tion instead of indirectly reaching the same result, as under the English decisions, by a provision for the determination of the estate or a limitation over in the event of insolvency or attachment, or by giving the trustees the discretion as to paying the income. Although a debtor's property may be subject to the payment of his debts, this does not subject the property of a donor to the same obligations.48 48 Nichols v. Eaton, 91 U. S. 716, 725, 23 L. Ed. 254; Seymour v. McAvoy, 121 Cal. 442, 443, 41 L. R. A. 544, 53 Pac. 946; Sherman v. Havens, 94 Kan. 654, Ann. Cas. 1917B, 394, 146 Pac. 1030; Steib v. Whitehead, 111 Ill. 247; Roberts v. Stevens, 84 Me. 325, 331, 17 L. R. A. 266, 24 Atl. 873; Maryland Grange Agency v. Lee, 72 Md. 161, 19 Atl. 534; Broadway National Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504; Lampert v. Haydel, 96 Mo. 439, 446, 9 Am. St. Rep. 358, 2 L. R. A. 113, 9 S. W. 780; Overman's Appeal, 88 Pa. St. 276, 284; Moore's Estate, 198 Pa. St. 611, 48 Atl. 884; Jourolmon v. Messengill, 86 Tenn. 81, 100, 5 S. W. 719; Wallace v. Campbell, 53 Tex. 229; Wales' Admr. v. Bowdish's Exr., 61 Vt. 23, 4 L. R. A. 819, 17 Atl. 1000; Garland v. Garland, 87 Va. 758, 24 Am. St. Rep. 682, 13 L. R. A. 212, 13 S. E. 478. Under a statute providing for the subjection of beneficial interests to the payment of the beneficiary's debts, if a fund is devised to trustees with directions to pay the income to testator's son during his life, free from the claims of creditors, and with further directions that a court of last resort shall at any time determine that the income is liable to be subjected to the payment of the son's debts, then the trustees shall pay it to the son's wife for her separate use, income which accrues prior to a decision by a court of last resort authorizing the application is applicable to the payment of the son's debts, but not that which accrues after such decision.-Bull v. Kentucky National Bank, 90 Ky. 452, 12 L. R. A. 37, 14 S. W. 425. Where a testator devises land in trust "for the use and benefit of my three sons, in equal shares, so long as they all may live, with power to use and enjoy equally the rents, issues and profits thereof during their natural lives," adding, "my object in making the foregoing disposition of my property, and in attaching the limitations aforesaid, is to secure to my children a certain annual income beyond the accident of fortune and bad management on their part; and with this end in view, to take away from them the power of dis § 1086. Necessary Incidents of Spendthrift Trusts. The creation of a spendthrift trust necessarily requires that the legal title be vested in a trustee. This trust, however, must be an active one, not a mere passive trust such as may be executed under the Statute of Uses. Further, the benefit conferred on the cestui que trust must be limited to income; he must take no estate which he can alienate or to which he has the right of possession.49 If the cestui que trust is given an absolute interest in the property or the right to occupy the property and to receive the profits thereof, or if the gift to the beneficiary is absolute except that it is conditional that it shall not be subject to his debts, no spendthrift trust is created.50 posing of the same, or of creating any lien thereon, or of making the same liable in any way for their debts," such limitation on the disposition of the income is valid, and not void as being in restraint of alienation.-Lampert v. Haydel, 96 Mo. 439, 9 Am. St. Rep. 358, 2 L. R. A. 113, 9 S. W. 780. 49 Lear v. Leggett, 2 Sim. 479; Broadway National Bank V. Adams, 133 Mass. 170, 43 Am. Rep. 504; Kingman v. Winchell, (Mo.) 20 S. W. 296; Howard v. Howard, (Mo.) 184 S. W. 994; Kessner v. Phillips, 189 Mo. 515, 524, 107 Am. St. Rep. 368, 3 Ann. Cas. 1005, 88 S. W. 66; Upham v. Varney, 15 N. H. 462; Ehrisman v. Sener, 162 Pa. St. 577, 29 Atl. 719. 50 Potter v. Merrill, 143 Mass. 190, 9 N. E. 572; Maynard v. Cleaves, 149 Mass. 307, 21 N. E. 376; Smeltzer v. Goslee, 172 Pa. St. 298, 34 Atl. 44; Young v. Easley, 94 Va. 193, 26 S. E. 401. A deed which conveys an absolute estate in fee simple to the grantee and gives him the right of possession and of managing and controlling the property and of receiving the whole income thereof without let or hindrance and of the unlimited enjoyment of the same, and neither appoints a trustee nor creates a trust estate, falls short of the requirements of the rule as to the crea tion of spendthrift trusts, although the conditions of the deed are that the property shall not be liable for any of the debts of the grantee who shall have no power to sell, encumber, or dispose of said property during that period except by last will and testament.-Kessner v. Phillips, 189 Mo. 515, 107 Am. Where the language of a bequest of income for life is silent on the subject, it must be held that the life tenant has a power of assignment, for to hold otherwise would be importing words into the will and imputing to the testator an intention which he has not expressed. Such income therefore is subject to the rights of creditors.51 In order to create a spendthrift trust it is necessary that the cestui que trust be restricted of the power of alienation and that the property be not liable for his debts. The provisions of the will properly construed must meet these requirements.52 A provision that all legacies and bequests are to be paid in person to those entitled to receive them and in no way to be subject to attachment for any debt or other obligation whatsoever, nor subject to any order of any kind, creates an effective spendthrift trust with complete immunity from attachment as to all legacies and bequests to which it is entitled to apply.53 St. Rep. 368, 3 Ann. Cas. 1005, 88 S. W. 66. A condition in an absolute devise of property that it shall never be subject to any liability, attachment, judgment, от execution against the devisee is void.