39 N.C. 131 | N.C. | 1845
The following were the facts of the case: David Mebane, by his will, dated 7 April, 1842, gave to Alexander Mebane in fee, a tract of land, called the Hodge Place, and four slaves, "in trust for my son Anderson; and the said Alexander, as trustee, may at any time take possession of said land and negroes, and lease the land and hire the negroes, and apply the proceeds to the maintenance of my son Anderson — it being my will and intention, that the aforesaid property shall not in any wise be subject to the debts of my said son Anderson." In a subsequent clause, the testator added: "I give unto my son Alexander, all the horses, cattle, hogs, and the farming utensils on the Hodge Place, and also one bed and furniture, in trust, nevertheless, for my said son, Anderson; it being my will and intention that the said property shall not in any wise be subject to the debts of said Anderson. It is also my will, if the said Anderson should die without issue, that then the Hodge Place shall belong to my grandson, Thomas R. Mebane." By other *102 clauses of the will, the testator gave to his son Anderson a share, with his other children, of the debts that might be owing to him at his death, but directed that his son Alexander, (132) as the money might be collected, should, "as trustee, take possession of it, and pay it over in the manner directed in the former clauses of this will."
The plaintiff is a judgment creditor of Anderson Mebane; and, after a return of nulla bona on a fieri facias, he filed this bill against Anderson Mebane and Alexander Mebane, for satisfaction out of the trust property. The answers raise the question, whether the property is liable to the debts. The trustee further states, that in the maintenance of his brother Anderson, who is blind, and in necessary expenditures in conducting the farm, he has anticipated the income about $200; and he submits that at all events he has a right to be reimbursed what he shall be found to be in advance.
In Dick v. Pitchford,
That being so, it follows, that the interest of the cestui quetrust, whatever it may be, is liable in this Court for his debts. For it would be a shame upon any system of law, if, through the medium of a trust or any kind of contrivance, (134) property, from which a person is absolutely entitled to a comfortable, perhaps an affluent support, and over which he can exercise the highest right of property, namely, alienation, and which, upon his death, would undoubtedly be assets, should be shielded from the creditors of that person during his life. There is no such reproach upon nor absurdity in our law; for we hold, that whatever interest a debtor has in property of any sort may be reached by his creditors, either at law or in equity, according to the nature of the property. Terms of exclusion of the donee's creditors, not amounting to a limitation of the estate, can no more repel the creditors, than a restraint upon alienation can tie the hands of the donee himself. Liability for debts ought to be, and is, just as much an incident of property, as the jus disponendi is; for, indeed, it is one mode of exercising the power of disposition. This is the first occasion on which the point has come directly into judgment; but in the case of Bank v. Forney,
The foregoing cases sufficiently establish, that by the use of no terms or art can property be given to a man, or to another for him, so that he may continue to enjoy it, or derive any benefit from it, as the interest, or his maintenance thereout or the like, and at the same time defy his creditors and deny them satisfaction thereout. The thing is impossible. As long as the property is his, it must, as an incident, be subject to his debts, provided only, that it be tangible. The only manner in which creditors can be excluded, is to exclude the debtor also from all benefit from, or interest in. the property, by such a limitation, upon the contingency of his bankruptcy or insolvency, as will determine his interest, and make it go to some other person. It follows, that the interests of Anderson Mebane are liable to the plaintiff's satisfaction, and that they must be sold for that purpose, unless, within a reasonable time, the plaintiff's debt should be otherwise paid. But, of course, the trustee is entitled, first. to be reimbursed out of the fund any expenditures made by him bona fide, and his costs in this cause; and, in order to ascertain what may be thus due, and also what may remain due on the plaintiff's judgment for principal, interest, and costs and his costs in this Court, there (137) must be an inquiry by the master.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Hough v. Cress,