
    Jourolmon v. Massengill.
    
      (Knoxville.
    
    October 26th, 1887.)
    1. Chancery Pleading and Practice, lies adjtuiicata. Must be pleaded and proved.
    
    In equity, res adpidicata, to bar a hearing on the merits, must be set up by proper averments, either in the bill or answer, or by separate plea, and must be proved.
    Case cited and approved: Turley v. Turley, 85 Tenn., 252. (Id., 77.)
    2. Same. Same. How pleaded.
    
    
      Res adjudicata is not sufficiently pleaded in equity, unless so much of the former proceedings are set out as will clearly show that the issues in the former and in the pending case are identical.
    Cited : Story on Equity Pleading, ? 791.
    3. Same. Same. Decree overruling demurrer. Dismissal.
    
    A decree of this Court overruling a demurrer to a bill and remanding the cause, followed by a dismissal without further proceedings in the Chancery Court, will not bar a hearing upon the merits in a subsequent litigation between the same parties involving the same subject-matter and issues. Such decree decides only that the bill has on its face sufficient equity to require an answer.
    Case cited and approved: Battle v. Street, 85 Tenn., 282.
    
      4. Supreme Court Practice. Record. Transcript in another case. Code, (M. &• V.), \3890, construed.
    
    A record of this Court, introduced as evidence on the hearing of a cause in an inferior Court, must, on appeal of such cause, be copied into the transcript, or it will not, without consent of parties, be regarded on the hearing in this Court. Section 3890, (M. & V.) Code, has no application in such case.
    Code cited : 23890 (M. & V.); 317x (T. &S.).
    5. Will. , Construction. Devise creating a valid, active trust for a person sui juris, and excluding his creditors.
    
    A testator devised his lands, subject to charges, to his son. By a codicil he provided that these lands should “be vested in A as trustee, for the use and benefit of my said son ; and no part of the same is to be subject to execution, or other legal process, for any debt or liability he may have contracted, or may hereafter contract; nor is he to sell the same, nor any part thereof, but may use the rents and profits for his support and that of my wife; but he shall have the right to dispose of the same by last will and testament.” Both the will and codicil were duly recorded.
    
      Held-. That this codicil created a valid and legal active trust, for the support of testator’s son during life, out of the rents and profits of the land, which was not affected by the death of testator’s widow, and was not within the reach of the son’s creditors.
    Case cited and overruled: Turley v. Massengill, 7 Le'a, 353 (construing this will).
    6. Same. Same. Testator s intention controls.
    
    In the construction of -wills the testator’s intention rules, and, when ascertained, will control the technical terms used; not so, however, as to deeds.
    
    Case cited and approved: Smith v. Thompson, 2 Swan, 389.
    7. Trusts and Trustee. Trustee's title. Measure of its extent and duration.
    
    A trustee takes and retains that exact quantity of interest, and no more, in the trust property, both as to extent and duration, which is requisite for the. proper and efficient execution of the powers and duties conferred upon him, and to effectuate the purposes of the trust. ■
    Cases cited and approved: Ellis v. Fisher, 3 Sneed, 223 ; Gardenhire v. Hinds, 1 Head, 409; Hooberry v. Harding, 3 Tenn. Ch., 677.
    (See 9 Lea, 25 ; 85 Tenn., 646.)
    
      8. Same. Same. Case in judgment.
    
    Under the provisions of the will in this case, the duty to protect the corpus of the estate from alienation, and both the corpus and income from subjection to the devisee’s debts,-and to see the income properly applied to the support of the son and widow of testator during their lives, rested by necessary implication upon the trustee; and therefore it was essential that the legal title to the property should vest and remain in the trustee.
    9. Same. A devise for support of person sui juris, excluding his creditors and power of alienation, valid.
    
    An active trust, created by will duly recorded, for the support of testator’s widow and son (both sui juris), is valid and legal, although its chief purpose was to protect the property against the debts and contracts of the son.
    
    The creation of such trust is not contrary to sound public policy, violates no law of property, is approved by justice and humanity, and in this State has legislative sanction.
    Code cited: 5026-5029 (M. & V.); £#4283-4286 (T. & S.).
    Cases cited and approved: Gardenhire v. Hinds, 1 Head, 409; Griffith v. Dewitt, Thompson’s Cases, 188; Nichols v. Levy (Nashville, 1859); Branner v. Rankin (Knoxville, 1887); Hooberry v. Harding, 3 Tenn. Ch., 677; 5 Wall., 441; 1 Otto, 716; 4 Otto, 523; 133 Mass., 171 ; 10 Gratt., 336; 30 Vt., 338; 21 Conn., 1; 52 Cal., 326; 7 Watts, 547; 47 Penn. St., 113; 59 Penn. St., 393; 64 Penn. St., 207; 8 B. Mon., 56; 35 N. Y., 361 ; 9 Piare, 475; 3 Beav., 20.
    Cited and overruled: Turley v. Massengill, 7 Lea, 353; Hooberry v. Plarding, 10 Lea, 392.
    10. Chancery Jurisdiction. To compel discovery. Section 3026, {M. Sf V.) Code, construed.
    
    Code, \ 5026 (M. & V.), must be construed as taking from the Chancery Courts all jurisdiction to compel discovery by a debtor of his property not leviable at law in the cases therein excepted.
    
    Code cited : £ 5026 (M. & V.) ; £ 4283 (T. & S.).
    Cases cited: 6 Yer., 1S6; Meigs, 364; 5 Cold., 633; 35 N. Y., 366.
    Cases cited and overruled: Turley v. Massengill, 7 Lea, 353; Hooberry v. Harding, 10 Lea, 392.
    11. Stare Decisis. Applied in overruling recent decisions and restoring former ones.
    
    When a decision of recent date, by a divided Court, has been followed but once; has met the strong disapproval of the profession ; has overruled the construction of a statute which had prevailed and been a rule of property for fifty years, upon the authority of the highest courts, without noticing the former decisions; has unsettled the titles to large masses of property based on that construction of the statute J such decision will be overruled, especially if against the weight of American authority and contrary to sound public policy.
    Cases cited and approved: Barton’s Lessee v. Shall, Peek, 239; Sherfy v. Argenbright, I Heis., 128.
    PROM GRAINGER.
    Appeal from Chancery Court of Grainger County. C. J. St. John, Oh.
    Henderson & Jourolmon and Lucky & Yoe for Complainant.
    J. T. & J. K. Shields for Respondents.
   Lurton, J.

Complainant Jourolmon, claiming title under a Sheriff’s deed, brings this hill to recover possession of certain lands described in said deed. The property was sold as the property of defendant, Massengill, to satisfy several judgments against him, and was purchased at execution sale by Jourol-mon, as trustee, for the several execution creditors. The judgments, levies, and sale upon which the Sheriff's deed depends are all regular, and complainant will be entitled to a decree, provided the defendant, Massengill, had such title as was subject to levy and execution sale. Whatever interest Mas-sengill lias in said property he took under the will of his father, Robert Massengill, who died in 1866. This will was duly admitted to probate, and the clauses bearing upon the title to the lands now in controversy are as follows:

“To my son, S. S. Massengill, I give all the remainder of my estate, both real and personal, charging him with the payment of all my just debts, and solemnly enjoining upon him to take care of and support his mother on the home farm, and to observe toward her in the future the same tenderness and affection which has so signally marked his conduct in the past. ■ I also request of him that he will not sell the home tract of land, or any part thereof, but that he will keep it as a home for himself and those who are to come, after him. I make no provision for my beloved wife, except that she shall reside in the old family mansion with my son Sterling, feeling doubly confident that his kindness and generosity will amply supply all her wants.”

