20 Mo. App. 1 | Mo. Ct. App. | 1885
delivered the opinion of the court.
George P. Dorris made his will, in which, among other things, he devised certain houses to trustees “in trust to possess and keep the same rented as advantageously as ■may be, and out of the rents to pay for all proper repairs to said houses and for a reasonable insurance thereon and the exjienses of their care, and all taxes, charges, and assessments, levied, imposed, or charged thereon and within the times required by law, and the balance to my •son, Thomas Dorris, during his natural life.”
The remainder of his estate he devised to the same trustees to be held, sold, and put into condition to realize as large a net income as possible, and to pay such net income at the end of each and every successive period of three months succeeding Ms death, to his son, Thomas,
These are all the provisions of the will material to the present inquiry.
The plaintiffs, judgment creditors of Thomas Dorris, have brought their bill in equity to subject the interest of Thomas Dorris in the property aforesaid, and in the rents, issues, and profits arising therefrom, to the payment of their judgment, and obtained in the trial court a decree ordering the trustees to pay to them the sum, $152.73, being the amount of such judgment and costs.
The questions presented for our consideration are:
1. Can these funds be subjected in any manner to the payment of claims of judgment creditors of Thomas Dorris.”
2. Can they be thus subjected in the manner here adopted.
The uniform rule in England, since the decision in Brandon v. Robinson (18 Ves. 433), has been that a donor] creating a life estate, could not take away its incidents, among which are the powers of voluntary and involuntary alienation. This rule even there is subject to the exception that if the instrument creating the estate provides for its cesser or defeasance upon an attempted alienation, the restraint will be upheld; so where the estate created is a mere use at the discretion of the trustees, and the beneficiary has no power to control such discretion.
The rule thus established in England, has not met with general approval in the United States. It has been followed in Rhode Island, and the Carolinas; (Tillinghast v. Bradford, 5 R. I. 205; Heath v. Bishop, 4 Rich. Eq. 46; Mebane v. Mebane, 4 Ired. Eq. 131); questioned in some other states, and rejected in Pennsylvania, Yermont, New Jersey, Kentucky, Massachusetts, and by the •supreme court of the United States. Fisher v. Taylor, 2 Rawle 33; Thackara v. Mintzer, 100 Pa. St. 151; White v. White, 30 Vt. 338; Hardenburg v. Blair, 30 N. J. Eq. 645, 661; Pope's Ex. v. Elliott, 8 B. Mon. 56;
The case of Campbell v. Foster (35 N. Y. 366), is-claimed also as being opposed to the English rule, but as-that decision turned exclusively on the jurisdiction of the court, under certain provisions of the code, the claim is hardly tenable.
In this state, the question has never met with any direct adjudication, although it was incidentally discussed in McIlvaine v. Smith (42 Mo. 45), and Montague v. Crane (12 Mo. App. 582).
We are thus left at liberty to follow either the English rule or that adopted by the maj ority of the American courts, whichever in our opinion is most consonant with reason and a sound public policy.
Justice Miller discusses the question with his usual clearness in Nichols v. Eaton, supra, and shows that the policy of the law in regard to creditors is essentially different in England and the United States ; that while the rights of creditors are scrupulously guarded here as there, yet the legislation in almost all the states, has recognized the paramount right of the debtor not to be wholly stripped of the means of subsistence. The learned judge cites in illustration our homestead and exemption laws, which have been uniformly upheld by the courts against subsequent creditors, and concludes by demonstrating that there can be no difference in principle between laws which secure to the debtor a certain exemption and a trust created in his favor by the gift or devise of a. grantor or a testator, provided the creditor is advised, or may by reasonable diligence advise himself, that the ostensible means of the debtor are not subject to his-claims.
We believe that the rule thus announced, if confined to a reasonable provision made for the beneficiary’s support, is more in harmony with our policy in regard to-debtors and creditors, and, therefore, supported by reason as well as by the weight of authority in this country.
In this case, however, we are asked to go further, and are asked to declare that where the surrounding ■circumstances of a trust, of which circumstance, no record notice is brought home to the creditor, are such as lead to the inference that it was the intention of the •devisor to withdraw his gift from the claim of the ■devisee’s creditors, we shall give effect to such intention, although not expressed in the instrument itself nor necessarily implied from anything expressed therein. This we must decline to do.
The will of George P. Dorris does not expressly exempt the property devised for the benefit of his son, Thomas, from the claims of the latter’s creditors. There is nothing in the will itself which would indicate that the trust thus created was in the nature of a spendthrift trust; and to seek in the surrounding circumstances a reason for declaring it to be such, the authorities do not warrant and a sound policy forbids.
The second point made by the appellants, that the funds in the hands of the trustees, accrued and accruing, can not be subjected to the claims of a judgment creditor by the proceedings here adopted, is likewise untenable.
This proceeding is in the nature of an equitable garnishment, and is the proper proceeding in cases where the funds can not be reached by statutory process. This was intimated in Lackland v. Garesche (56 Mo. 271), and was held in Pendleton v. Perkins (49 Mo. 565).
There is no error in the record, and the judgment-will be affirmed. It is so ordered.