Baker v. Brown 

• Decision Date: 03 March 1888
• Citation: 15 N.E. 783,146 Mass. 369
• Parties: BAKER v. BROWN et al. ROWE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 369

15 N.E. 783

BAKER

v.BROWN et al.

ROWE

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1888.

Appeal from superior court, Middlesex county.

The first of these cases was a bill in equity by George M. Baker against Joseph D. Brown, the elder, Abby Brown, Mary Brown, and Joseph D. Brown, the younger; the latter as executor of the will of Lucy R. Brown, deceased. The second case was by Moses E. Rowe against the same defendants. The plaintiff in each case set forth that the said Lucy R. Brown died seized of certain real estate and personal property; that in her will she gave the residue of her estate to her daughters, the defendants Abby Brown and Mary Brown, upon condition that they support their father, Joseph D. Brown, the elder, during his life; and that the plaintiffs were judgment creditors of the said Joseph D. Brown, the elder; and they prayed that the said Abby and Mary Brown be restrained from alienating or transferring the interest of their father under the will, and that they be ordered to pay over to the plaintiffs such sums of money as should be found by the court to be equivalent to the fair and reasonable expense of the support of said Joseph D. Brown, the elder, until the amount of plaintiff's judgment should be satisfied. The superior court sustained demurrers filed by the defendants, and dismissed the bills, and the plaintiffs appealed. Other facts are stated in the opinion.

E.G. Loomis, for plaintiff.

The estate is to Abby and Mary Brown in fee, upon a trust in favor of Joseph D. Brown, Sr., and is not an estate upon condition. 2 Washb. Real Prop. 3; Taft v. Morse, 4 Metc. 523;Stanley v. Colt, 5 Wall. 165. In the case at bar, if the devise to Abby and Mary Brown be construed as of an estate on condition, the right of entry for condition broken would be in these daughters, and in the other heirs of the testatrix, and not in the judgment debtor. A breach of condition would work a forfeiture, defeat the devise, and let in the heirs. Stanley v. Colt, supra. The equitable interest of Joseph D. Brown, Sr., in said estate of Lucy R. Brown, can be applied to the payment of his debts as prayed for in said bills. Snowden v. Dales, 6 Sim. 524; Page v. Way, 3 Beav. 20; Younghusband v. Gisborne, 1 Colly. 400. The provision in the will of Lucy R. Brown in favor of Joseph D. Brown, Sr., is of the nature of a legacy, and can be enforced either by a bill in equity, or, if in arrears, by an action at law. Pub.St. c. 136, § 19; Farwell v. Jacobs, 4 Mass. 634;Baker v. Dodge, 2 Pick. 619;Swasey v. Little, 7 Pick. 296;Crocker v. Crocker, 11 Pick. 252;Pinkerton v. Sargent, 112 Mass. 110, 113;Henry v. Barrett, 6 Allen, 500;Sheldon v. Purple, 15 Pick. 528;Sherman v. Sherman, 4 Allen, 392. The judgment debtor is the only cestui que trust. “Although trustees have a discretion as to the time, mode, or amounts in which a trust fund is to be applied for the cestui que trust, yet if no one else has any interest in the fund, it can be taken for his debts.” Gray's Restraints on Alienation, p. 73 § 116. Daniels v. Eldridge, 125 Mass. 356. In Forbes v. Lothrop, 137 Mass. 523, the remedy sought and granted was “the right to receive accruing income, which is clearly liable to creditors unless it is so limited as to restrain alienation.” The only difference between the case at the bar and that last cited is in the measure of income of legatee. The will affords no evidence of intention that the interest of Joseph D. Brown, Sr., should not be liable for his debts, and such limitation cannot be supplied by implication. Sparhawk v. Cloon, 125 Mass. 267;Pickens v. Dorris, 20 Mo.App. 1. The annual value of the estate created can be ascertained. It would be an unreasonable and strained construction of this bequest to consider it a provision for mere absolute necessities. Crocker v. Crocker, 11 Pick. 253. The annual value of the estate of the judgment debtor is measured not by the income of the trust-estate, but by the reasonable cost of support of the cestui que trust, who is not limited as to place of support, but entitled to a reasonable support, or its equivalent in cash, notwithstanding he may have the ability to support himself by other means. Parker v. Parker, 126 Mass. 433;Hubbard v. Hubbard, 12 Allen, 586;Pettee v. Case, 2 Allen, 546;Wilder v. Whittemore, 15 Mass. 262. The trust property is chargeable with the payment of the support. Sherman v. Sherman, 4 Allen, 392;Pinkerton v. Sargent, 112 Mass. 110.

S. Hoar, for defendants.

It is now well settled, in this commonwealth, that a person having the entire disposal of property may settle it in trust, in favor of another, in such a manner as to secure to the beneficiary the enjoyment of it during his life, without making it subject to be taken by his creditors for the payment of his debts. Perkins v. Hays, 3 Gray, 405;Hall v. Williams, 120 Mass. 344;Foster v. Foster, 133 Mass. 179; Bank v. Adams, Id. 170. It is a principle of construction, too well settled to need a citation of authorities, that the intention of a testator is to be ascertained by a consideration of the whole will, and that the use of particular technical words is not necessary to give effect to that intention, if it is clearly expressed without them. It has long been an established principle in England as well as in this country, that a trust fund cannot be reached by creditors when its primary object is the maintenance and support of the beneficiary. Twopeny v. Peyton, 10 Sim. 487; Godden v. Crowhurst, Id. 642; Holmes v. Penney, 3 Kay & J. 90; Foster v. Foster, 133 Mass. 179;Holdship v. Patterson, 7 Watts, 547;Ashurst v. Given, 5 Watts & S. 323; Brown v. Williamson's Ex'rs, 36 Pa.St. 338; Pope's Ex'rs v. Elliott, 8 B.Mon. 56;Nickell v. Handly, 10 Grat. 336;White's Ex'rs v. White, 30 Vt. 338;Russell v. Grinnell, 105 Mass. 425. It is to be observed that this case is stronger for the defendants than most of the cases above cited. It is not a gift of the income, or part of the income, of certain property, to be applied to Joseph D. Brown's support, which would give him a vested interest in the income, limited merely as to its application. It is a gift to Abby Brown and Mary Brown, on condition that they support Joseph D. Brown. His support from day to day is what has been given by the provisions of the will, and this is not his till he has received it; hence, for this reason also, it is evident that he cannot anticipate it, and his creditors cannot attach it or take it on execution,as it is exempt by statute. Pub.St. c. 171, § 34. Moreover, the defendants Abby Brown and Mary Brown cannot fulfill the condition of the devise by supporting any one else; and neither Joseph D. Brown nor this court can call upon them to do any thing else. This court cannot give to the creditors of Joseph D. Brown any larger right than has Brown himself. Hall v. Williams, 120 Mass. 344, 346;Bank v. Adams, 133 Mass. 174. If Joseph D. Brown should voluntarily support himself, or receive his support from any other source for a limited time, it is submitted that neither he, nor, in case of his death, his administrator, could demand of Abby Brown or Mary Brown the value of his support during such limited time; yet the plaintiffs' prayer is that he should get his support from some other source than this property, or starve, and that the money value of that support should be taken from the defendants and given to them. As it does not appear that Joseph D. Brown has any other property, or means of support, to grant the prayer of the plaintiffs' bill would be contrary to the spirit of our statutes, which is to leave for the personal use of the debtor at least enough for his support. Pub.St. c. 171, § 34; Pub.St. c. 162, § 21. It is submitted that the defendant Joseph D. Brown, Jr., executor, has no interest whatever in this suit, and that he...