78 Tenn. 392 | Tenn. | 1882
delivered the opinion of the court.
The questions involved in this record arise upon a proper construction of the will of Rachael Stump, deceased, which contained the following clause:
“I hereby give, devise and bequeath to my friends Wxa. G. Harding and John Shute, jr., and my brother Philip Shute, and the survivors or survivor of them, and to the heirs of such survivor, his executors, etc., all the' residue of my estate not necessary for the payment of my debts, whether real, personal or mixed, to have and to hold upon trust nevertheless, and to and for the uses, trusts and purposes following and none other, viz: That the said William G. Harding and John Shute, jr. and Philip Shute and the survivors or survivor of them, shall suffer and permit my son Philip S. Stump, for and during his life, to have and receive from the rents, issues and profits of said property, for his support and maintenance such sum or sums of money,' or such amount of any other issues of said property (except the increase of negroes), as he, said Philip S., may deem proper; in such manner, however, as that the same shall not be liable to his debts, or for contracts made by him, and that they, and the survivors or survivor of them, shall suffer and permit the said Philip S. to have and to exercise such control over the slaves and real estate hereby bequeathed and devised, in the cultivation and renting of the one or hiring or working the others, for one year at a time, as he, said Philip S.; may deem proper; in such manner, however; only that said Philip S. may 'derive a*394 support therefrom, and that the same shall not be liable for his debts or contracts; it being my intention to provide for said Philip S. out of the issues of said property, a sum sufficient for his support; of the-amount of which sutn said Philip S. is to be judge. And upon trust further, that said trustees and the survivors or survivor of them, their heirs, etc., after the death of the said Philip S., shall assign, transfer and convey said property, with its increase, to any child or-children of the said Philip S. that may be living at his death, and should the said Philip S. die without issue living at the time of his death, then they or the survivors or survivor of them, their heirs, etc., shall assign, transfer and convey said property to those who may then be my heirs at law, in such proportion as they would have taken by the rules of descent.. I hereby declare it to be my intention, by the bequest and devise to trastees above, to provide a support for my son Philip S. out of my estate, and not to vest in him any interest in said property which may or can be subjected to debts or contracts made or entered into by him. It is my further desire that said trustees should not be made liable. for any waste or mismanagement of said estate, unless such waste or loss-shall be occasioned by their own intentional fraud or misconduct.”
Bloomstein recovered a judgment at law against the beneficiary, Philip S. Stump, had execution issued and levied upon his interest in said lands. To enjoin which the original bill was filed in this cause, alleging that the interest of said Philip S. in said land under-
We are of opinion that the trust created under the above recited clauses of the will was an active or special one, and vested the legal title to said land in the trustees, and that the interest of the cestui que trust under it, being a mere equity, was not subject to levy and sale under execution at law. The chancellor so held; and we are content to rest this branch of the case upon the reasons stated and the authorities cited by him in the learned opinion which he delivered in deciding the case in the court below. He said: “Special or active trusts were never within the province of the Statute of' Uses. These are trusts which require some' act to be done, or some duty to be performed by the trustee, even if the act or duty be for the benefit of" the cestui que trust. At an early day, it was held that the statute did not apply where lands are limited to trustees to receive and pay over the rents and profits to such' and such persons, for here the lands must remain in the trustees to answer such purposes: Symson v. Turner, 1 Eq. Cas. Abr., 383, pl. 1, in note.”
“ So, where the trust was out of the rents, after deducting rates, taxes, repairs and expenses, to pay such
“So, where the testator devised that the trustees should yearly, during the life of his son, receive the rents of the land to be applied to the maintenance of the son: Sylvester v. Wilson, 2 Durnf. & E;, 444. 'Whether the trustees/ says Judge McKinney, 'do or do not take the legal estate depends chiefly on the fact whether the testator has imposed upon the trustees any trust or duty the performance of which requires that the estate should be vested in them: Ellis v. Fisher, 3 Sneed, 234. And see Jones v. Lord Say and Seale, 1 Eq. Cas. Abr., 383, pl. 4; Bagshaw v. Spencer, 2 Atk., 583; Wright v. Pearson, 1 Eden, 125; Stanly v. Colt, 5 Wall., 168; Porter v. Doby, 2 Rich. Eq., 53; Mott v. Buxton, 7 Ves., 201; Aikin v. Smith, 1 Sneed, 309.
' Therefore/ says Mr. Perry, ' if any agency, duty, or power be imposed on the trustees, as by a limitation to the trustee and his heirs to pay the rents or convey the estate, or to preserve contingent remainders, in ail of these and in other like cases, the operation of the statute is excluded and the trusts or uses remain mere equitable estates.’ 'So/ he adds, 'if the trustee is to exercise any discretion in the management of the estate, in the investment of the proceeds or the principal, or in the application of the increase, or if the purpose of the trust is to protect the estate for a given time, or until the death of some one, or until division’: Perry m: Tr., sec. 305, citing numerous cases.”
“The rule is the same in this State, under the decisions of our courts construing such trusts, although the statute of uses be not in force. The trustee takes exactly that quantity of interest which the purposes of the trust require: Ellis v. Fisher, 3 Sneed, 234; Murdoch v. Williams, 7 Cold., 612; Harding v. St. Louis Life Ins. Co., 2 Tenn. Ch., 468.”
“The will before us may have intended to create the trust estate for the purpose of preserving the contingent remainders, and securing the actual conveyances of the property, upon . the- happening of the contingency, to those entitled in remainder. These are purposes which' would suffice to vest the trustees with title, although not essential, perhaps, to the effectuating
This case is easily distinguishable from the case of Turley v. Massengale, 7 Lea, 353, so far as this question is involved. In that case the entire fee simple had, by the body of the will, been devised to the son of the testator. Afterwards, by a codicil it was provided that all the property of every kind devised to the son in the foregoing will, should be vested in a trustee for the use and benefit of the son, and no part of the same to be subject to execution or other legal process for any debt or liability he might have contracted, or might thereafter contract. Nor. was
The chancellor, however, was further of opinion that under the provisions of the act of 1832, sec. 1, .and the proviso carried into the Code, sec. 4233, inasmuch as -the trust was created by and the interest in the property held by the cestui que trust proceeded from another and was declared by will duly recorded, that a court of equity had no jurisdiction to subject the interest of the beneficiary to the payment of his debt, and that there was no power' existing anywhere, either at law or equity, to subject it, and hence dismissed the cross-bill. Since this oa$e was decided in' the court below, this precise question came before this court in the case of Turley v. Massengale, above referred to, 7 Lea, 353, and after having been ably argued, upon full consideration it was determined that a court
The decree of the chancellor, therefore, dismissing the cross-bill, must be reversed, and a decree entered subjecting the life estate of the beneficiary, Philip S. Stump, to the satisfaction of the judgment against him.
The costs of the cause in this court, as well as the chancery court, will be paid out of the fund arising from the subjection of the life interest.