
    Thornton et al. v. Stanley.
    
      Will — Bequest of income to trustee for life of certain person — Bequest absolute and subject to creditors,
    Where a testator bequeathed all the net income of his estate to a trustee in trust for the education and support of a certain person for life, without other limitation: Held, that the bequest so made is an absolute one, and is subject to the claim ' of creditors.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Hamilton county.
    
      William L. Avery, for plaintiffs in error.
    The intention of the testator is the polar star in the construction of a will and testament. Decker v. Decker, 3 Ohio, 157, 169. And in searching for that intention, regard will be had'“to the time when, and the circumstances under which, the will was ’ made.” Attorney-Gen. v. College, L. R., 4 Ch. App., 722.
    The trust created was for an infant who has since grown to be a woman, but the character of the trust has not changed. It was for an infant at the time; but it was for life, and is the same for the woman as the infant. ' Plainly, the fund, for education and support was not intended to be left to the appropriation of the infant or woman, at discretion; but was confided to the discretion of the trustee. It .was given to him. He was to have it. The written words, without punctuation as they are, leave no manner of doubt of this. Punctuated, to conform to the only possible sense, they run:
    “The said trustee and executor to have the rents, issues and interest, after deducting his compensation, taxes and charges of every description to the said Emma, for her education and support during the life of the said Emma only.”
    The development of the doctrine of spendthrift trusts, as sometimes called, or that the beneficial estate under a trust may be fettered against alienation, is peculiar to the United States. In England, such restraint is permitted in case of the separate estate of a married woman, for the reason, as given, that the estate is the creature of equity, and that equity may act upon its own creature and so modify the estate as to advance the object. Tullet v. Armstrong, 1 Beach., 22. Bub this reason, while seeming to extend as weLl to all trusts, since all are creatures of equity, has not gone further, or, at least, has not been allowed by English chancellors to go further. Brandon v. Robinson, 18 Ves., 429; Snell’s Principles of Equity, 1 Am. Ed., 333.
    In this country, however, it has been different. The policy of not permitting an interest in property to be given to be enjoyed, without at the same time being subject to the claims of the creditors, which policy influences the English rule, has been distinguished against on the ground that our registry laws furnish information of the title; and, upon principle, it has been frequently held, that the whole being out of the bounty of another, the donor, in the exercise of rights of proprietorship, may, through trust, determine the conditions of the gift, and control its enjoyment according’ to occasion. The only essential to protection against creditors is, that by the terms of the gift, the interest shall be made inalienable. But this does not need to be declared in express terms. It is a .question of intention, ascertainable like any other, from the instrument creating the trust, when construed in the light of the attendant circumstances. And that such trust was intended, in other words that the beneficial interest given was intended to be inalienable, is a necessary inference from the giving but of the right of support out of a fund, which, itself, is given to another. Nichols, Assignee, v. Eaton, 91 U. S., 716; Leavitt v. Beirne, 21 Conn., 1; Barnett v. Montgomery, 79 Ga., 726; Steib v. Whitehead, 111 Ills., 247; Pope’s Exrs. v. Elliott, 8 B. Mon., 56; Roberts v. Stevens, 84 Me., 325; Smith & Son v. Towers, 69 Md., 77; Wemyss v. White, 159 Mass., 484; Partridge v. Cavender, 96 Mo., 452; Mehaffey’s Estate, 139 Penn. St., 276; Jourolomon v. Massengill, 86 Tenn., 81; Barnes v. Dow, 59 Vt., 530; Garland v. Garland, 87 Va., 758.
    The effect of the cases is to ‘ ‘pat an equitable cestui que trust upon the same footing, as a married woman, under the English decisions.” Wemyss v. White, 159 Mass., 485.
    