On July 81st, 1864, the testator made a codicil in these words:

“My will is that all the property of every kind bequeathed to my son, S. S. Massengill, in the sixth clause of my will, be vested in Dr. John W. Thornburg, as trustee, for the use and benefit of my said son; and no part of the ' same is to be subject to execution or other legal process for any debt or liability he may have contracted, or may hereafter contract. Nor - is he to sell the same, nor any part thereof, but may .use the rents and profits for his support and that of my wife, E. II. Massengill; but he shall have the. right to dispose of the same by last will and testament.”

Dr. Thornburg resigned as trustee some years since, and defendant, Branner, was appointed in his room and stead. The contention of complainants is, that the trust attempted to be created by the codicil to the will of liobert Massengill is void, and that an absolute legal title in fee-simple vested in S. S. Massengill.

In support of this proposition complainants contend that heretofore, in another litigation between ~W. H. Turley, one of complainants, and these same defendants, such a decree was pronounced by this Court as now constitutes an adjudication that the trusts of the will were void, and the .lands subject to levy and sale; that "W. IT. Turley is one of the judgment creditors, whose execution was levied upon this land, and one of the creditors for whom the land was purchased by Jourolmon; and that, regardless of the validity of the sale made for other execution creditors, the title, by operation of the former adjudication, passed to complainant, Jourolmon, as a purchaser under the sale to satisfy the judgment of said Turley.

The plea of res adjudícala, in equity, must be distinctly set out either in the bill or answer, or by separate plea. Unless it is pleaded it cannot be relied upon in the proof. Turley v. Turley, 85 Tenn., 252.

When properly plead it must then be proven. The hill does allege 'that W. H. Turley did file his original hill as a judgment creditor against Massengill and Branner, seeking a construction of the will of Robert Massengill, and , to subject the interest of said Massengill to satisfaction of said judgment. It charges that the defendant answered and demurred in the same pleading, and the demurrer, coming on to be heard, was overruled by the Chancellor; 'that an • appeal to this Court was allowed from the decree overruling the demurrer, and that the decree of the Chancellor upon the 'demurrer was affirmed, the Supreme Court holding and decreeing “that the said Massengill took an estate under said will which was leviable by execution at law and subject to the payment of his debts, and said cause was remanded for further proceedings.” The bill does not state what further proceedings were had after the cause was remanded, but from the bill it is inferrable that no decree was ever had upon the merits, for the complainants conclude their allegations upon the matter of the former decree by the statement that Turley, fearing that the description of the land he sought to subject to payment of his debt was too slight and indefinite to fix a superior lien upon it as against other creditors, sued out execution from the Circuit Court and had the land levied upon and sold at Sheriff’s sale. It will be seen that the complainant does not set forth either the bill, demurrer, or decree so that it may be seen that the same point was then in issue, but contents himself with stating what he deems the substance of the record. “Upon a plea of a former decree so much of the former bill and answer must be set forth as is necessary to show that the same point was then in issue.” Story Eq. Pleadings, Section 791.

If, however, the pleader had filed the record upon which he relies as an exhibit to his bill, it would be a sufficint compliance. Put there is no sort of conformity to this simple and manifestly reasonable rule of pleading, where a hearing upon the merits is sought to be avoided by a plea of. former decree; and we are compelled to hold that the plea of res adjudicate/, is not well plead.

If these allegations are treated as sufficient to allow proof of a former decree, and reliance upon same as an adjudication, no such proof is made. The decree shows that 'upon the hearing the record in said cause of Turley v. Massengill was read, but the transcript contains only such part of said record as was made after the cause was remanded by this Court. Neither the bill, or demurrer, or answer are parts of the transcript. Tlie Clerk, by this decree, was directed to include in the transcript only such parts of the record in the case of Turley v. Massengill as were not included in the former transcript of said cause now in ’ Supreme Court.” There is no agreement that said former transcript may be treated as a part of the present transcript, and without such agreement we cannot look to the other transcript. Section 3890 of the Code (M. & Y.) only makes a transcript in this Court part of another when a cause conies again to this Court after being once remanded. This is not a second appeal in the case of Turley v. Massengill, and hence the transcript in that case cannot be looked to by us, or treated as a part of this record, same not being a part of the present transcript, and there being no agreement that it shall he so treated.

That part of the record of the cause of Turley v. Massengill properly made a part of the present transcript shows nothing relating to this question beyond a decree in these words:

“In this cause the complainant dismisses his bill. It is therefore decreed that complainant’s bill he dismissed. But it appealing to the Court that complainant has obtained substantial relief under his bill, it is decreed that the defendants, S. S. Massengill and B. M. Branner, pay all the costs of this cause, for which an execution may issue.”

This is the only decree either of the Chancery Court or Supreme Court before us, and just how the complainant had- obtained substantial relief is not to be discovered.

If we look to the answer of Defendant Mas--sengill to see if there are such admissions as make-proof unnecessary, we find that while he admits the filing of a bill by said Turley, and that a demurrer was overruled by the Chancellor, and, upon appeal being taken from the decree overruling demurrer to the Supreme Court, the decree was affirmed, and the cause remanded to the Chancery Court for further proceedings, yet the answer at the same time insists that the bill to which the demurrer was filed did not state fully the facts, and made many erroneous statements, nor does it admit or undertake to state the character of the demurrer.

The most that we can learn from the bill, answer, and evidence is that there was a litigation between one of complainants and these defendants, which involved the title of S. S. Massengill under the will of Kóbert Massengill to the land now in controversy; that a demurrer was interposed by the defendants, which was overruled by the Chancellor, and upon special appeal from the decree upon the demurrer that the Supreme Court affirmed the decree overruling demurrer, and remanded the cause for further proceedings; that Turley, instead of proceeding with that litigation and obtaining a final decree upon the merits, dismissed his bill and proceeded upon his execution at law.

Ordinarily a decree of this Court overruling a demurrer and remanding a cause to be proceeded with is not an adjudication of anything more than that there is sufficient equity upon the face of the bill to require an answer. Battle v. Street, 85 Tenn., 282. Certainly no such decree is either plead or proven as prevents us from determining this cause upon its merits.

