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and it then passes to another, there remains in him no interest which can be attached by his creditors. Where the trust declares that upon the bankruptcy of the beneficiary the property or the income is to go to his wife or children in such manner as the trustee in his discretion shall deem proper, all interest would pass from such beneficiary upon the happening of the event mentioned, and no property would remain for his creditors. If, however, the beneficiary is to receive, after his bankruptcy, any vested interest in the property, that interest may be separated from that which goes to his wife or children and will be subject to the payment of his debts.15 But if the devise over is for the support of the bankrupt and his family in such manner as the trustee may think proper, the weight of authority is that there remains no interest to which the assignee can assert a valid claim.16 Even though the beneficiary might have no wife or child at the time the trust was made, yet if the trustee is authorized in the event of the bankruptcy of the beneficiary to loan and reinvest the income of the property and to add the same to the principal of the estate until the beneficiary's decease or until he shall have a wife or child capable of receiving the trust property forfeited by him, there would seem to be no intention to secure or reinvest in the bankrupt any interest in the devise thus forfeited, and there would therefore be no property to which the assignee could lay claim. And even if the trustee. may at his discretion transfer to the beneficiary all or

15 Rippon v. Norton, 2 Beav. 63; Page v. Way, 3 Beav. 20; Piercy v. Roberts, 1 Myl. & K. 4; Lord v. Bunn, 2 You. & Coll. Ch. 98.

16 Twopeny v. Peyton, 10 Sim. 487; Nichols v. Eaton, 91 U. S. II Com. on Wills-44

716, 23 L. Ed. 254; Brooks v. Reynolds, 59 Fed. 923, 8 C. C. A. 370; Huntington v. Jones, 72 Conn. 45, 43 Atl. 564; Stone v. Westcott, 18 R. I. 685, 29 Atl. 838.

any portion of the property, or if the trustee, after the termination of the interest of the beneficiary because of his bankruptcy, may in his discretion pay to or apply for any use of the beneficiary or for the use of him and his family so much of the income to which he would have been entitled in case the forfeiture had not happened, the bankruptcy of the beneficiary would leave no estate vested in him which the assignee could claim. The trustee, in such a case, is under no obligation to exercise his discretion in favor of the bankrupt. To compel him to pay any of the income to the beneficiary after his bankruptcy, or to his assignee, would be adding a provision to the will of a testator which he had never intended.17

17 Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254.

Contra: Green v. Spicer, 1 Russ. & M. 395; Snowdon v. Dales, 6 Sim. 524.

Under the California statute a devise of real property to trustees with no provision by which it can vest in any other person except by a conveyance by the trustees, and with the express intent that it should vest only by such a conveyance, is void.-Estate of Fair, 132 Cal. 523, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000.

If a construction of the language of the will by the use of such words as "shall go to," or "shall be paid to," or other words which express the idea that it is to go to named beneficiaries irrespective of the direct devise to the trustees and without a conveyance by them, the trust will be upheld.Estate of Dunphy, 147 Cal. 95, 100,

81 Pac. 315; Estate of Spreckels, 162 Cal. 559, 568, 123 Pac. 371.

But while the decision in the Fair case is not extended to cases where words are found constituting a disposition of the property to the beneficiaries of the trust without aid of a conveyance by the trustees, yet that decision is consistently adhered to, namely, that a devise of realty in trust to be conveyed by the trustees to beneficiaries named, is forbidden by law. See Estate of Sanford, 136 Cal. 97, 68 Pac. 494; Estate of Pichoir, 139 Cal. 682, 73 Pac. 606; McCurdy v. Otto, 140 Cal. 48, 73 Pac. 748; Hofsas v. Cummings, 141 Cal. 525, 75 Pac. 110; Estate of Dixon, 143 Cal. 511, 77 Pac. 412; Sacramento Bank v. Montgomery, 146 Cal. 745, 81 Pac. 138; Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 204, 92 Pac. 184; Estate of Heberle, 153 Cal. 275,

§ 1081. Voluntary and Involuntary Assignments Distinguished. A distinction is drawn by some authorities between voluntarily taking the benefit of insolvent acts, and being forced into bankruptcy by the action of creditors.18 In the leading English case of Rochford v. Hackman,19 a bequest of personal estate was made in trust for one for life, with a gift over if he should in any manner sell, assign, transfer, encumber, or otherwise dispose of or anticipate the same, or any part thereof. The legatee being in prison for debt took the benefit of the insolvent act,20 and it was held that the limitation over thereupon took effect, for that taking the benefit of the act was a voluntary alienation on the part of the legatee. There is said to be in such cases a sound distinction between vol

276, 95 Pac. 41; Estate of Spreckels, 162 Cal. 559, 568, 123 Pac. 371; Estate of Willson, 171 Cal. 449, 452, 153 Pac. 927.

A trust created by will to receive the rents and profits of land until one of the beneficiaries named shall attain the age of twenty-five years, and to apply the net income of the same "to such an extent and at such time or times as in their judgment may be proper," to and for the use of the beneficiaries named, is void, because not imperative, but merely discretionary as to the amount of the income to be so applied.-Estate of Sanford, 136 Cal. 97, 68 Pac. 494.

A devise by a deceased testator to trustees in trust to receive the income of his real and personal property, and to dispose of the same for the support of a grand

son until he shall reach the age of thirty years, and then to transfer the property to him, is void as to the real estate; and where it is apparent that the testator would not have devised a small amount of personal property in trust if he had known that the devise of the realty was void, the whole trust scheme must fail, and the property was properly distributed to the grandson as the sole heir at law of the decedent.Estate of Dixon, 143 Cal. 511, 77 Pac. 412.

