Thackara v. Mintzer

Mr. Justice Mercck

delivered the opinion of the court October 2d 1882.

The plaintiff in error is the executor and testamentary trustee of William G. Mintzer, under whose will this contention arises. After several specific legacies the testator devised to the plaintiff in error, the residue of his real and personal estate in trust inter alia, to let, lease and demise the real estate, and to keep invested the personal estate, to collect the rents, interest, income and profits thereof and after paying therefrom all the expenses necessary to keep the real estate in' repair, and all charges and expenses, to make distribution of the remaining net income, and to pay over the one-third part thereof to his son George for and during all the term of his natural life, and on his death remainder over to others named. The testator proceeds .to declare: “it is expressly my will that the income which I have heretofore directed to be paid to my children respectively, is to be for their respective sole, separate and exclusive use and benefit .... so that the same shall not be in any manner pledged, appropriated, disposed of or parted with by anticipation or before the same shall have accrued and become payable; nor be subject to execution, attachment, or sequestration, for any debts or liabilities whatever.”

It is now attempted to collect by attachment execution, against the plaintiff in error, as garnishee of George, the sum now due to the latter under the will of his father.

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.

In the will before us the 1 estator, in due and legal form, has expressed such intent in clear and unmistakable language. He created in the plaintiff in error, an active trust. The fund in question was to be kept by him for the “ the sole, separate and exclusive use and benefit” of George, and not be subject in the hands of the trustee for “ any debts or liabilities whatever of George.”

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. It is for alimony awarded by the court to the wife of George, after a verdict and judgment against him, for a divorce a mensa et thoro, in her favor. The attachment issued on a debt of record fixed by judgment and decree. Whether the judgment be for a breach of contract or for a tort, matters not. The testator recognized no such distinction. lie impressed on the fund exemption from all kinds of legal process against the trustee, not only for debts, bnt also for “ all liabilities whatever” of George. Language broader and more comprehensive could not be used. The testator made no distinction between the character of the obligations which might rest on George. He designed to cover all, legal, equitable and moral. If we depart from the clearly expressed will of the testator in this respect, we make a new will instead of enforcing the one he made.

The question whether George should justly apply the money after it has reached his hands, to the discharge of this obligation, or in case he refuses so to do, what form of legal proceedings may be instituted against him, does not now arise. We are dealing solely with the case of legal proceedings against the trustee, instituted for the purpose of intercepting his action and defeating the trust stamped on the fund by the donor. As the wife of George has become one of his creditors and seeks to enforce her claim by adverse process against the trustee, the debt as well as the proceedings come within the prohibitory clause of the will. The learned judge therefore erred in entering judgment in favor of the defendant in error on the point of law reserved.

Judgment reversed, and judgment in favor of the plaintiff in error, non obstante veredicto.