posing unlawful restrictions on alienation are seldom inseparably linked with the general testamentary plan of disposition, and consequently they may be rejected and the devise remain operative in all other respects.19

SPENDTHRIFT TRUSTS AND CONDITIONS AGAINST DEBT.

§ 1078. Common law rule that judgments were not liens upon

realty.

§ 1079. Statutory changes as to effect of judgments: Trusts and powers of appointment.

§ 1080. Condition of forfeiture if beneficiary becomes insolvent. § 1081. Voluntary and involuntary assignments distinguished. § 1082. Inalienability of property and non-liability for debt secured through spendthrift trusts.

§ 1083. Devises in trust to defeat claims of creditors of beneficiaries.

§ 1084. As to necessity of provision terminating estate in event of attachment: English decisions.

§1085. The same subject: American decisions.

§ 1086. Necessary incidents of spendthrift trusts.

§ 1087. Language sufficient to create a spendthrift trust.

§ 1078. Common Law Rule That Judgments Were Not Liens Upon Realty.

Judgments at common law were not a lien upon real' property. The lien arose from the power to issue a writ of elegit or execution given by the statute of Westminster. This writ of execution subjected the real estate to the payment of debts and, as a consequence, it has always been held to give a lien on the lands of the judgment debtor. If the judgment debtor died after the elegit was executed upon his lands and before the judg

1 Statute of 2 Westminster or of 13 Ed. 1, ch. 18.

23 Salk. 212; Massingill V. Downs, 7 How. (U. S.) 760, 765,

12 L. Ed. 903; United States v.
Morrison, 4 Pet. (U. S.) 136, 7
L. Ed. 804; Shrew v. Jones, Fed.
Cas. No. 12818, 2 McLean 78.

ment was satisfied, a court of equity, upon being applied to, would decree a sale of the land upon which the writ had been executed, and the judgment would be paid out of the proceeds. The same principle was adopted by Lord Redesdale in the equity jurisdiction of Ireland.* The reason why lands were not liable to execution under the early common law was because the tenant owed certain duties to the feudal lord and a new tenant could not be forced upon him without his consent, while the new tenant was under obligation to serve the king.

§1079. Statutory Changes as to Effect of Judgments: Trusts and Powers of Appointment.

The lien of a judgment upon real property arises because of the power to issue a writ of execution which subjects the real estate to the payment of the judgment." The general rule is that a statute subjecting real estate to execution under a judgment for debt, although the term "real estate" is declared to include lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto, does not interfere with the established distinction between law and equity so as to make an equitable estate liable to execution. Where the legal title to real property is in a trustee, a judgment creditor of the cestui que trust, unless he is given the right by statute to take out execution against equitable

3 Stileman v. Ashdown, 2 Atk. 477, 607; Tyndale v. Warre, Jac. 212. 4 O'Gorman v. Comyn, 2 Sch, & L. 137; O'Fallon V. Dillon, 2 Sch. & L. 13.

5 Massingill v. Downs, 7 How. (U. S.) 760, 12 L. Ed. 903.

6 Smith v. McCann, 24 How. (U. S.) 398, 16 L. Ed. 714; Morsell v. First National Bank, 91 U. S. 357, 23 L. Ed. 436; Potter v. Couch, 141 U. S. 296, 319, 320, 35 L. Ed. 721, 11 Sup. Ct. 1005.

interest of the beneficiary, must resort to a court of equity for relief."

Prior to the statute of 1 and 2 Victoria, ch. 110, it was a settled law of England that at law a judgment against a party having a power of appointment of real estate which vested in him until and in default of appointment, was defeated by a subsequent execution of the power in favor of a mortgagee. And it was held immaterial whether or not the purchaser had notice of the judgment, or that a portion of the purchase money was set aside as an indemnity against the judgment.10 The statute of 1 and 2 Victoria, ch. 110, altered the law by making judgments an actual charge on the debtor's property of which he has, at the time the judgment is entered or any time thereafter, any disposing power which he might, without the assent of any other person, exercise for his own benefit, so that the judgment continues to bind the property notwithstanding any appointment.111

The rule is well settled in England and recognized in this country that where a person has a general power of appointment either by will or by deed, and exercises this power, the property appointed is deemed in equity part of his assets and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees.12 But the doctrine has no appli

7 Morsell v. First National Bank, 91 U. S. 357, 23 L. Ed. 436; Commissioners of Freedman's Sav. & Tr. Co. v. Earle, 110 U. S. 710, 28 L. Ed. 30, 4 Sup. Ct. 226.

8 Doe v. Jones, 10 Barn. & C. 616; Tunstall v. Trappes, 3 Sim. 286, 300.

9 Eaton v. Sanxter, 6 Sim. 517.

10 Skeeles v. Shearly, 8 Sim. 153; s. c., 3 Myl. & Cr. 112. V. Somerville,

11 Hotham Beav. 63.

9

12 Thompson v. Towne, Prec. Ch. 52; s. c., 2 Vern. 319; In re Harvey's Estate, L. R. 13 Ch. Div. 216; Brandies v. Cochrane, 112 U. S. 344, 28 L. Ed. 760, 5 Sup. Ct.

cation where the judgment creditor does not seek relief in equity, but claims a lien at law which is not granted by statute.13

§ 1080. Condition of Forfeiture If Beneficiary Becomes Insol

A condition precedent that the property shall not vest in the cestui que trust until his debts are paid, and a condition subsequent that it shall be divested and forfeited by his insolvency over and limitation over to another person, are valid, and the law will give effect to such conditions.14 Where the beneficiary loses all interest in the property upon his bankruptcy or insolvency