This brings us to the question as to whether the interest of S. S. Massengill in this land was a legal or an equitable estate. If the former, then it was subject to execution; if the latter, then it was not. This question depends mainly upon the construction of the will of Robert Massengill lfere-tofore quoted in the earlier part of this opinion. The contention of complainants is that no duty or control is imposed upon the trustee, and that it is therefore a dry trust; that, being a dry trust, the trustee would take no greater title than the necessities of the trust demand, and that from this premise the conclusion follows that no title whatever vested in him, but that the legal title passed to the beneficial owner. Let us examine this position and see whether the trust be a mere dry trust, or what is known as an active trust. The distinction between a technical dry trust and an active trust is sometimes not very obvious. The statute of uses— Henry VIII. — has never been held to apply to active trusts, and the courts of equity, both in this country and England, in order to carry out the intent of testators and settlors, have not been slow, where such intent of the creator of the trust was not in conflict with public policy, to sustain numbers of trusts which, upon slight inspection, might be. deemed dry, and therefore executed by the statute. It has never been determined whether this statute was in force in this State, and this for the reason, probably, that, without regard to the statute, this Court has adopted the principle that a trustee takes exactly that quantity of interest which the purposes of the trust require.

In the leading case of Ellis v. Fisher, 3 Sneed, 223, this Court said:

^ Where real estate is devised to trustees and their heirs, to the use of or in trust for another and his heirs, the question whether or not the trustees take the legal estate depends chiefly whether the testator has imposed on the trustee any trust or duty, the performance of which requires that the estate shall be vested in them. If so, an estate co-extensive with the duties to be performed will vest in the trustees; if not, the legal ownership will pass over to the beneficial owner.”

This rule is identical with the rule adopted by the courts of England, and of such States of this Union as have adopted the statute of uses to determine whether or not a trust is or is not a dry trust, and therefore executed by the statute, or an active trust and not within the purview of the statute. The statute of 29 Charles II., Chapter 3, Section 10, which subjected estates held in trust for the debtor to execution sale, has been held to be in force in this State. Shute v. Hardee, 1 Yer., 1. Though, without regard to this statute, the same result would probably have been reached where the trust was a dry or inactive one. In other words, if a trust be such an one as under the statute would become executed, and by operation o.f the statute vest the legal title in the beneficial owner, then, without regard to either statute, by operation of this rule concerning the extent of the title of the trustee, the same result would be brought about. But if any trust or duty be imposed upon the trustee, either expressly or by implication, then the trust will not be a dry one. Perry on Trusts, Sections 306 and 307; Hooberry v. Harding, 10 Lea, 392.

To determine the extent of the title .vested in the trustee we must look to the intent, object, and purpose of the testator. In trusts created by will much.mpre effect will be given .to the intent of the testator than where the trust is created by deed. In the latter case an importance will always be attached to technical terms which they will not be allowed to have in a will. On the other hand, the intent of a testator rules the construction of a will, and is stronger than the technical terms employed. Smith v. Thompson, 2 Swan, 389; Perry on Trusts, Sections 306, 307.

What was the intent of Robert Massengill in making this devise to a trustee? The original purpose, as shown by the sixth clause of his will, quoted above, was to give this son a fee-simple estate, charging upon him the payment of the debts and the support of the widow of the testator. He also expressed a strong wish that the home place — the land now in controversy — should not be sold, but that it should “be kept for a home for himself and for those who should come after him.” He made no provison for his wife at all, entrusting her support and care, in words amounting to a precatory trust, to this son.

This will was written in December, 1861, but in 1864 we find him concerned about the future support of his widow and son. This was doubtless aggravated by the condition of the country, and we find it manifested by the codicil executed that year — being the one now under consideration. He was no longer willing to intrust the care and support of his wife alone to the good will and good faith of the son. The gratification of his strong wish that the home place should not be sold, but kept as a home for his widow and his son, “ and for those who should come after him,” was no longer to depend upon the willingness of his son to satisfy this desire. The support of the son himself must not be intrusted to the uncertain results of the flagrant strife then raging and promising an indefinite continuance. To provide against his own possible misuse, as well as the misfortunes which wait upon all men, became an object of concern. The plans of the testator as to this son had undergone an entire change. The codicil plainly shows that his purpose was to provide for the support of his son and his own widow at all events and in all contingencies. To accomplish this he so alters his will by this codicil as to devise the legal estate for the life of his son. to a trustee. lie provides that the son “may use the rents and profits” for the support of himself and mother. The son is given power by last will to designate the takers of the -remainder estate, hut he should have no power to sell or use the corpus of the estate. In default of an appointment by last will, there being no other disposition made, it is clear that upon the death of the son the estate would descend to the heirs of the testator— not the heirs of the son. Einally, as the trust was for the support of the son, he declares that neither the corpus of the estate nor the rents and issues should he subject to the payment of the debts then owing or thereafter created by the son. That the interest of the son was to he limited to a support, and that to be derived from the rents and profits, without touching the corpus, is made clear by the -words, “ Ror is he to sell the same, or any part thereof, but may use the rents and profits for his support and that' of my wife.” The fact that the widow of the testator is now dead only terminates her interest in the trust, and does not at all affect the intent of the testator, which was to provide for the support of both widow and son, and rendered a trustee all the more essential. The broad devise to the trustee, contained in first part of codicil, “for the use and benefit of my son,” is qualified, and- the' character of use defined by the subsequent facts. If the devise had stopped there it could not be doubted but that it would be a drf trust, and that the legal estate would not have vested in the trustee, but would have passed to the beneficial owner.

Row the purpose of the testator being to limit the devise to the son to a support for life, out of rents' ancl profits, such purpose could not be carried out without the interposition of a trustee. If the devise had been direct to the son, of the rents and profits for life, it would have vested in him the life estáte.

“It is a cardinal principle of the law of real estate that a devise of the rents and profits, or the income of the land, is equivalent to a devise of the land itself. Such a devise is equivalent to a devise of the land for life, or in fee, according to the limitations in the will.” Davis v. Williams, 85 Tenn., 651.

If he had devised the land in fee, .and then limited the power of disposition to will, this would have been repugnant to the dignity of a fee, and the limitation would have been void. In any of the cases put, the estate would have been a legal estate, and subject to levy and sale at law. Manifestly, then, there was a necessity for a trustee if the purpose of the testator should be carried out, that the rents and profits should go alone to the support of his son, and that they should not be subject to alienation or liability to legal process. To prevent the use of the corpus of the estate, and to guard the rents and profits from any other use than the support of the son and widow, the interposition of a' trustee was essential. ♦ We are not now discussing the validity of ■these puiposes, and of the limitations against liability for debts of the son. This object may be legal or illegal, but whether the one or the other, the clear purpose of the testator was that the trustee should take such a title as ■would prevent the merging of tlie legal title with, the equitable life estate; as would preserve the remainder estate for the appointees under the will of the beneficial owner for life; as would enable him to see that the rents and profits were applied to the support of the son and wife of the testator; as would prevent the alienation of any part of the corpus of the estate, and prevent the subjection of either the corpus or rents by creditors of the son. The duty to protect the corpus of the estate from alienation, or either the corpus or income from subjection by creditors of the de-visee, and the duty to see that the income was applied to the support of the son and widow during the lives of either, by necessary implication, rested upon the trustee. These were active duties, and if not void, because illegal, make the trust an active and not a dry one.

