Morel v. Cornell
234 Mass. 563
Mass.
1920
Check Treatment
Pierce, J.

If we assume, as the plaintiff contends we should, that the gift under the sixth paragraph of the will to the son of $10 per week, to be paid to him personally during his life by the residuary legatees (which annuity was a charge on certain real estate devised in trust), created in the son an absolute incorporeal legal right which was enforceable primarily against the residuary legatees and secondarily against the devisees, Henry v. Barrett, 6 Allen, 500, Woods v. Gilson, 178 Mass. 511; and should we further assume that a spendthrift trust will not attach to a legal right which is not alienable or subject to anticipation, and is to be paid personally (as to which see Boston Safe Deposit & Trust Co. v. Collier, 222 Mass. 390); we nevertheless are of opinion that a spendthrift trust did attach to the interest of the son in the estate by relation as of the time of the commencement of these proceedings, because of the provisions of the sixth paragraph, which plainly were inserted to provide against a successful attack upon the validity of the annuity considered as a gift free from any claims of creditors.

Such provisions read: “If any attachment or seizure of said annuity upon process of law shall be adjudged valid as against said Arthur then said annuity shall be deemed to have ceased to *566be payable to said Arthur upon the commencement of such legal proceedings and after said commencement to have been payable to the trustees under the residuary clause of this will to be applied by them in their uncontrolled discretion for his benefit.” The testator legally could have provided that his residuary trustees “in their uncontrolled discretion” might pay to his son money for his benefit; and there is no reason why such a provision may not operate in substitution of any prior provision. Nickerson v. Van Horn, 181 Mass. 562. It is settled that such a provision confers no absolute rights on the beneficiary which he can alienate in advance, or which can be taken for the payment of his debts. Wemyss v. White, 159 Mass. 484. It follows that the ruling of the judge of the Superior Court was right; and, by the stipulation, the bill is to be dismissed.

Bill dismissed.