      Hobbs v. Smith, 15 Ohio St., 419, sometimes cited, has, it is submitted, no relation to the point involved; nor has Anderson v. Cary, 36 Ohio St., 596. Both were eases of the devise of an absolute interest or ownership.
    The only question is of the conditions of the trust. In the analogous ease of a married woman, the whole current of authority holds that no particular form of words is necessary. Such restraint is implied when a different interpretation would defeat the purpose of the donor. Baker v. Bradley, 7 De. G. M. & G., 595; 1 Lead. Cas. Eq. (4 Am. Ed.), 748.
    Ordinarily if a trust be to pay over to the beneficiary, the power of the beneficiary to assign is not repugnant to it, in the absence, at least, within the cases cited, of some such words implying restraint upon anticipation, as “to the beneficiary’s own hands.” And although to the beneficiary “for education and support,” it is the same; for the fund will be left to be expended by the beneficiary, and the trust therefore would not exclude the absolute property and. right of disposition.
    Upon the other hand, if not to be paid over to the beneficiary, but to be expended by the trustee, the case would be different. The difference would be in the expenditure being a duty of. the trust, no more to be diverted out of the hands of the trus tee, or the trustee to be divested of it, by act of the beneficiary, than by act of any stranger.
    The cases and text books are in accord upon this distinction. Henson v. Wright, 88 Tenn., 502; Leavitt v. Beirne, 21 Conn., 1; Perry on Trusts, 386, and cases already cited.
    The decision of the circuit court was upon the ground that it was not left to the discretion of the trustee to determine the sum for education and support, but that the whole income was made applicable.
    That this was a mistaken distinction is submitted, upon the rule of decision from above citations. In the nature of the trust there could be no difference, so far at least as the duty of application to education and support were concerned, whether the trust fixed the amount, or left it to be fixed by the trustee. Of course, if the discretion of the trustee were absolute, whether to appropriate anything or nothing, the case would be good, even under the English rule. Twopeney v. Peyton, 10 Sim., 487, 490; Holmes v. Penney, 3 K. & J., 90, 104. Such case would exclude any interest in the beneficiary, or, at least, any that could he enforced; and as the trustee could withhold from the beneficiary, he could of course, likewise, from the assignee or creditor of the beneficiary.
    This is illustrated with much pertinency, by comparing Slattery v. Wason, 151 Mass., 266, the only case cited by the circuit court, with the very recent case, decided since the circuit court’s decision, Wemyss v. White, 159 Mass., 484.
    Argument indeed would be unnecessary, but for the lingering influence of the English rule, that the amount under'a trust for education and support must be left to the discretion of the trustee; otherwise, that if fixed by the donor of the trust, without express words against alienation, it may be diverted and subjected by general creditors.
    
      Scott Bonham, for defendant in error.
    Under the terms of. the will the beneficiary, Emma C. Thornton, was entitled to the sum of at least $300 per year from the estate of Stephen Clark, in the hands of the trustee, C. C. Murdock, and not merely to such sum as in the judgment of the trustee is needed for her education and support, the testator directing that if the clear or net income did not amount to $300, enough of the principal should be appropriated each year to make that sum. There is not even the break of punctuation mark or capital letter between this proviso and that directing the payment of rents, issues and profits for her education and support. The trustee had no discretion. Gillen v. Kimball, 34 O. S., 364.
    The interest to be used as she may need means as she may desire. Maynard v. Cleaves, 149 Mass. 307. Sparhawk v. Cloon, 125 Mass., 263.
    
      A testatrix devised all her property to a trustee for the sole use and support of her husband. Held, that he took an equitable fee which he might alienate and apply to payment of debts. Sears v. Choate, 146 Mass., 395.
    The words, “to be for her comfortand support,” at most express the motive and purpose of the gift, but cannot be held to make the gift conditional. * * * The executor has no right to withhold any part of it on the ground that she does not need the whole for her comfort and support. She has an absolute estate in the income, which she can alienate, and which can be reached by her creditors. Slattery v. Wason, 151 Mass., 268.
    When the whole income or a definite sum is given to the beneficiary for his support, the whole belongs to him, and is to be applied by him at his discretion, and the expression of the purpose for which it is given is not deemed to be the expression of an intention that the right to secure it shall not be alienable.
    See also Pope’s Exr. v. Elliott, 8 B. Mo., 65, distinguishing case at bar “from a devise of specific property in trust to apply the proceeds or profits to his support. ’ ’
    And though the statutes of Illinois (see Hurd’s Rev. St. Ills., 195, Chancery Practice Act, §49 ch. 22) provide that a creditor’s bill may reach property held in trust, “except where such trust has in good faith been created by, or the fund so held in.trust has proceeded from, some person other than the defendant himself.” 111 Illinois, 249.
    