“If any agency, duty, or power be imposed on the trustee — as by a limitation to the trustee and his heirs to pay the rents or convey the estate— or if any control is to be exercised or duty performed by the trustee in applying the rents to a person’s maintenance, or in making repairs, or to preserve contingent remainders — in all these and other like eases the operation of the statute is excluded, and the trusts or uses remain mere equitable estates. So, if the trustee is to exercise any discretion in the management of the estate, in the investment of the proceeds or the principal, or in the application of the income; or if the purpose of the trust is to protect the estate for a given time, or ‘ until the death of some one, or until division, or until a request for' a conveyance is made.” Perry on Trusts, Section 805.

“Although the direction may be for the trustee to permit and suffer another person to receive the rents, yet if any duty be imposed on the trustee, expressly or by implication, the legal title will remain in them unaffected by the 'statute.” Idem., 307.

■ The case of Jlooberry v. Harding, 10 Lea, 392, is an instructive ease upon this question of what is an active trust. The trust involved in that case was held to be an active one, and the interest of the beneficial owner an equitable one, and not subject to levy of execution, though liable in equity to the debts of the • cestui que trust, because' the Court thought a trust could not be created which would shield the interest of the beneficiary from liability for his debts. The Court, in that case, clearly held that, although the interest of the beneficiary could be subjected by a court of equity to the satisfaction of the debts of the beneficial owner, yet the trust was an active trust and the interest of the beneficiary an equitable and not a legal one, and therefore not subject to execution sale. The Court also held that when the trust was one which required some act to be done or duty performed, even if the act or duty was alone for the benefit of the cestui que trust, yet such a trust would be an active one, and not within the statute of uses, nor executed in the beneficiary in this State, whether the statute of uses be in force or not.

But it is insisted that the trust in this case is one chiefly, if not altogether, for the purpose of protecting the estate of this beneficiary from his debts and contracts. If this be admitted, yet - that does not prevent it from being a special or active trust. One of the very illustrations given by Mr. Perry, and upon which he cites' a number of cabes which we have had no opportunity to examine, of a special trust, is “where the 'purpose of the trust is to protect the estate for a given time or until the death of some one.” Trusts for protection of the estates of married women during coverture against their husbands and his creditors, and the wife and her extravagance as well as her contracts, are made every day. Such trusts are sustained upon the ground that they are intended to “protect the estate” during coverture, and are hence held special and active. "We have one case where the trust was “to suffer the said Margaret Hinds and her heirs forever to enjoy the possession and profits to her and their own sole and separate use and benefit forever.” Margaret Hinds dying, leaving her husband and children surviving, it was insisted that the trust ceased upon discoverture. This Court, through Judge Wright, held that “it was just as necessary, and perhaps more so, to protect this estate after the death of Margaret Hinds against the possession and wasteful habits of the husband as it was before.” Again he said: “ The heirs might be daughters, in which event the donor continues the separate estate, and for this purpose the trust is still necessary.” Gardenhire v. Hinds, 1 Head, 409.

It is, however, insisted that while a trust to protect an estate of a married woman or infant or non compos might be good as a special trust, yet that a trust to protect the estate of a person sai juris is invalid, and that therefore this trust must fail, as the control or duty reposed in the trustee springs from -the trust to protect the estate against alienation and creditors. This brings us to the question as to the legality of this trust to protect the estate from creditors of the beneficiary ^and against alienation. The trust would be valid by common consent if the object of the trust was the protection of the estate of a married woman or other person not sui juris. Will the fact -that the object of the bounty of this donor is a person sui juris defeat what would otherwise be a valid special trust?

We have already seen that by the rule of the common law a man cannot attach to a grant or transfer of property otherwise absolute the condition that it shall not be alienated, such condition being repugnant to the nature of the estate granted. Lord Coke gives as the reason of the rule that it is absurd and repugnant to reason “ that he that Rath 'no possibility to have the land revert to him should restrain his feoffee in fee-simple of all his power to alien,” and that this is “ against the height and purity of a fee-simple.” By such a condition against alienation or liability to debt the grantor undertakes to deprive' the property in the hands of the grantee of one of its legal incidents and attributes — namely, its alienability' — which is deemed to be against public policy. But the reasons of the rule which apply with such force to fee-simple or other legal titles, do not apply in the case of the transfer of property in trust. By the creation of such a trust as the one now under consideration, the trust property passes to the trustee, with all its incidents and attributes unimpaired. He takes the legal title to the property with power of alienation, subject, of course, to the trust, and the beneficiary the whole legal title to the income at the moment it is paid over to him. The income is not therefore inalienable after it reaches the hands of the beneficiary. Broadway Bank v. Adams, 138 Mass., 171. The question as to whether the founder of a trust such as the one before us can secure the income of it to the object of his bounty by providing that it shall not be alienated by' him or be subject to be taken by his creditors, is one of profound public interest. In two very recent cases decided by our predecessors they have held that such trusts were void because contrary to public policy. Turley v. Massengill, 7 Lea, 353; Hooberry v. Harding, 10 Lea, 392.

These decisions have excited such surprise and disapproval with the profession that we are called upon in this case to reconsider the ground upon which they rest. Judge Freeman, in the first case referred to, places the invalidity of such trusts upon the ground that “such restrictions and inhibitions must be held as void, because repugnant to the estate granted, and because contrary to the letter and spirit of our statutes and laws, which make all property of a party liable for his debts, except such as is especially by those laws exempt in favor of poor persons.” He quotes the obiter of Justice Swayne in the case of Nichols v. Levy, 5 Wall., 441, a case wherein that Court sustained the validity of just such a trust because it arose in this State, and was by the statute laws of this State, as construed by the Supreme Court of this State, valid, and that such construction, was binding in such case upon that Court.

As to the first ground of objection stated, that' the restriction is repugnant to the estate granted, we have already seen that that applies to legal estates, and does not, and in the nature of things cannot, apply -where the trust is to apply the income to the support of the cestui que trust, or pay the income into the hands of such beneficiary. In either case the income, when it comes to the beneficiary, is his absolutely, and subject to alienation when it has thus come to his hands.

This only brings us back to the question as to whether there is any well-settled rule of public policy wliicli is contravened by the protection of tbe income of such, a trust from the creditors of the beneficiary, and its application to the support of the beneficiary. That the rule laid down by Judge Ereeman is supported by English authority must be conceded. The courts of that country have, in the interest of creditors, since the time at least of Lord Eldon, held “that if property is given, it must remain subject to the incidents of property, and it could not be preserved from the creditors unless given to some one else.” Brandon v. Robinson, 18 Vesey, 433. This English rule has been adopted, upon the authority of the English cases, by Mr. Story, and to a certain extent by Mr. Perry. Story’s Eq. Jurisprudence, Section 974a; Perry on Trusts, Section 386.

But the latter text writer qualifies the doctrine by the statement that certain distinctions, which he proceeds to state, must be borne in mind, to . \ wit:

“But a trust may’ be so created that no interest vests in the cestiú que trust; consequently, such interest cannot be alienated, as when property is given to trustees to be applied in their discretion to the use of a third person, no interest goes to the third person until the trustees have exercised this discretion. So, if property is given to trustees to be applied by them to the support of the cestui que trust and his family, or to be paid over to the cestui que trust for the support of himself and the education arid maintenance of his children- in short., if a trust is created for a specific purpose, and is so limited that it is not repugnant to the rule against perpetuities, and is in other respects legal, neither the trustees, nor the cestui que trust, nor his creditors or assignees, can divert the property from the appointed purposesPerry on Trusts, Section 386a, citing Rife v. Geyer, 59 Penn. St., 393, and Wells v. McCall, 64 Penn. St., 207.