-Van Osdell v. Champion, 89 Wis. 661, 46 Am. St. Rep. 864, 27 L. R. A. 773, 62 N. W. 539. 51 Baker v. Keiser, 75 Md. 332, 339, 23 Atl. 735; Sherman v. Havens, 94 Kan. 654, Ann. Cas. 1917B, 394, 146 Pac. 1030. 52 Sanger v. Rovello, 173 Fed. 1022, 97 C. C. A. 669; Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254; Seymour v. McAvoy, 121 Cal. 438, A will directing trustees to pay the income into his daughter's own hands and not upon any written or verbal order, assignment or § 1087. Language Sufficient to Create a Spendthrift Trust It is not necessary that the trust specifically provide that the fund be not liable for the debts of the beneficiary in order to constitute a valid spendthrift trust.54 If the testator's intention is to create a spendthrift trust, the court will uphold it without inquiring whether the beneficiary is in fact a spendthrift;55 but the intention to create a spendthrift trust must clearly appear from the language of the will.56 It need not be directly ex transfer, creates a spendthrift trust.-Anderson v. Williams, 262 Ill. 308, Ann. Cas. 1915B, 720, 104 N. E. 659. "It is my will that every payment of income or principal hereinbefore directed or devised to be made shall be made personally to the persons to whom they are devised or upon their order or receipt in writing, in every case free from the interference or control of creditors of such persons, and never by way of anticipation, or assignment," created a valid spendthrift trust. - Boston Safe Deposit & Trust Co. v. Collier, 222 Mass. 390, 111 N. E. 163. 54 Wallace v. Foxwell, 250 Ill. 616, 50 L. R. A. (N. S.) 632, 95 N. E. 985; Hoffman v. Beltzhoover, 71 W. Va. 72, 76 S. E. 968. 55 Wagner v. Wagner, 244 Ill. 101, 18 Ann. Cas. 490, 91 N. E. 66; Anderson v. Williams, 262 Ill. 308, Ann. Cas. 1915B, 720, 104 N. E. 659; O'Hare v. Johnston, 273 Ill. 458, 113 N. E. 127; Baker v. Brown, 146 Mass. 369, 15 N. E. 783. 56 Dieke v. Dieke, 182 Ill. App. 13; Sears v. Choate, 146 Mass. 395, 4 Am. St. Rep. 320, 15 N. E. 786. In Maryland, in Baker v. Keiser, 75 Md. 332, 23 Atl. 735, the court says: "Without importing words into that will which are not there, and imputing an intention to the testator of which he has given no intimation by any verbal expression, we can not say that the income was not and is not assignable by the life tenant; and if it is, there was error in holding it to be beyond the reach of creditors. Any other construction of this will and ruling in this case would be in effect saying that all life estates of like character, given in trust, are incapable of being alienated. This court went as far as they could in Smith v. Towers, 69 Md. 77, 9 Am. St. Rep. 398, 14 Atl. 497, 15 Atl. 92, to effect the intention of the testator which was so expressly declared; but proper adherence to the policy of the law in the state will not allow the extension of the doctrine of the Towers case beyond the lim pressed, but may be implied from the general intention of the testator, in the light of all provisions and circumstances.57 Where, however, there is nothing in the will to indicate a restraint on alienation and no discretion given the trustee as to the payment of income or principal, an expression of doubt by the testator as to the cestui que trust settling down to business or as to whether he would be able to take care of himself, or similar expressions, do not indicate an intention to create a spendthrift trust, and should the testator appoint such beneficiary as one of his executors, the idea of a spendthrift trust would be further removed.58 It is not necessary that the cestui que trust be denominated in the will as a spendthrift or that the tes itations of that decision, nor to a case not falling clearly within its reasons and reasoning; and this case does not." On the other hand, it has been held that a widow's right of support out of the income does not give her such an interest in the income as to render it liable to the claims of creditors. Slattery v. Wason, 151 Mass. 266, 21 Am. St. Rep. 448, 7 L. R. A. 393, 23 N. E. 843. Where a will created a trust for the benefit of the testator's son, directing the trustee to pay over the income at stated intervals to the cestui que trust, or to whomsoever he in writing might designate, it was held not to create a spendthrift trust, because the cestui que trust had the right of control of the income while in the hands of the trustee.-Decker v. Poor Directors, 120 Pa. St. 272, 13 Atl. 925. A testamentary gift as follows: "I deposit in the hands of my executors, for the benefit of my daughter, F. C. Y., during her natural life," certain named property, "to be paid to her for her support," held not to create a spendthrift trust, the language showing only the motive of the gift.-Young v. Easley, 94 Va. 193, 26 S. E. 401. 57 Pope's Exrs. B. Mon. (47 Ky.) 56; Roberts v. Stevens, 84 Me. 325, 17 L. R. A. 266, 24 Atl. 873; Baker v. Brown, 146 Mass. 369, 15 N. E. 783; Wales' Admr. v. Bowdish's Exr., 61 Vt. 23, 4 L. R. A. 819, 17 Atl. 1000; Hoffman v. Beltzhoover, 71 W. Va. 72, 76 S. E. 968. V. Elliott, 8 58 O'Hare v. Johnston, 273 Ill. 458, 113 N. E. 127. |