      Hunter, Admr., v. Steenbridge, 12 Ga., 192, held that a testator used the word.“allow” to express his intention.
    
      There is no limitation in the will on the beneficiary’s right to alien, assign or charge said sum with the payment of her debts.
    And not even in those courts where the so-called doctrine of “spendthrift trusts” is recognized, would the trust created by Stephen Clark’s will be held to be such a trust; but the rents, issues and profits under this will would be subject to the debts of Emma C. Thornton. Roberts v. Stevens, 84 Maine, 326. Maynard v. Gleaves, 149 Mass., 308. Broadway Bank v. Adams, 133 Mass., 170.
    King’s Estate, 177 Pa. Stat., 411, affirming case from Philadelphia Orphan’s court, 47 Legal Intelligencer, 455, in which “the trust was to pay the income to the testator’s wife for life upon her sole and separate receipt or order in writing, to be from time to time and not by anticipation, given,” held not a spendthrift trust; citing also Hahn v. Hutchinson, 159 Pa. Stat., 133, and McConnell v. Wright, 150 Pa. Stat., 275, with approval.
    Mehaffey’s Estate, 139 Pa. Stat., 276, holds that “apt words” must be used to create such a trust.
    It will be found that in the entire line of Maine, Massachusetts, Pennsylvania, Virginia, or other cases, peculiar forms of expression by testator are used, which convey with certainty his intention to make the trust free from liability for beneficiary’s debt.
    But were there a limitation in the will of Stephen Clark on the beneficiary’s right to charge the trust with her debts, or were there any circumstances from which the conclusion must be reached that Stephen Clark intended that the trust should not be liable to the debts of Emma C. Thornton, still under the rule of English decisions and that of the majority of our American State courts, the net income devised in the will to Emma C. Thornton would be subject to her debts. Bierce v. Bierce, 41 O. S., 256.
    The policy of Ohio law is unfavorable to entails. Is it not also so unfavorable to provisions “tying’ ’ up property, that it will not by liberal construction create such limitations? Drake et al. v. Rogers, 13 O. S., 29.
    In the absence of legislative enactments and as auxiliary to, and for the enforcement of such enactment and so far as the reason of its rules remained applicable to our condition and circumstances as a people, the common law of England has always been received and accepted as the common law of this state. Hobbs v. Smith, 15 O. S., 424. Anderson v. Cary, 36 Ohio St., 517.
    Your intention is called to a decision of the Cincinnati superior court in general term, by Justices Spencer, Gholson and Storer, in 1855, found in 2 Handy, 79. This decision is in record with the rule of the English cases and of most of the American cases where the question has arisen. Brandon v. Robinson, 18 Vesey, 429. Rochford v. Hare, 9 Hare, 480. Graves v. Dolphin, 1 Simmons, 66. Tillinghast v. Bradford, 5 R. I., 205. Dick v. Pitchford, 1 Dev. & Bat. Eq., 480. Pace v. Pace, 73 N. C., 119. Heath v. Bishop, 4 Rich. Eq., 46. Kemper v. McWhorter, 56 Ga., 183. Ringley v. Robinson, 10 Ala., 702. James v. Reese, 65 Ala., 134. Spinde v. Shreve, 111 U. S., 546. Nichols v. Levy, 5 Wallace, 441.
    Surely the obiter dicta of Nichols v. Eaton, 81 U. S., 716, did not overrule Nichols v. Levy, 5 Wallace, 441.
   Minshall, J.

The suit below was an action commenced by A. Stanley against Emma C. Thornton and Charles C. Murdock, her trustee, under the will of Stephen Clark, deceased, to subject money in his hands to the payment of a judgment he had recovered against her, and on which execution had been issued and returned unsatisfied for the want of property whereon to levy. The case was appealed to the circuit court, where judgment was rendered in favor, of the plaintiff. The only question in the case is, whether the provision made for Emma C. Thornton in the will of Stephen Clark is subject to the claims of creditors — she being the person therein named as “Emma, the natural child of Mary Maiden.”