This statement of the doctrine which meets with his approval we shall see is in conflict with the English cases, but is supported by so large a number of the most reputable courts of this country as to constitute what may well be termed the American rule.

The statement of the English Courts that jpower of alienation and liability to creditors are necessary incidents of ownership of property is altogether too broad, and cannot be supported. When the legal estate is vested in the owner, considerations of public policy to prevent fraud and deceit, and to facilitate the transfer of title, would operate to make the rule generally true. But it is not always true in such cases. Our exemption laws and homestead laws all relate to property, the legal title to which may be vested in the owner, and yet under such laws large masses of property are, in pursuance of a public policy, finding expression in legislation, exempt from liability for debts, and in case of the homestead, not subject to alienation by the husband alone. Public policy might, with much reason, determine that the owner of property could not. impose on Ills own property, in his own hands, and for his own benefit, any restraint upon his own power of transfer, or the quality of non-liability to his own creditors. But where no act of the owner of the property imposes the burden or restricts the liability, but it was imposed by a vendor, testator, or donor, what rule of public policy is necessarily encountered in sustaining such restrictions, even when the legal estate is vested m the owner, all questions of notice out of the way?

Such a question was presented to the Supreme Court of the United States in the case of Hyde v. Woods, 4 Otto, 523. In that case that Court held that a Stock Board may make membership therein subject to the rule, that if the member becomes insolvent, his seat may be sold for the benefit of his creditors among the other members of the Board, and the payment of the proceeds of such sale to the members are not preferences void by the bankrupt law? The Court say: “It is said that it is against the policy of the bankrupt law; against public policy, to permit a man to make in this or any other manner a standing or perpetual appropriation of his property to the prejudice of his general creditors, and it is to this point that the numerous authorities of counsel are cited. They all, however, relate to eases where a man has done with his own property, on which he himself imposed the direction, or the incumbrance which 'impeded creditors. ■ It is quite different where a man takes property by purchase or otherwise, which is subject to that direction or disposition when he receives it. It is no act of his which imposes the burden. It was imposed by those who had a right to do it, and to make it an accompaniment of any title which they gave to it. The principle here contended for by counsel was well considered in the case of Nichols v. Eaton, 91 U. S., 716.

“In that case, the mother of the bankrupt Eaton had bequeathed to him by will the income of a fund, with a condition in the trust that on his bankruptcy or insolvency the legacy should cease and go to his wife or children, if he had any, and if not, it should lapse into the general estate, and be subject to other dispositions. The assignee of the bankrupt sued to recover the interest bequeathed to the bankrupt, on the ground that this condition was void as against public policy. But this Court, on full examination of the authorities, both in England and in this country, held that the objection was not well taken; that the owner of property might make such a condition in the transfer of that which was Ms own, and in so doing-violated no creditors’ rights, and no principle of public policy.” 4 Otto, 523.

As anxious as have been the English courts in the interest, of creditors to destroy such trusts, yet even the courts of that country have more than once sustained trusts conditioned to cease upon the bankruptcy or insolvency of the beneficiary. Roch ford v. Hackman, 9 Hare, 475; and see cases cited and discussed in Lewis on Trusts, 80. And so they have held, that a direction that a trust to the first taker shall cease on his bankruptcy, and shall then go to his wife or children, was good, and that the entire interest passes to them; and they have gone to the extent even of holding that when there was a trust, the interest of which was to be jfeid over to the beneficiary during his life, but to cease upon bankruptcy, with power in such cases in the trustee to pay over if he saw fit, hut wholly in his discretion, the sum the bankrupt would have been entitled to but for such cessor, for the support of the bankrupt, was a valid limitation, and that the assignee could not recover such income. Pearcy v. Roberts, 1 M. & K., 4; Page v. Way, 3 Beav., 20; Twopenny v. Peyton, 10 Lim., 487; and Godden v. Crowhurd, 10 Lim., 487. These English cases are reviewed in an instructive manner by Judge Miller in Nichols v. Platon, 1 Otto, 716. This Court has seemingly already gone further than the English courts; for it seems clearly the opinion of Judge Wright that a trust for the support of husband and wife, created by the wife out of her property before marriage, and not to he liable for the debts and contracts of the husband, was valid, and the husband had no-interest which could be reached by his creditors. Griffith v. DeWitt, Thompson’s Tennessee Cases, 188. This was clearly held by us at a former day of this term in the case of Rankin v. Branner, opinion by Judge Snodgrass. We are not able to see that the creation of such a trust, whereby a testator gives to the object of his bounty such a limited and qualified interest in the income of a trust fund as may enable him to provide against the improvidence or misfortune of the beneficiary, violates any principles of sound public policy.

It is suggested that such trusts contravene public policy, because, should all devises and gifts be surrounded by such limitations as to their use and alienability, it would in time result in limiting the use of vast masses of property, to the general injury of commerce. This argument is bottomed upon an extreme and highly improbable state of facts. It would apply with equal force to the English rule; for by indirection that rule reaches the same result — non-liability to creditors and non-alienability by means of a provision for a forfeiture upon insolvency or attachment, and a limitation over to the wife and children of the bankrupt, or that the income shall go to the augmentation of the principal in the hands of the trustee, with power in the trustee, in his discretion, to pay to the use of the bankrupt what he was entitled to before forfeiture. Again, all such trusts must be limited in point of duration by the rule against perpetuities; and their number would naturally be limited by the undoubted preference of testators not to embarrass the free use of their bequests by restraining limitations, except when there was some strong reason for such restriction. Eor fully fifty years the law of this State was understood to permit such trusts, and yet their number is comparatively few. USTo such reason has been advanced by any court; and if such a state of affairs existed as has been suggested, the. remedy by legislation would be plain.

It does not in any way affect the creditors of the founder of the trust, as the restrictions apply only to the creditors of the donee, and of course the creditors of the donor affected by such gift could reach it upon grounds wholly independent of the limitations under consideration.

The creditors of the donee cannot be defrauded, because the property was never subject to their demands while owned by the testator. There is no just reason why that which was never their debt- or’s, and never liable to their demands,' should, merely for their satisfaction, be held liable to their claims. The argument that to invest a man with apparent wealth tends to mislead creditors, and to induce them to give credit, is not tenable. Creditors have no right to rely upon property thus held, and to give him credit upon the basis of an estate which, by the very terms of the instrument creating it, is declared inalienable and not liable for his debts. To do so would be the grossest folly. By the exercise of any sort of diligence they can ascertain the nature and extent of his estate, for the policy of our registration laws would require registration of a deed creating such trust, and if it arose under a will it would necessarily be a matter of record. This objection is well met by the Supreme Court of Massachusetts in Broadway Bank v. Adams, 133 Mass., 174, who say:

“ There is the same danger of their being misled by false' appearances, and induced to give credit •to the equitable life tenant when the will or d,eed of trust provides for a cessor or limitation over in case of an attempted alienation, .or of bankruptcy or attachment; and the argument would lead to the conclusion that the English rule is equally in violation of public policy. Ve do not see why the founder of a trust may not directly provide that his property shall go to his beneficiary with the restriction that it shall not be alienable by anticipation, and that his creditors shall not have the right to attach it in advance, instead of indirectly reaching the same result by a provision for a cessor or a limitation over, or by giving his trustees a discretion as to paying it.”

