
    ESAU PICKRELL AND ADOLPHUS H. PICKRELL, TRADING UNDER THE NAME OF E. PICKRELL & CO., vs. E. F. ZELL AND MARY H. ZELL, HIS WIFE, GEORGE E. KIRBY, TRUSTEE, WILLIAM R. REILLY, AND ELLEN BRAWNER.
    In Equity. —
    No. 3151.
    A cestui que trust has not such an interest in the trust estate as a court of equity will apply to the discharge of a judgment debt, when the rents, issues, and profits thereof are directed by the deed creating the trust to he applied to the support, maintenance, and education of his ■children.
    STATEMENT OP THE CASE.
    The plaintiffs state their case as follows :
    They sold to the defendants, E. F. Zell and Mary H. Zell, his wife, a lot of lumber and materials to build and erect a house upon the premises, being part of lot 14, in square 437, fronting on Seventh street, south 25 feet and running back 99 feet deep; that the said E. F. Zell and Mary H. Zell gave their promissory note to the plaintiffs for the sum of $653, .and dated 4th of February, 1870, and payable five months after date, but did not pay the same; that the plaintiffs instituted suit ou the law side of said court and recovered judgment for their claim, on which execution was issued, and returned by the marshal nulla bona, when the said plaintiffs filed a bill in equity to obtain a decree for the sale of the life estate of the said E. F. Zell and Mary H. Zell, or either of them, in said premises, to satisfy said judgment, or to sell whatever interest they may hold in said premises.
    The bill was taken pro confesso against all the defendants, .and on being set for final hearing, was submitted to the consideration of the court, upon original bill and exhibits thereto and amended bill. The court decreed “ that the property .sought to be subjected to the .debts of Zell and his wife is not liable therefor. It is ordered that the decree pro confesso be set aside, and that the bill be dismissed;” from which decree the plaintiffs appeal to the court iu general term.
    
      The clause in the deed of trust upon which the question arises made by Hugh B. Sweeney to George E. Kirk, trustee, is as follows: “Together with the buildings, improvements, rights, privileges, and appurtenances thereunto belonging, in trust for Mary H, Zell, the wife of Enoch F. Zell, and the children of the said Mary H. Zell, and any other child or children hereafter begotten between said Enoch F. and Mary H., and to and for no other use, intent, and purpose whatever. That is to say, that the said Kirk, his heirs and assigns, shall- and will permit said Zell to use and enjoy the same, together-with the buildings, improvements, and appurtenances, rents, issues, and profits thereof arising, for and during his natural life; and after his death, to hold the same in trust as aforesaid until the whole of said children, as aforesaid, shall arrive at the age of 21 years; and to apply the rents, issues, and profits arising therefrom to the support, maintenance,, and education of said children or child as aforesaid; and upon this further trust, that he, the said Kirk, his heirs and assigns, at the request and direction of the said Mary H. Zell, shall at all times hereafter, prior to the said children or child arriving at the age of 21 years, dispose of said land and premises for the joint benefit of said Mary H. Zell and said children or child, as aforesaid, without any interference of the said Enoch F. Zell, and to convey the same to the purchaser and purchasers, she, the said Mary H. Zell, going thereon, and from the proceeds therefrom to purchase some other property or invest otherwise, as the said Mary H. shall designate, and hold the same in trust as aforesaid, or hold the proceeds for the benefit of the parties aforesaid.”
    
      R. P. Jackson for complainants.
    No appearance for defendants.
   Mr. Justice MacArthur

delivered the opinion of the court:

In Starr vs. Keefer, (1 Mac A., 166,) we decided where a deed of trust directed the trustee to permit the cestui que trust to enjoy the rents, issues and profits, - arising from the trust estate during his life, and to apply the same to the support, maintenance, and education of his children, that such cestui que trust had not an interest in the property which a court of equity could apply to the satisfaction of a judgment debt. The complainant here seeks for the same relief upon a deed of trust similar in all respects. The clauses upon which the question arises in both deeds are substantially alike; and the decision then made must therefore govern in the present case. The effect of granting the complainant’s prayer would be to divert the rents and profits of the estate from the purposes for which the trust was created, viz, the support and education of the children. It was manifestly the design of the grantor to provide a fund for this purpose, and he simply gave the administration of his bounty to their parents and natural guardians. The court cannot deprive them of this valuable privilege for the purpose of enforcing a judgment with which they have no connection-We cannot execute the trust as if it were for the sole benefit of the defendants without prejudice if not gross injustice to the rights of the children. The consequence is that the decree appealed from must be affirmed.  