47 Ky. 56 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
In June, 1842, Robert Pope, as the surety of Godfrey Pope, and jointly with him, executed to Elliott & Co. four notes of $1,000 each, payable in one, two, three and four years. In February, 1843, William Pope, the father of Godfrey and Robert, made his will, which was admitted to record shortly after his death in 1844.
In 1846, Elliott & Co. filed this bill against Godfrey and Robert Pope, and the executors of William Pope, alledging that Robert Pope had lately received under his father’s will, a life estate of great value, which they pray may be subjected to their debt, of which a portion
In October, 1846, a decree was rendered directing the executors to pay to th-e complainants, towards the discharge of the notes above mentioned, the sum of $350, Which had accumulated up to the first day of October, 1846, and also to pay the further sum of $25 at the end of each and every month, from the said first day of October, during the life of said Robert, or until the said debt is fully discharged, reserving to the executor the right to show the failure of the trust fund in exonera-, tion of his future liability. The basis of the decree is, that Robert Pope is, by the will of his father, entitled to $25 a month during life, out of a trust fund in the hands of the executors, and that this $25 a month may be subjected by a Court of equity, to the satisfaction of any debt of Robert, whose non-residency and absence from the State, are alledged as special grounds for resorting to the Court. It is contended in opposition to the decree, that Robert Pope has no such interest in trust, under the will, as can be thus disposed of. This depends upon the fair construction and legal operation of the will.
After devising his slaves, (except two which he desires to be emancipated,) to a grand-son, R. C. A., on his attaining twenty two years of age, the testator gives all the residue of his estate to his executors in trust, empowering them or the survivor, to sell his real estate. ■ The fourth clause of the will is as follows: “Fourth.
It being clear that the testator intended to provide in the hands of his executors, a support or the means of support for Robert during his life, to the extent of $25 a month, or $300 a year, and that the executors were confided in f©r the appropriation of this sum for his support, it is obvious that any alienation of the fund to a different object, leaving the designated purpose unaccomplished and unsecured, is a violation of the will of the testator, and of the.duties of the executors if concurred in by them; and that consequently, the beneficiary himself, has not, according to the will, any right so to alienate it. It cannot be doubted then, that this decree diverting the fund altogether from its intended objects, compels the executors to a violation of the testator’s intention, and in fact breaks up the provision of the will on this subject. It being in general the province of the Chancellor to execute trusts and wills according to their intention, and the intention being in this case sufficiently manifest, the decree can only be sustained, if at all, on the ground either that the intention is -contrary to law or public policy, or that the provisions made in the will for carrying it out, are insufficient or are calculated to defeat it.
The only principles of law or policy appealed to in support of the decree, are those which subject the debt- or’s property, legal and equitable, to the payment of his debts. But these principles do not subject the father’s property to the-debts of the son, nor give to the creditors of the son any right to complain that the father has not left or placed his property within their reach. Nor are they injured by a provision which may secure the application of the father’s property to the support of his son. If the provision be not extravagant or unrea
But as was decided in the case of Cosby vs Ferguson, (3 J. J. Marshall, 264,) neither the principal sum, if the thing holden in trust be money or choses in action, nor the monthly or semi-annual interest can be subjected by the mere force of the statute which has been quoted, and it is only in virtue of other statutes, that an interest
What debt then did the executors, of Wm. Rope owe to Robert Pope, or what effects of his were in their hands when this bill was filed or when tne decree was rendered? Certainly the estate of Wm. Pope, given in trust to his executors for the purpose of raising the various sums disposed of by the will, were not the effects or' the estate of the persons who were to receive those sums. And if the executors were and are indebted to Robert Pope to the extent that the $25 a month directed to be appropriated to his support, may at any time have accumulated in their hands, we are of opin-. ion that, prospectively, they are not and cannot be said to be indebted to him in any sum of money — that they are under no obligation to pay him $25 a month in future, but only to appropriate that sum to his support, and that if they are under any obligation to pay to him any portion of that sum, it is only so much of it as may not be required for his support, and to which he may become entitled only cn that ground, or because having provided otherwise for his own support, he should be compensated therefor out of the fund appropriated for that purpose, to the extent of $25 a month. To this extent the executors are bound to furnish -the means of support, and to the same extent he has a right to demand it of them every month. This is not a debt to him of $25 a month during life, but a duty 'to appropriate out of the estate of the testator in their hands, that sum for his support. What they owe is a support and not money. The money will be in their hands, not for his use, but foT' their use in furnishing him a support, as the testator has directed, until or unless by supporting himself otherwise, he may become entitled to a portion
1 If in the will before us the testator had directed the executors to support Robert out of his estate in their hands, without specifying the sum to be appropriated to that purpose, the case would be substantially the same as the one just supposed. The means of furnishing the support would not be his while in the hands of the executors. And as he would have no right but that of receiving and requiring a support for himself, there would seem to be nothing either in his right or in the corresponding duty which could, by the decree of a Court, be transferred or appropriated to the creditors of the beneficiary, in payment of debts unconnected with his support, without violating rights which the creditors have no right to disturb. Such a bequest or r devise, is obviously different from a devise of property\l or money in trust, for the use or benefit of an individual and from a devise of specific property in trust, to apply the proceeds or profits to his support. These devises give a direct interest in some specific subject or in a particular sum of money. The direction that the exe-. cutors having a large estate of the testator shall, among other things, support a particular individual, out of the means in their hands, gives to the beneficiary no such interest And the direction to appropriate a specific sum for his support, differs in no respect from the simple direction to support him, except that it prescribes a limit to the appropriation, and may, perhaps, imply that so much of it as may not be requisite for the object expressed, is still intended for the same individual. In that case it would be held for his use, and being his, wóuld be to the of his debts under the
Wherefore, the decree is reversed and the cause remanded for proceedings and decree in conformity with this opinion.