This same argument that a creditor might be misled would prove destructive to our homestead and exemption laws. Indeed, it would in some sense apply wherever a debtor is in possession or use of property he does not own, as a lessee or bailee. On the other hand, there seems to us the strongest reasons why such restrictions may be thrown around the bounty of a testator.' Considerations of humanity, of love and affection, frequently demand that the objects of our care and affection shall be provided for in such manner as that the bounty may be guarded against their im-providences as well as the misfortunes incident to life. To say that a father may not provide for the support of an unfortunate son by providing that the income shall be paid over to his support, and that it shall not.be subject to assignment or the coercion of creditors, is to say in many cases that human law is so defective that the most sacred instincts of regard and affection cannot be gratified if' that son happens to be indebted or to be the victim of evil or unfortunate habits or extravagance. We know of no rule of public policy which demands that the property of such a donor shall be subject to the debts of the beneficiary, and the creditor has no right to complain that “the owner of the property, in the exercise of his right, of absolute disposition, has not seen fit to give the property to the creditor, but has left it out of his reach.”

But let us look at the question as one of authority, and see to what extent the English rule has been adopted in this country. We have already quoted Mr. Perry on this subject. Professor Pomeroy, while touching upon the question very slightly, yet clearly, shows that in his opinion such trusts are valid. 2 Pom. Eq., Sections 982 and 1004, and especially note 4 to the latter section. He cites a California case as sustaining such a trust., Kennedy v. Mason, 52 Cal., 326. The most notable case, both by reason of the high character of the tribunal and the ability and fullness of the argument, is tbat of Nichols v. Eaton, 1 Otto, 716. The trust under consideration in that case was one created by will, whereby the income, rents, profits, dividends, and interest arising from testatrix’s estate were bequeathed to trustees for her children during life, with a restriction or limitation that if any of the beneficiaries “ should alienate or dispose of the income to which they were entitled under the trusts of the will, or if by reason o'f bankruptcy, or insolvency, or any other means whatsoever, said income could no longer be personally enjoyed,” then it was provided that the trust in behalf of such beneficiary should cease, and the share of such cestui que trust in the income should be paid over to the wife or children, if any; and if not, the income was to accumulate in augmentation of the principal fund. But there was another proviso by which, if there should be a cessor for any of the reasons mentioned, and no wife or children, that in such case the trustees might place, in their discretion, the share of such beneficiary in the income at the disposal of the beneficiary for his use and support. The controversy was chiefly over this latter clause, the assignee in bankruptcy suing for the income, there being no wife or children. The Court unanimously held the trust valid, and that the assignee could recover nothing. The Court discuss the case upon two propositions — first, that such restrictions were valid under the English decisions, and, second, that the limitations which the courts of England have placed upon the power of testamentary disposition were not sound, and ought not to be accepted. Tlie Court expressly say: “ The judgment of the Court may rest equally well on either of the propositions which we have discussed. We think the decree of the Court below may be satisfactorily affirmed on both of them.” Upon the general question of the validity of restrictions upon the use of such trusts the . Court, among other things, say:

“But while we have thus attempted to show that Mrs. Eaton’s will is valid in all its parts upon the extremist doctrine of the English Chancery Courts, we do not wish to have it understood that we accept the limitations which that court has placed upon the power of testamentary disposition of property by its owner. We do not see, as implied in the remark of Lord Eldon, that the power of alienation is a necessary incident to a life estate in real property, or • that the rents and profits of real property and the interest and dividends of personal property may not be enjoyed by an individual without liability for his debts being attached as a necessary incident to such enjoyment. This doctrine is one which the English chancery court has engrafted upon the common law for the benefit of creditors, and is comparatively of modern origin. We concede that there are limitations which public policy or general' statutes impose upon all dispositions of property, such as those designed to prevent perpetuities and accumulations of real estate in corporations and ecclesiastical bodies. We also admit that there is a just and sound policy peculiarly appropriate to tlie jurisdiction of courts of equity to protect creditors against fraud upon their rights, whether they he actual frauds or constructive frauds. But the doctrine that the owner of property, in the free exercise of his will in disposing of it, cannot so dispose of it but that the object of his bounty, who parts with nothing in return, must hold it subject to the debts due his creditors, though that may soon deprive him of all the benefits sought to be conferred by the testator’s affection or generosity, is one which we are not prepared to announce as the doctrine of this Court. If the doctrine is to be sustained at all, it must rest exclusively on the rights of creditors. Whatever may be the extent of those rights in England, the policy of the States of this Union, as expressed both by their statutes and the decisions of their courts, has not been carried so far in that direction.”

After discussing the arguments already alluded to in the earlier parts of this opinion as to the possibility of creditors being misled, the Court add:

“Nor do we see any reason in the recognized tenure and nature of property and its transfer by will, why a testator — who gives without any pecuniary return, who gets nothing of property value from the donee — may not attach to that gift the incident of continued use, of uninterrupted benefit of the gift during the life of the donee. Why a parent, or one who loves another 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 fortune, and even his own improvidence or incapacity for self-protection, should not he permitted to do so, is not readily perceived. These views are well supported hy adjudged eases in the State coui’ts of the highest character.”

We have not had access to all the American cases cited hy counsel, and for the holding of some of these cases we have had to rely upon text writers and citations in other decisions. But it cannot be disputed with success that the statement is true that the great weight of authority in this country is in accord with the conclusions of the United States Supreme Court. The' Supreme Court of Massachusetts have lately had' under consideration this question, and in the case of Broadway Bank v. Adams, 133 Mass., 170, they held hy a unanimous Court “that a person having the entire right to dispose of property may settle it - in trust, in favor of another with the provision that the income shall not he alienated hy the beneficiary hy anticipation, or be subject to be taken by his creditors in advance of its payment to him, although there is no cessor or limitation of the estate in such an event. The trust in that case was created by will, and a fund was placed in the hands of the executors “in trust to invest,” “and pay income thereof semi-annually to my son, Charles W. Adams,” personalty or upon his order or receipt in writing, “in either case free from the in--terference or control of Ms creditors, my intention being that the use of said, income shall not be anticipated by assignment.’’ A- bill was filed in equity by a creditor of the beneficiary, which, upon full consideration, was dismissed, the Court holding that the interest of the cestui que trust was not liable to the demands of creditors. This result was reached without regard to any statute, upon the general proposition that there was nothing in the nature or tenure of property, nor any principle of public policy, which prevented a donor from so giving his own that it should not be liable to the debts of his donee.

The courts of Pennsylvania have long rejected the English doctrine, and have sustained such trusts. Holdship v. Patterson, 7 Watts, 547; Rife v. Gyer, 59 Penn. St., 393.

