The demurrer to the first count of the complaint was properly sustained. That count states no cause of action against the demurring defendants.
Counsel do not differ very materially as to the conditions which must exist in order that a creditors' bill may be maintained. Such a bill is one brought to enforce the payment of a debt out of the property of the debtor, under circumstances which impede or render impossible the collection of the debt by the ordinary process of execution. 3 Pomeroy's Equity, § 1415; 2 Beach on Equity, § 883; Vail v. Hammond,60 Conn. 374; Ager v. Murray, 105 U.S. 126, 129; as, for illustration, to reach equitable interests in property belonging to the debtor which could not be reached by an execution at law. Hadden v. Spader, 20 Johns. 554; Spader v.Davis, 5 Johns. Ch. 280; Whittlesey v. McMahon, 10 Conn. 137;Botsford v. Beers, 11 id. 369; Davenport v. Lacon, 17 id. 278, 282; 1 Perry on Trusts, § 386, 386a; Earle v. Grove,92 Mich. 285; Cruger v. Coleman, 75 Ga. 695.
In respect to the second count, the demurrer calls in question, not so directly the sufficiency of the averments therein, as it does the relief claimed. The specifications on which the demurrer is based are, in substance, that upon the facts alleged the plaintiff is not entitled to have the relief he asks, because (1) no judgment has been rendered in this State;
(2) the plaintiff has adequate remedy at law; and (3) the said trustees have an uncontrollable discretion over the fund in their hands, both as to the principal and as to the income. Let us examine these reasons separately.
As to the first: In this State it is not necessary that a judgment should be rendered before the creditors' bill is brought. The judgment may be rendered in the very action in which the equitable relief is asked. Vail v. Hammond, 60 Conn. 374. We think the demurrer should not have been sustained for this reason.
The second: It is alleged in the complaint that the trustees are combining with the said William P. to pay over to him the income in advance, so that in no event could it be reached by process of garnishment. It is certain that the remedy at law is not an adequate one, and that the demurrer should not have been sustained on this ground.
The third reason: So for as the principal sum of the fund is in question, the claim of the trustees seems to be supported by the authorities they have cited. Smith v. Wildman, 37 Conn. 384;Leavitt v. Beirne, 21 id. 1, 8; Easterly v. Keney, 36 id. 18, 22. As to the income, however, we are not able to concur with them. The discretion with which they are invested by the will of their mother, Mary F. Jones, is limited to the principal of the fund. It does not extend to the income. As to the income their duty is to apply it "for the use of" the child for whom the said share shall be held in trust. The principal sum here is the share held in trust "for the use of" William P. Jones. The duty of the trustees is to apply the whole net income of this principal sum for the use of the said William P., and they must so apply it at such reasonable times as the income is earned and is collected. William P. Jones, the beneficiary, has such an interest in the income that if the trustees refused to perform their duty in this behalf he might, by a proper proceeding in equity, compel them to do so. As the beneficiary could do this, so a creditor of the beneficiary may do it. Equity allows the creditor to avail himself of the interest which the beneficiary has.Maynard v. Cleaves, 149 Mass. 307; Sears v. Choate,
146 id. 395, 398; Sparhawk v. Cloon, 125 id. 263; Evans v. Wall, 159 id. 164; Wetmore v. Wetmore, 149 N.Y. 520; Halsted v.Davison, 10 N.J. Eq. 290; 2 Beach on Equity, § 883, and cases cited. Surely if the income was used to pay house rent, or a grocer's, or a butcher's, or a coal man's bill, due from William P., it would be applied "for his use" within the meaning of the words of the will. Why not then pay other of his debts? Very often to pay the debts of one would be to apply money "for his use," in a higher degree and in a more serviceable form than in any other way. It is possible that the debt sought to be collected in this case includes in it bills for one or more, or all of the sorts above indicated; and if the trustees apply the income to pay this debt, they will very clearly apply it "for the use of" their brother, William P. Jones, and for the very purposes intended in their mother's will. It seems to us that if they refuse so to apply the income they may properly be required by a court of equity to make such application.
There is error and the judgment is reversed.
In this opinion the other judges concurred.