Baker v. Keiser, 75 Md. 332

Baker v. Keiser

75 Md. 332 | Md. | 1892

Irving, J.,

delivered the opinion of the Court.

Lewis Keiser, of Montgomery County, by his will, made in September, 1886, directed in the first clause of his will that his executors should sell all his real and personal estate. After directing his debts to be first paid, and making certain provisions for his wife and one of his daughters, by the fourth clause of his will he provided as follows': “I do hereby gi-ve, bequeath, and devise all the rest and residue of my estate, both real and personal, subject to the above-mentioned special charges, to my six children and heirs-at-law, namely: Eli Keiser, of Montgomeiy County, Maryland; Cyrus *337Keiser, of said County and State; Ephraim Keiser, of Washington City; Levina Creamer, of said city; Leah Creamer, of said city; and Lydia Creamer, of Summit County, Ohio, to he equally divided between the said heirs, share and share alike.” By the sixth clause he says : Cí I do hereby direct and will that the share above-mentioned to go to my daughter, Levina Creamer, is hereby devised and bequeathed unto my executors, hereinafter named, in trust for the benefit of said Levina during her life, receiving her annual interest and income therefrom, the said share to be securely invested, as soon as declared, and after her death to he equally divided between her children.”

A judgment was obtained in the Supreme Court of the District of Columbia against Milton Creamer and Levina Creamer, his Avife, (upon their promissory notes) for the sum of three hundred and ninety-five dollars and ninety-eight cents ($395.98). Upon a transcript of the record of that judgment, an attachment was issued out of the Circuit Court for Montgomery County, and Avas laid in the hands of the appellees, as garnishees of Milton and Levina Creamer. The garnishees were duly summoned, and pleaded nulla bona, and the case was tried on the issue joined thereon.

At the trial it Avas conceded that the portion of Louis Keiser’s estate allotted to Levina Creamer for life, and invested by the trustees under the will, amounted to seventeen hundred and thirteen dollars and fifteen cents; and that at the time of the trial there Avas in the hands of the garnishees, due Levina Creamer, the sum of two hundred and five dollars and fifty-two cents as income.

The only question in the case is whether this amount of income, in the hands of the trustees, is subject to attachment. That judgment has been recovered in accordance Avith section 2, of Article 45, of the Code of Public General Laws, and is enforceable under the same *338section of the law of Husband and Wife, by attachment or otherwise as if the woman was not married.

In Warner, et al. vs. Rice and Knell, Trustees, &c., 66 Md., 440, this Court emphatically declared that it was wholly against the policy of the law to allow property, whether legal or equitable, to be fettered' by restraints upon alienation; and generally, the Court said: “Whenever property is subject to alienation by the owner, it is subject to his debts." This was the law of England, and had always been the law in this State; but in Smith & Son vs. Towers, Garnishee, 69 Md., 90, a majority of this Court decided “that the founder of a trust may provide, in direct terms, that his property shall go to his beneficiary to the exclusion of his alienees, and to the exclusion of his creditors." In doing so this Court followed the Supreme Court of the United States in Nichols, Assignee vs. Eaton, et al., 91 U. S., 725, and the case of Broadway National Bank vs. Adams, 133 Mass., 170. This Court recognized the fact that there was great conflict of authority on the subject, in the States of this Union; and that the preponderance of authority was not in conformity with the views expressed by the Supreme Court o’f the United States in Eaton’s Case, but concluded that there was nothing in the decision of Warner vs. Rice, 66 Md., 440, which should restrain this Court from saying that the founder of the trust could by sufficiently clear language create a trust for a beneficiary without the power of alienation, without imposing a limitation creating a cesser of the trust and estate, upon attempt at alienation. In making that decision the Court was influenced by the express direction of the testator that the income, (the net income, after paying all proper charges on it,) should be paid “into his own hands, and not into another, whether claiming by his authority or otherwise." This language was so direct and explicit, that the Court regarded it as sufficient to justify its respect*339ing the testator’s wishes, for the reasons assigned by the Supreme Court in Eaton’s Case, and elaborated in the Towers’ Case. In the will under consideration there is no language which by any fair and reasonable interpretation can be made to mean that the testator intended to put any restraint upon his daughter, the legatee, for life of the income of the property intended for her for life, and afterwards for her children, as to her method of collecting or using the income. The words of the trust are: “In trust for the benefit of said Levina, during her life, receiving her annual interest and income therefrom the said share to be securely invested as soon as declared, and after “her death to be equally divided between her children.”

The Avord “ receiving ” means nothing more in such connection than “'taking” or “having.” If the Avords during her life were only transposed in the sentence and made to folloAv the word “ therefrom, ” it Avould read “for the benefit of said Levina receiving her annual interest,” &c. Clearly it Avas only intended to declare an estate for life in his daughter in one-sixth of the testator’s estate, and to give the corpus of that share to her children. Without importing words into that Avill which are not there, and imputing an intention to the testator of Avhicli he has given no intimation by any verbal expression, we cannot say that the income Avas not and is not assignable by the life tenant; and if it is, there Avas error in holding it to be beyond the reach of creditors. Any other construction of this will and ruling in this case Avould be in effect saying that all life estates of like character, given in trust, are incapable of being alienated. This Court went as far as’ they could in the Towers’ Case to effect the intention of the testator Avhich Avas so expressly declared; but proper adherence to the policy of the laAv in the State, Avill not alloAv the extension of the doctrine of the Totvers’ Case beyond the limitations of *340that decision, nor to a case not falling clearly within its reasons and reasoning; and this case does.not.

(Decided 4th February, 1892.)

Judgment reversed, and cause remanded for a new trial.