In the case of Shankland’s Appeal, 47 Penn. St., 113, it was held that a devise to a son of the rents .and profits of an estate during his natural life, without being subject to his debts and liabilities, is a valid -trust, and the estate being vested in trustees the son could not alienate.

So in Connecticut it was held that it was in the power of a parent to place property in hands of trustees for the benefit of son and wife or children, with power in them to manage and apply it at their discretion, without any power in the son to interfere in that management.*, Leavett v. Brown, 21 Conn., 1.

Such trusts have been sustained in Vermont. See White v. White, 30 Vt., 338.

So in Virginia it was Reid that “there was nothing in the nature or law of property” which would prevent a testatrix from appropriating her property to the support of her poor and helpless relatives, and, said the Court, “there is nothing in law or reason which should prevent her from appointing a trustee to administer her bounty.” Nickell v. Handley, 10 Gratt., 336.

The case of Pope v. Elliott places Kentucky strongly on the side of the American rule, the Court saying that “there was nothing in the statutes of that State, or the general principles of jurisprudence, or in considerations of public policy,” which forbids the creation of such trusts. 8 B. Mon., 56.

Such trusts are supported and sustained by the courts of Yew York, and this has been so for a period of fifty years. The leading case of Campbell v. Foster, 35 N. Y., 361, refers to a number of cases sustaining such trusts. If it be said that the New York cases rest chiefly upon their statute, depriving the courts of equity of jurisdiction to sustain a creditor’s bill where the ti-ust proceeds from one other than the debtor, then we reply that we have precisely the same statute. Theirs was enacted in 1828, and in 1832 we copied and re-enacted- it.

From both reason and authority it thus appears to us that there was nothing inherent in the law or tenure of property, nor any sound principle of public policy, which interferes with the power of a testator to so guard Ms gift that it shall not he subject to the creditors of his donee. Up to 1882 there was neither decision nor statute which would have prevented such limitation upon a trust.

Ve learn from a note by the learned editor of Cooper’s edition of Tennessee Reports that the case of Erwin v. Oldham, reported in 6 Ver., 186, was argued in March, 1832, and continued under advisement until March, 1834, but that at the original argument an intimation from the Court resulted in the passage of the act of 1832. Prior to the passage of this act, it was in consequence of the decision in that certain case that Chancery Coui’ts had no inherent jurisdiction, in the absence of fraud or trust, to aid a judgment creditor in subjecting to the satisfaction of his debts, stocks, credits, and rights of action held by the debtor.

The uncertain extent of the power of the Chancery Court to aid a creditor to reach intangible personal property not subject to execution is not only shown by the case of Erwin v. Oldham, but by the subsequent case of Ewing v. Cantrell, where it was held: “The jurisdiction of the Chancery Court, under the statute against fraudulent conveyances being ancillary, namely, to remove impediments to executions at law, will be exercised only where the impediment to be removed affects things which might be reached by execution but for the impediment; never, in any case, where the property sought to be made liable in equity, could not be reached at law, even though no obstruction existed.” Ewing v. Cantrell, Meigs, 364; Graham v. Murrill, 5 Cold., 633.

These decisions, as to the jurisdiction of courts of equity, independent of the Act of 1832, and subsequent acts, make it at least doubtful whether a court of equity had jurisdiction to reach and subject to the' satisfaction of a judgment creditor any purely equitable interest of the debtor, if the interest was such an one as could not be subjected to execution, and it had not been put in such attitude by the fraud of the debtor. Even though the better opinion should be that courts of equity had inherent jurisdiction to subject a trust fund in which the debtor had an interest, yet the question was a disputed one in this State as it was in Hew York. The Chancery Court of Hew York had pronounced a decision similar to that in the case of Erwin v. Oldham—Donnovan v. Finn, Hop., 59— and upon the authority of the Hew York case our case rests. The Hew York case was followed by their Act of 1828, identical in substance with our Act of 1832. Upon full consideration of the effect of the Act of 1828, the Hew York Court of Appeals say, “that before the statute it was an unsettled point whether courts of equity had jurisdiction over the subject; and when, therefore, in the language of the Chief Justice, in Groff v. Bonnett, 31 New York, 9, the Legislature came to define the eases and prescribe the manner in which intangible personal property should be subjected to the satisfaction of the debts of the owner, the provision ought to be considered exclusive of any other authority for effecting the same end.” Campbell v. Foster, 35 N. Y., 366.

This New York act was adnpted by the legislative branch of the government of this State, to meet the same defects in and disputes as to the jurisdiction of our Chancery Court. It is in the following words: “Section 1. That whenever an execution against the property of a defendant shall have been issued on a judgment at law or decree in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person or body corporate, to compel the discovery of any bank stock or other kind of stock, or of any property or thing in action due to him, or held in trust for him, and to prevent the transfer of any such stock, property, money, or thing in action, or the payment or delivery thereof to the defendant except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself, and is declared, by will duly recorded, or by deed duly proved, and registered

The second section provides that the Court shall have jurisdiction to decree satisfaction out of the property so impounded, belonging to the defendant, or held in trust for him, with the exception named above. The third section provides for the registration of judgments. The fourth and last section provided for the ease of one who could not procure personal service of process at law, or where no original attachment would lie at law, and no judgment at. law obtained, and also where the demand was purely of an equitable nature, that jurisdiction exists to sustain a bill and subject legal and equitable interest, “ with the exception above-named,” to the satisfaction of the demand of such creditor.

This act is carried into the Code with no material or significant change at Sections 4283, 4284, 4285, 4286, and 4287. Row, in view of the doubt as to the inherent jurisdiction of the chancery court to reach property held in trust for another which was not subject to execution at law, we are disposed to say with the Rew York Court concerning the same disputed jurisdiction and the same legislative settlement, “that when the Legislature came to define the cases and prescribe the manner by which intangible personal property should be subjected to the satisfaction of the debts of the owner, the provision ought to be regarded as exclusive of any other authority for effecting the same end.” 35 R. Y., 366.

Here, then, is an express and positive legislative limitation upon the jurisdiction of the Chancery Court. We can put no other meaning upon this legislation than that it is not in the power of a court of equity to subject to the satisfaction of the demands of a creditor the income of a trust fund, whether the fund or property be realty or personalty, where such trust was created by one other than the debtor. This efi'ect has been given to this act by the courts of New York in several eases, and we see no way in which we can avoid this result. "Whether the court had jurisdiction or not before this act must be immaterial; any fair and reasonable construction • of the act must result in holding that thereafter the jurisdiction was gone. The policy of the act may be disapproved, but, until repealed, we must enforce it. Its policy, however, is, as we have seen, in full accord with reason and the great weight of American decision.

Until the passage of this enactment it was within the authority of this Court — if it be assumed that the Court had jurisdiction prior thereto — to adopt and announce the doctrine of the English courts, which the Supreme Court of the United States characterizes as “ one which the English Chancery Court has engrafted upon the common law for the benefit of creditors, and of comparatively recent origin; ” or, taking a broader view of the right of a testator to guard his bounty by limiting the use to that of the donee, have held, in accordance with the great current of American authority, “that the creditor is neither misled nor defrauded when the object of the testator is carried out by excluding him from any benefit of such a devise.” Nichols v. Eaton, 1 Otto, 716.

