
    Michael Brigden versus Moses Gill and Henry Prentiss, Principals, and Ward N. Boylston, Trustee
    
      A. makes his bond to B., conditioned to pay to B. a yearly sum, during the life of C., to be applied by B. to the maintenance of C., his wife or family, or any member of it, according to B.’s judgment and discretion. A. was held not to be the trustee of C., or of B., on account of the said annuity being in arrear.
    The question in this action was, whether Boylston was the trus tee of the principal defendants. In his answer to the common interrogatory, he states that, in December, 1804, he made his bond to Prentiss, in the penal sum of 5,000 dollars, conditioned that he would pay or cause to be paid to the obligee, his heirs and assigns, the sum of 520 dollars per annum, in four quarter-yearly instalments, during the life of the said Gill, the same to be applied by Prentiss to the maintenance of Gill, his wife or family, or any member thereof, according to Prentiss's judgment and discretion ; that the said Gill was still living, and had children living, his wife being dead ; and that, at the time *of his being [ * 523 ] summoned as such trustee, three quarterly payments of the annuity were in arrear.
    
      Ward, for the plaintiff.
    
      Richardson, for the trustee.
   Per Curiam.

Boylston cannot be considered the trustee of Gill, for he is under no legal obligation to him, and Gill can maintain no action. Prentiss alone can sue on the bond. But Boylston is not the trustee of him, for he is to receive the money, not for his own use, but to be applied to the support of Gill, his wife and family at the discretion of the obligee. It may be, that the circumstance* of the family would require that the whole should be appropriated to their support; and Prentiss is at liberty so to appropriate it.

If this bond had arisen from a debt due from Boylston to Gill, it might be that such a disposition of the funds would be fraudulent, as against Gill’s creditors. But it appears to have been a voluntary provision made by Boylston; and justice to Gill’s creditors does not require that it should be diverted from his family to them. The family of Gill has as great an interest in this money as he himself has.. If his property had been attempted, by this or any other means, ¡to be secured to his family, undoubtedly such a settlement would have been void against his creditors; but a fund secured by the bounty of any one to the family of a debtor, ought not to go to his creditors.

Trustee discharged.  