
    Matter of the Judicial Settlement of the Accounts of William D. Temple, Executor of the Last Will and Testament of Mary J. Duel, Deceased.
    
      (Surrogate's Court, Washington County,
    
    
      Filed December, 1901.)
    Trust Legacy — To a Debtor of the Donor — Intention.
    Where a mother, whose son is indebted to her, creates a testamentary trust for him for life, which she thereby declares shall not be' subject in any degree to the intervention of any creditor of his and which she thereby states is intended to secure him the ineome of the principal for life and put it beyond the reach or control of all and every creditor of his, her executor cannot reach the income of the trust and have it applied to the debt, which the son owed the mother, as it was her evident intention that he should receive the whole income for life.
    Proceeding upon the judicial settlement of the accounts, of an executor.
    Joseph B. McCormick, for executor; Clarence E. Parker, for Hiram Duel.
   INg-alsbe, S.

— Tbe question submitted, relates solely to tbe construction of tbe sixth clause of tbe testator’s will, wbieb reads as follows: “ I give and bequeath tbe sum of three thousand dollars to Joseph B. IVIcConnick, or bis successors, to have and to bold tbe same, but nevertheless in trust and. upon tbe uses and trusts and for the purposes following: To be held, managed and invested from time to time _ and as need be reinvested by said J. B. McCormick, as such trustee or bis successor, in said trust, for tbe benefit and advantage of my son, Hiram Duel, in such good productive stocks and mortgages as will produce, if possible, a sure and regular income, and tbe whole net income or interest of which fund is to be paid over to my said son, Hiram Duel, for and during tbe term of bis natural life, at least once a year upon his own order or receipt without being subject in any' degree to tbe intervention or order of any creditor of tbe said Hiram Duel, my object being to Secure to him, tbe said Hiram, during tbe term of bis natural life tbe use, income, interest and enjoyment of all tbe said three thousand dollars, and to put tbe same beyond tbe reach- or control of all and every creditor of tbe said Hiram.”

By a codicil, W. D. Temple was named as trustee in tbe place of Joseph B. McCormick, but the clause in question was in no other way changed.

• At tbe death of tbe testatrix, her son, Hiram Duel, tbe beneficiary named, was indebted to her in tbe principal sum of'$l, 363.90.

Tbe executor contends that tbe income of the trust fund of $3,000, given the debtor, should be applied in reduction of this indebtedness; that be has an equitable lien upon this legacy of income given Hiram Duel, and tbe right to retain it from time to time, as it matures, and apply tbe amounts so retained in payment of tbe indebtedness of tbe beneficiary to tbe testator, until it shall be fully liquidated..

A legacy by a creditor to a debtor does not operate as a release or extinguishment of the debt unless it appears to have been the intention of the testator to have it so operate. The legacy produces no effect upon the indebtedness unless it is clearly apparent that it was the testator's intention to release the debt.

The intention of the testator is to be sought for in the will itself and carried into effect.

Fortunately, in the clause under consideration, this intention is very clearly expressed. The object of the provision for the son, Hiram, is explicitly stated .on the face of the will to be to secure .to him . . . during the term of his natural life, the use, income, interest and enjoyment of all the said three thousand dollars.”

If the contention of the executor is correct, Hiram Duel can receive no use or enjoyment from this sum for many years. Even in the most favorable aspect of interest returns, taxes levied and necessary expenses paid, nearly two decades would elapse before he became the recipient of the “ sure and regular income ” his mother intended to pi’ovide.

The testator was not content with a single statement of her intention. In another portion of this clause she directs the payment of this income, to be as often as once a year, upon the beneficiary’s “own order or receipt without being subject in any degree to the intervention or order of any creditor.”

At the close of the provision she reiterates her position to be, to put the same beyond the reach of all and every creditor of said Hiram.” This not only makes her intention more unmistakable, but in effect it declares that the income of said $3,000 shall be beyond and above the reach of her estate as a creditor of the beneficiary.

A decree should be entered for the immediate payment to the beneficiary, Hiram Duel, of the income of said trust fund, which has accrued since the death of the testator.

Decreed accordingly.  