After the Act of 1832, whether it be regarded as depriving the Chancery Court of jurisdiction to aid the creditor to subject such a devise or not, it must be at least regarded as a legislative decía-ration of public policy in regard to such trusts, and as strongly persuasive to this Court that such trusts ought not, upon a fancied contravention of public policy, be overthrown. That act we believe to have been regarded with great unanimity by the bar of this State as putting at rest the question of the validity of such trusts until the decision of the case of Turley v. Massengill. In 1859 the question was squarely presented to this Court in the case of Nichols v. Levy, decided at Nashville. There was no written opinion, but the decision was by Judge McKinney. The decree in the cause shows the character of the trust and the decision of the Court. It was as follows:

“Be it remembered that this cause came on to be heard on the 30th of January, 1859, before the Supreme Court of the State of Tennessee sitting at the city of Nashville, on the transcript of the 'record from the Chancery Court at Nashville. And it appearing that Beal Bosley executed his deed of date of 13th of October, 1849, and thereby conveyed to John Nichols, Sr., father of the defendants, James B. and John Nichols, Jr., and his heirs forever, a certain tract of land in Davidson. County, near the , city of Nashville, containing 308 acres, and other property in the pleadings mentioned, in trust to permit said Beal Bosley to possess, use, and occupy said lands and other property for and during his natural life, and after his death to 'permit said James B, Nichols and John Nichols, Jr., jointly or severally, according to any division into two equal parts that may thereafter 'be made between them, and to have ‘possession, use, occupy, and enjoy said property, and receive the rents, issues, and profits thereof, but so that neither the said property, nor the rents, issues, and profits thereof, shall ever be liable for any of the present, noAv existing debts, whether due or not due, or now existing contracts of said J. B. and John Nichols, Jr., or either of them, or to any incumbrance, liability, or lien that they, or either of them, or their property, are now subject to for such debts or contracts, or by any act, default, or transaction of their own whereby they may attempt to make the same liable for said debts or contracts; and after the present debts and liabilities shall have been extinguished and they entirely discharged therefrom, then the said John Nichols, Sr., should hold said property, and every part thereof, in trust to convey the same to the said J. B. and John Nichols, Jr., in fee and absolutely either as tenants in common or in severalty, and in such manner as may be agreed upon by and between them. It further appearing that all of the debts of all the complainants were in existence at the date of the execution of the deed, and. were subsequently reduced to judgments in the Circuit Court of the United States at Nashville, and that said John Nichols, Sr., has departed this life, leaving the defendants as his heirs at law, and it being the opinion of this Court that said property is not liable for said debts and judgments of complainants, and that the same may not be subjected to the payment and satisfaction of'said debts and judgments, it is ordered and decreed that the decree of the Chancellor he affirmed.”

Chancellor Cooper was of counsel for the Nichols in that ease, and he states, in the case of Hooberry v. Harding, 3 Tenn. Ch. Rep., 677—a case involving a trust of the kind now under consideration, and which he sustained as valid — that the opinion was delivered by Judge McKinney, and “ that it was based upon the statute, and turned upon the power of the donor of property, by will recorded or deed registered, to fix upon it a trust for the benefit of the objects of the bounty to the exclusion of creditors. Some of the creditors of the Nichols, who were parties to the case mentioned, together with others not parties, subsequently instituted another suit in the Federal Court to reach and subject the interest of Nichols under this trust. This new case, upon appeal, was heard in the Supreme Court of the United States, and is reported in 5 "Wall., 444. In this latter opinion the Court states the substance of the former litigation in the State Court over the same trust, and say:

“ The Supreme Court of the State decided in the suits referred to that this statute (the Act of 1832) embraces trusts of real estate, and that . it exempted the property in question from liability to the judgment creditors. There can be no doubt of the power of the Legislature to pass the statute. Its wisdom and policy are considerations with which we have nothing to do. Being a local statute and involving a rule of property, we adopt tlie construction which has been given to it by the highest judicial tribunal of the State.”

This case of Nichols v. Levy, as decided by this Court, and the subsequent adoption of the construction of the Act of 1832 by the Supreme Court of the United States, has been regarded as settling the construction of the act in question, and as finally settling the validity of such trusts. The act and the decision constituted a rule of property, and it is believed that very many such trusts have been created in reliance upon it. The cases of Turley v. Massengill, 7 Lea, 353, and Hooberry v. Harding, 10 Lea, 392, if assented to, practically repeal this statute and overturn a rule of property acquiesced in for nearly fifty years. Both cases are recent.- One of them involved the very trust now under consideration. The first was decided by a divided Court, Judge Turney dissenting, of which two members were special judges. It has been followed but once, and it is believed that it has not met with approval of the lawyers of the State. We recognize the importance of stability of decisions, especially when a decision has become a rule of property. But these cases do not establish a rule of property, but overturn such a rule, and are destructive of large property interests created upon the faith of the meaning of a plain and positive statute, subsequently construed by this Court, and such construction adopted by the 'highest court in the Union.

This decision is ignored and" not even alluded to. In the view we take of theée cases they not only reversed a previous decision of this Court acquiesced in for over twenty years, but they virtually repeal a legislative enactment intended to conserve and protect just such trusts. They are not supported by the weight of American authority, and are not supported by reason or considerations of sound public policy. To use the language of one of our most eminent predecessors — Judge- Haywood:

“Being thus unequivocally wrong, and destitute of individual right in a very extensive and eminent degree, it cannot; in my apprehension, be the duty of the present Judges, because of any judgments already pronounced, to adhere to the rule of construction. Comity is not entitled to so great a sacrifice; uniformity of decision is of far less moment than the security and repose of the whole community.” Barton’s Lessee v. Shall, Peck, 239.

Said another most eminent lawyer, sitting as a Special Judge, and delivering the opinion of this Court:

“Where a decision or a seines of decisions have established a rule of property, and more particularly a rule affecting title to real estate, which has become generally known and been acted upon, such a land-mark should not be disturbed. But when there is no such restraining consideration; when the thing determined is of recent origin, not supported by former precedents, but contrary to the highest and most" respectable . authorities of other States and of the United States, where the decision has not met the approbation 0f the profession at large, such decisions should be examined without fear and reversed without reluctance.” Special Judge Shields, 1 Heis., 143.

We are, from these premises, constrained to overrule the two cases in conflict with the views we here announce. We therefore hold that the will under consideration imposes upon the trustee, “ either expressly or by implication,” the active duty of managing the estate devised, and to so control the use of it by Massengill that the rents and issues shall be applied to the support of Mas-sengill, and that such rent and income, as well as the corpus of the estate, are not subject to the debts of the said beneficiary. The property was, therefore, the subject of a valid • active trust, and hence not subject to levy and sale by execution, and cannot be reached by the creditors through the instrumentality of the Chancery Court. The sale and conveyance by the Sheriff are void. The decree of the Chancellor is reversed, with all costs.

Snodgrass, J., dissents as to overruling the former eases.  