Pickens v. Dorris
| Decision Date | 08 December 1885 |
| Citation | 20 Mo.App. 1 |
| Parties | ANDREW J. PICKENS, Respondent, v. THOMAS DORRIS ET AL., Appellants. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.
Affirmed.
HUGO MUENCH, and BOYLE, ADAMS & MCKEIGAN, for the appellants The interest of Thomas Dorris in the net income from rents and profits, being an equitable right conferred upon him by a volunteer and not out of his own property or by trusts of his own creation, are not subject to the payment of his debts until they become his by reduction to possession so as to be his property. McIlvaine v. Smith, 42 Mo. 45; Hardenburgh v. Blair, 30 N.J.Eq. 645; Pom. Eq. Jur., §§ 102-106?? Nichols v. Eaton, 91 U.S. 716 (bk. 23, L. ed. 254), and cases cited; Hyde v. Woods, 94 U.S. 523 ; Montague v. Crane, 12 Mo.App. 582; No. ?? and cases cited; Thackara v. Mintzer, 100 Pa.St. 151, Swaby's App., 18 Rep. 350; Campbell v. Foster, 35 N.Y. 361. Devises of income may, by limitation, be withheld from the liability for payment of the debts of the beneficiary; and whether or not there be such limitation may be gathered from the evident intention of the donor as gathered from all the provisions of the will. Steib v. Whitehead, 111 Ill. 247; Nichols v. Eaton, supra; Rhoads v. Rhoads, 43 Ill. 239; Spindle v. Shreve, 9 Biss. 199; Broadway Nat. Bk. v. Adams, 133 Mass. 170; Turner v. Timberlake, 53 Mo. 371; Smith v. Hutchinson, 61 Mo. 83; Allison v. Chaney, 63 Mo. 279; Crecelius v. Horst, 78 Mo. 566, and cases cited on point first; 2 Redf. Wills (4 Ed.) 302, n. 93.
JAMES M. LEWIS, for the respondent; J. B. HENDERSON and J. P. KERR, of counsel.
George P. Dorris made his will, in which, among other things, he devised certain houses to trustees " in trust to possess and keep the same rented as advantageously as may be, and out of the rents to pay for all proper repairs to said houses and for a reasonable insurance thereon and the expenses of their care, and all taxes, charges, and assessments, levied, imposed, or charged thereon and within the times required by law, and the balance to my son, Thomas Dorris, during his natural life."
The remainder of his estate he devised to the same trustees to be held, sold, and put into condition to realize as large a net income as possible, and to pay such net income at the end of each and every successive period of three months succeeding his death, to his son, Thomas, and his daughters, Mattie and Annie, each one third thereof.
These are all the provisions of the will material to the present inquiry.
The plaintiffs, judgment creditors of Thomas Dorris, ??e brought their bill in equity to subject the interest ??homas Dorris in the property aforesaid, and in the ??, issues, and profits arising therefrom, to the pay?? ?? of their judgment, and obtained in the trial court ??ree ordering the trustees to pay to them the sum, ??73, being the amount of such judgment and costs.
The questions presented for our consideration are:
1. Can these funds be subjected in any manner to the payment of claims of judgment creditors of Thomas Dorris."
2. Can they be thus subjected in the manner here adopted.
The uniform rule in England, since the decision in Brandon v. Robinson (18 Ves. 433), has been that a donor?? creating a life estate, could not take away its incidents, among which are the powers of voluntary and involuntary alienation. This rule even there is subject to the exception that if the instrument creating the estate provides for its cesser or defeasance upon an attempted alienation, the restraint will be upheld; so where the estate created is a mere use at the discretion of the trustees, and the beneficiary has no power to control such discretion.
The rule thus established in England, has not met with general approval in the United States. It has been followed in Rhode Island, and the Carolinas; (Tillinghast v. Bradford, 5 R.I. 205; Heath v. Bishop, 4 Rich. Eq. 46; Mebane v. Mebane, 4 Ired. Eq. 131); questioned in some other states, and rejected in Pennsylvania, Vermont, New Jersey, Kentucky, Massachusetts, and by the supreme court of the United States. Fisher v. Taylor, 2 Rawle 33; Thackara v. Mintzer, 100 Pa.St. 151; White v. White, 30 Vt. 338; Hardenburg v. Blair, 30 N.J.Eq. 645, 661; Pope's Ex. v. Elliott, 8 B. Mon. 56; Broadway Nat. Bank v. Adams, 133 Mass. 170; Nichols' Assignee v. Eaton, 91 U.S. 716, 725.
The case of Campbell v. Foster (35 N.Y. 366), is claimed also as being opposed to the English rule, but as that decision turned exclusively on the jurisdiction?? the court, under certain provisions of the code, the c?? is hardly tenable.
In this state, the question has never met with ?? direct adjudication, although it was incidentall ?? cussed in McIlvaine v. Smith (42 Mo. 45), and Mon?? v. Crane (12 Mo.App. 582).
We are thus left at liberty to follow either the English rule or that adopted by the majority of the American courts, whichever in our opinion is most consonant with reason and a sound public policy.
Justice Miller discusses the question with his usual clearness in Nichols v. Eaton, supra, and shows that the policy of the law in regard to creditors is essentially different in England and the United States; that while the rights of creditors are scrupulously guarded here as there, yet the legislation in almost all the states, has recognized the paramount right of the debtor not to be wholly stripped of the means of subsistence. The learned judge cites in...
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