favor of the person named.29 And restraints upon alienation which might otherwise be void may be generally rendered effective through the medium of a trust declaring that the beneficiary shall have no interest in the fund itself or power to assign it, and no power to anticipate or assign the income therefrom, but that it shall be applied solely for his own support or that of his family.30 But where a fund is so bequeathed in trust that the 133 Mass. 170, 172, 43 Am. Rep. 504. 1 In an English case in point, certain freeholds and leaseholds were devised to trustees, to the use of one for life with remainder over to his children, but with the proviso that the life estate should be forfeited and the remainder at once take effect should the life tenant charge or encumber the property. The life tenant charged his estate, and although the mortgagee shortly thereafter, hearing of the condition and before he had claimed or taken any benefit under the charge, repudiated the security, obtaining another security in its stead, it was held that the estate was forfeited, and that, too, notwithstanding there being no remaindermen to take under the gift over.-Hurst v. Hurst, L. R. 21 Ch. Div. 278; Weller v. Noffsinger, 57 Neb. 455, 461, 77 N. W. 1075; Clute v. Bool, 8 Paige Ch. (N. Y.) 83; Wallace v. Campbell, 53 Tex. 229, 234; Garland v. Garland, 87 Va. 758, 763, 24 Am. St. Rep. 682, 13 L. R. A. 212, 13 S. E. 478. legatee may compel the payment of the entire corpus into his own hands, no condition for the purpose of exempting it from the claims of creditors can be upheld.31 Where the legal title in fee to real property is vested in a trustee, not under a mere passive trust with no duty except to convey to the persons ultimately entitled, but under an active trust requiring the continuance of the legal title in the trustee in order to enable him to perform his duties, the cestui que trust, prior to a conveyance or distribution of the property, has only an equitable interest in the testator's estate and no title to any specific part of the property.32 In such a case, unless otherwise specially granted by statute, a judgment creditor of the cestui que trust has no lien against the interest of his debtor.38 This matter is regulated by statute in some jurisdictions. Under the Kentucky statute, although the will may expressly exempt the testamentary gift from the claims of creditors, nevertheless liability is imposed. But the rule does not apply where the trustee has discretionary power to withhold all payments and the beneficiary is divested of all interest where the creditors attempt to reach the fund.35 In Michigan, surplus income not required for the support of the beneficiary may be reached 31 Hallett v. Thompson, 5 Paige Ch. (N. Y.) 583. 32 Potter v. Couch, 141 U. S. 296, 319, 35 L. Ed. 721, 11 Sup. Ct. 1005. 33 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. 34 Rudd v. Hagan (Rudd v. Van der Hagan), 86 Ky. 159, 5 S. W. 416. 35 Bland's Admr. v. Bland, 90 Ky. 400, 29 Am. St. Rep. 390, 9 L. R. A. 599, 14 S. W. 423. See, also, Bull v. Kentucky National Bank, 90 Ky. 452, 457, 12 L. R. A. 37, 14 S. W. 425. by creditors.36 Likewise, in New York, surplus income not necessary to maintain the beneficiary and those legally dependent upon him, is subject to the claim of creditors;37 and the fact that the trustee has discretion as to the payment of income does not change the rule.38 § 1084. As to Necessity of Provision Terminating Estate in Event of Attachment: English Decisions. The rule of the common law is that a man can not attach to an absolute grant of property a condition that it shall not be alienated, since such condition is repugnant to the nature of the estate granted. By such a condition the grantor undertakes to deprive the grantee of the right which is a legal incident of the property, and inalienability is deemed to be against public policy.39 The reason of the rule, however, does not apply to transfers of property in trust. Where the trustee takes the whole legal title to the property with power of alienation and the cestui que trust takes the whole legal title to the income, both principal and income are alienable. It has been held in England that this quality of alienability of income, and consequent liability for debt, is so inseparable from the estate that no provisions, however expressed, which do not operate as a cesser or limitation of the estate itself, can protect it from the debts of the cestui que trust.40 36 Spring v. Randall, 107 Mich. 103, 64 N. W. 1063. 