18 Shee v. Hale, 13 Ves. Jun. 404; Brandon v. Aston, 2 You. & C. Ch. 24; Churchill v. Marks, 1 Coll. C. C. 441; Lloyd v. Lloyd, L. R. .2 Eq. 722; In re Amherst's Trusts, L. R. 13 Eq. 464.

199 Hare 475.

20 1 and 2 Vict., ch. 110.

untary alienation and compulsory. "It can not, I think, be said that a man has alienated when the alienation is made by the act of the law, and not by his own act; and if he has not alienated there is no breach of the condition, and the life estate is not determined."'21 But the intent of the testator should control, and the decision would differ if the expressed intent is that the donee shall forfeit all interest in the property should there be any alienation either by reason of his own actions or by operation of law. Thus, if the condition be against any alienation which he may "do or suffer,"22 or "do or permit''23 to be done, it includes involuntary or compulsory acts.

§ 1082. Inalienability of Property and Non-Liability for Debt Secured Through Spendthrift Trusts.

The general rule is that no devise in fee simple of property can be subjected to a condition or provision that the property shall be exempt from all liability for the debts of the beneficiary.24 If the property given one be either absolutely or for life, the donor can not take away the incidents of the estate granted.25 And a devise that the property shall not be subject or liable to conveyance or attachment is void as contrary to law and repugnant to

21 Rochford v. Hackman, 9 Hare 475, 484. See, also, Rex v. Robinson, Wightw. 386; Dommett v. Bedford, 6 Term Rep. 684; Doe v. Carter, 8 Term Rep. 57. This distinction has been denied in a later case. Pearson v. Dolman, L. R. 3 Eq. 315.

22 Roffey v. Bent, L. R. 3 Eq. 759. See, also, Montefiore v. Behrens, 35 Beav. 95.

23 Ex parte Eyston, 7 Ch. Div. 145.

24 In re Machu, L. R. 21 Ch. Div. 838, 842; Nichol v. Levy, 72 U. S. 433, 18 L. Ed. 596; McCleary v. Ellis, 54 Iowa 311, 37 Am. Rep. 205, 6 N. W. 571; Sparhawk v. Cloon, 125 Mass. 263, 267; Camp v. Cleary, 76 Va. 140.

25 Brandon v. Robinson, 18 Ves. Jun. 429, 433.

the estate devised.26 But what can not be done directly may be accomplished by means of a trust, denominated a "spendthrift trust."27 The validity of such trusts is recognized by the great weight of authority.28

§1083. Devises in Trust to Defeat Claims of Creditors of Beneficiaries.

Qualifications of a devise of land in fee, which are intended for the benefit of another designated person, may be valid, being regarded as constituting a trust in

26 Steib v. Whitehead, 111 Ill. 247, 251; McCormick Harvesting Mach. Co. v. Gates, 75 Iowa 343, 39 N. W. 657; Stansbury v. Hubner, 73 Md. 229, 25 Am. St. Rep. 584, 11 L. R. A. 204, 20 Atl. 904; Blackstone Bank v. Davis, 21 Pick. (38 Mass.) 42, 32 Am. Dec. 241; Hahn v. Hutchinson, 159 Pa. St. 133, 28 Atl. 167; Ehrisman v. Sener, 162 Pa. St. 577, 29 Atl. 719.

An apsolute equitable ownership of the income of property is subject to the claims of creditors. -Sears v. Choate, 146 Mass. 395, 4 Am. St. Rep. 320, 15 N. E. 786.

27 Van Osdell v. Champion, 89 Wis. 661, 46 Am. St. Rep. 864, 27 L. R. A. 773, 62 N. W. 539.

28 Shelton v. King, 229 U. S. 90, 57 L. Ed. 1086, 33 Sup. Ct. 686; Mason v. Rhode Island Hospital Trust Co., 78 Conn. 81, 3 Ann. Cas. 586, 61 Atl. 57; Olsen v. Youngerman, 136 Iowa 404, 113 N. W. 938; Wagner v. Wagner, 244 Ill. 101, 18 Ann. Cas. 490, 91 N. E. 66; Roberts v. Stevens, 84 Me. 325, 17 L. R. A. 266, 24 Atl. 873; Maryland

Grange Agency v. Lee, 72 Md. 161, 19 Atl. 534; Lampert v. Haydel, 96 Mo. 439, 9 Am. St. Rep. 358, 2 L. R. A. 113, 9 S. W. 780; Hardenburgh v. Blair, 30 N. J. Eq. 645; Mattison v. Mattison, 53 Or. 254, 133 Am. St. Rep. 829, 18 Ann. Cas. 218, 100 Pac. 4; Siegwarth's Estate, 226 Pa. 591, 134 Am. St. Rep. 1086, 75 Atl. 842; Jourolmon v. Massengill, 86 Tenn. 81, 5 S. W. 719; Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254.

"Why a parent, or one who loves another," says Mr. Justice Miller, "and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of the future, and even his own incapacity for selfprotection, should not be permitted to do so, is not readily perceived." Nichols v. Eaton, 91 U. S. 716, 727, 23 L. Ed. 254.

"A man may have a son so fallen into vicious habits as to be utterly useless. That son may have a wife and children whom he entirely

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