•The provision of the will is as follows :

“I, Stephen Clark, do hereby dispose of all my property, real and personal, by this, my will — to the Hon. C. C. Murdock, in trust, and as executor herein for Emma, the natural child of Mary Maiden or Mary Craid, now residing in Covington, Kentucky. The said trustee and executor to have the rents, issues and interests after deducting his compensation, taxes and charges.of every descrip- ' tion, to the said Emma, for her education and support during the life of the said Emma only, and if the clear income should not amount to three hundred dollars per year for the said Emma, enough of the principal' to be appropriated to make up three hundred dollars for her per year, and if the said Emma should die leaving lineal descendants of her blood, near or remote, natural or legitimate. Then said property to be delivered to said descendants in the order of the statute of descents and in fee. ”

It will be observed that the testator gives all his property to his trustee, upon the express trust, however, that the net income shall go to the child, Emma, during her life, for her support and education. The purpose named, however, is not a limitation upon the gift itself. It only expresses the motive of the gift. No discretion is given the trustee as to the amount he may so apply. It is all the income, after deducting the expenses and a reasonable compensation to himself. Whilst, under the rule that is admitted to prevail in England, such a bequest might be aliened, and would, without doubt, be subject to the claims of creditors, it is claimed that under the rule that prevails in Massachusetts and many of the other states, such is not the case. This rule permits a testator, through the agency of a. trustee, to make a bequest in such wise as to preclude the claims of creditors against the beneficiary, where the purpose is clear]y expressed, on the ground that a testator has the right to dispose of his property as he sees fit; and may, therefore, so limit a bequest as to protect it from the claims of creditors against an improvident beneficiary. Whether this is so in Ohio, need not be determined, for, as shown, it is clear that the provision in the will of Stephen Clark in favor of the natural child of Mary Maiden manifests no such intention.

It is said, by Morton, C. J., in Sears v. Choate, 146 Mass., 395 ‘This court has held that the founder of a trust may give an equitable life tenant a qualified estate in income which he cannot alienate and which his creditors cannot reach.” Broadway National Bank v. Adams, 133 Mass., 170. But in order to give such a qualified estate, instead of an absolute one, the language of the founder must be clear and unequivocal to that effect. And observing that, in the will then in question, “there is no limitation over of the estate in any contingency to any other person; there is no discretion given to the trustees, and there is no provision that the income of the estate shall not be alienable by the plaintiff or attachable by his creditors,” said, “it cannot be doubted that under this will plaintiff took an equitable estate which he might alienate, and which equity would apply to the payment of his debts.” Citing Sparhawk v. Gloom, 125 Mass., 263.

The claim that the bequest in this ease is a limited one, is founded solely on the fact that it was given for the education and support of the beneficiary. But, in Slattery v. Wasson, 151 Mass., 268, it is said by Allen, J.: “When the whole income or a definite sum is given to the beneficiary for his support, the whole belongs to him, and is to be applied by him at his discretion, and the expression of the purpose for which it is given is not deemed to be the expression of an intention that the right to secure it shall not be inalienable; but when the right is for a support out of a fund which is given to another, the right is in its nature inalienable, and the intention of the donor that it shall not be aliénated is presumed.” Taking this to be a fair expression of the rule and its limitations in Massachusetts, where it has apparently received its widest application, the bequest in question must be-regarded as an absolute one. As before observed, the net income is all given to the beneficiary for her education and support, not such sum as may be allowed by the trustee or by him thought necessary; nor is it a support out 'of a particular fund given to another, for here, to her, is given the whole fund, the net income from the testator’s estate. For a statement of the doctrine of the English Chancery, and adopted in many states of the Union, see Perry on Trusts, section 386, and notes; and for the qualified doctrine of some of the states, section 386« and notes of the same work.

We therefore think it is subject to the claim of creditors, and

The judgment is-affirmed.  