Henry L. Kendall & Co. v. Cornelius v. S. Gibbs & Co. , 5 R.I. 525 ( 1858 )

BoswoRth, J. 1

The writ in this case was served by attaching the right, title, and interest of the defendants in several pieces of real estate situate in Newport. The defendants plead, in abatement, that at the time of the pretended service, they had no right, title, or interest in the premises attached. The plaintiffs reply, setting up a title under the will of Mary Gibbs, (which will is embodied in the plea,) by which they aver that a title to the land attached is vested in the defendants. The defendants demur, and the plaintiffs join in the demurrer.

The question raised is, whether, under the will of Mary Gibbs,- the defendants took an interest in the estate which was liable to attachment in this suit. In the eighth clause of the said will, the testatrix gives a large amount of real estate, including the estate here in question, to her brother, Walter Channing, his heirs and assigns, upon the special trusts that he and his assigns shall take care of the estate, preserve the buildings in repair, make necessary and proper improvements, &c. during the lives of her children, George, Wm. C., Ruth, and Sarah; and out of the rents and issues- and profits of said real estate, after deducting expenses and compensation, pay the rest and residue of such rents, issues, and profits, semi-annually, to and among her said children equally, during their joint lives; and if one of them should die before the testator, leaving issue, then to pay to such issue the parent’s share; and if without leaving issue, then to pay such deceased child’s share to her surviving children. The will then provides, upon further trust, for the payment of the rents and profits of the estate among the issue of her children, in case of the death of any of her children, during the lives of her children or the survivor or survivors of them. After the decease of the longest liver of her children, it is provided, in further trust, that the said Walter Channing, Ms heirs and assigns, shall convey the estate to the children of her children, and the issue (if any) of such grandchild or grandchildren as may have deceased, (the children of a deceased child or grandchild in all cases to represent their parents,) to be equally divided among them, according to stocks, to be held by them in fee-simple in the shares and proportions aforesaid.

The defendants in this suit are sons of William C. Gibbs, one of the sons of Mary Gibbs, the testatrix.

The legal estate in the premises was vested in Walter Channing, his heirs and assigns, by the terms of this will; and the defendants’ interest, if any they have, is an equitable interest only.

At common law, only the legal title to property is liable to attachment and seizure on execution. Property held in trust is not liable to be taken for the debts of the cestui que trust. This doctrine has never been questioned in so far as it relates to express trusts, however otherwise some courts may have held in regard to trusts arising by implication. The English statutes have superseded the common law in this respect, and so have the statutes of many of the states in this country. In our state, no statute exists which extends to such cases, and the common law alone must be our guide. The legal estate in the premises in this case is vested in the trustee; and he is, by the terms of Mary Gibbs’ will, charged with such duties as make it necessary that the legal estate should remain in him. The interest of the defendant' in the fee of the estate is contingent. If the defendants survive the last survivor of the children of the testator, they will then be entitled to have an interest in the estate conveyed to them. Until then, nothing but an equitable interest has vested or can vest in them. Such an interest, not being attachable in this state, there is no service of the writ in this case. The demurrer is therefore sustained, and the action dismissed for want of service.

1

The chief justice, having been of counsel, did not sit in this cause.