the estate of the testatrix or her donee the trustee, and the ultimate beneficiary has no right in or control over it. To hold otherwise would be, in effect, to rewrite the will of the testatrix.

Where is the warrant for the conclusion thát the legislature, in enacting the Act of 1913, intended to coerce a trustee, under a strict spendthrift trust created long before the passage of the act, to dispose of the income of a bequest in a manner forbidden by the instrument creating the trust and providing the necessary funds to execute it?

Generally speaking, statutes are presumed to speak from the date of their enactment. In the absence of a clear expression of a contrary intent the legislative will is to operate prospectively not retroactively. We observe nothing in the Act of 1913 to compel us to adopt the conclusion it was the intention of the act to interfere with the operation of the trust, in the present case or in a like case, created lawfully, as we have said, long before the new enactment.

We are not therefore called upon to consider or determine the limitations, if any, of the legislative power in relation to strict spendthrift trusts created since the passage of the Act of 1913. The question involved in the record before us does not compel such a decision and therefore does not properly invite a discussion of it. The orderly evolution of the law, the symmetry and strength of its well-knit structure will be best promoted by not attempting to dispose to-day of questions that will not arise until to-morrow.

We are all of opinion the learned court below was right in discharging the rule for judgment against the garnishee on its answers.

The order discharging the rule is affirmed.