37 Dittmar v. Gould, 60 App. Div. 94, 97, 69 N. Y. Supp. 708. 38 Sherman v. Skuse, 45 App. Div. 335, 60 N. Y. Supp. 1030; affirmed, 166 N. Y. 345, 59 N. E. 990. 39 Coke Litt. 223a; Blackstone Bank v. Davis, 21 Pick. (38 Mass.) 42, 32 Am. Dec. 241. 40 Brandon v. Robinson, 18 Ves. Jun. 429; Rochford v. Hackman, 9 Hare 475; Green v. Spicer, 1 Russ. & M. 395; Snowdon v. Dales, 6 Sim. 524; Trappes v. Meredith, L. R. 9 Eq. 229; Rippon v. Norton, 2 Beav. 63. The English authorities are not harmonious. It has been said that although a life interest may be expressed to be given, it may be well determined by an apt limitation over.41 It has been held that a limitation over is not essential to the termination of the life interest. In Rochford v. Hackman,12 the vice-chancellor observed, “that I do not understand the case of Dickson's Trust,43 to have decided that the life interest would not be well determined by a proviso for cesser, though not accompanied by a limitation over, and that I do not think that any such rule is to be collected from the cases. I think, indeed, it would be difficult to hold that any greater effect can be due to the limitation over than to the express declaration of the testator that the life interest should cease." But it is necessary that the testator clearly express the intention that the estate given shall cease upon the happening of the specified event. If it is doubtful whether the intent was to limit the estate or to restrict 41 Kearsley v. Woodcock, 3 Hare 185; Rochford v. Hackman, 9 Hare 475, 480; Wilkinson v. Wilkinson, 3 Swanst. 515; Cooper v. Wyatt, 5 Madd. 482; Yarnold v. Moorhouse, 1 Russ. & M. 364; Martin v. Margham, 14 Sim. 230; Brandon v. Aston, 2 You. & C. Ch. 24; Churchill v. Marks, 1 Coll. C. C. 441. 429 Hare 475, 481. 43 1 Sim. N. S. 37. 44 Rochford v. Hackman, 9 Hare 475, 481, citing Dommett v. Bedford, 6 Term Rep. 684, distinguishing Brandon v. Robinson, 18 Ves. Jun. 429. There may, however, be a “limitation to a man, not of his own property, but of the property of another, until he shall attempt to alienate or become bankrupt. It is settled that such a limitation is good with reference to a life estate; but there is no express authority, so far as my memory serves me, in which the point has been decided that a limitation in fee to a man until he shall alienate or become bankrupt is good. As far as the case before me is concerned, I do not think it will be necessary for me to determine the exact point."-In re Machu, L. R. 21 Ch. Div. 838, 842. alienation, the latter is adopted since the restriction, being repugnant to the estate granted, is declared void and thus eliminated.+5 § 1085. The Same Subject: American Decisions. The English rule has been adopted in some jurisdictions in these United States,16 while in others it has been rejected, it being held that the donor of property in trust may provide that the income shall not be alienable nor subject to be taken for debt.*7 The weight of authority in America is that no principle of public policy is violated to permit a testator to give a beneficiary merely a qualified interest in the income of a trust fund and thus provide against his improvidence or misfortune. Creditors are not deceived since by the exercise of proper diligence they can ascertain the nature and extent of the estate. It is merely such a danger as might arise from any false appearances. The general American rule is that the author of a trust may direct that the beneficiary shall receive only the income of the property with the restriction that the interest of the beneficiary shall not be assignable and shall not be subject to the claims of his creditors; and that this result may be reached by direct provisions so that the creditors have not the right of attachment or execu 45 Wilkinson v. Wilkinson, Coop. 259; Lear v. Leggett, 2 Sim. 479; Whitfield v. Prickett, 2 Keen 608; Graham v. Lee, 23 Beav. 388; Cooper v. Wyatt, 5 Madd. 482. 46 McKinster v. Smith, 27 Conn. 628; Dick v. Pitchford, 21 N. C. 480; Mebane v. Mebane, 36 N. C. 403; Tillinghast v. Bradford, 5 R. I. 205; Heath v. Bishop, 4 Rich. 47 Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254; Hyde v. Woods, 94 U. S. 523, 24 L. Ed. 264; Pope's Exrs. v. Elliott, 8 B. Mon. (47 Ky.) 56; Rife v. Geyer, 59 Pa. St. 393, 98 Am. Dec. 351; White's Exr. V. White, 30 Vt. 338. |