Bucknam v. Bucknam

• Citation: 294 Mass. 214,200 N.E. 918
• Parties: BUCKNAM v. BUCKNAM et al.
• Decision Date: 02 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 214

200 N.E. 918

BUCKNAM

v.BUCKNAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1936.

Suit in equity by Mary Helen Bucknam against Robert Horton Bucknam and others. From an interlocutory decree sustaining a demurrer by defendants Burrage and the State Street Trust Company, plaintiff appeals, and from the final decree, plaintiff and the named defendants appeal.

Affirmed.

Appeal from Superior Court, Suffolk County; Gray, Judge.

A. L. Taylor and E. C. Parks, both of Boston, for plaintiff.

A. Brayton and G. D. Burrage, both of Boston, for Burrage and another, trustees.

LUMMUS, Justice.

Mary Helen Bucknam died on July 13, 1929, leaving a husband, a daughter and a son, the defendantRobert Horton Bucknam, who was born on December 5, 1909. Half the residue of her estate was given by her will to the defendant George D. Burrage and State Street Trust Company, as trustees, in trust to expend ‘so much of the net income of said fund as is in their judgment necessary or proper for the education, maintenance or support of my said son’ until he shall reach the age of twenty-five years. He reached that age on December 5, 1934. The will continued: ‘When my said son reaches the age of twenty-five years the trustees shall pay over to him semi-annually or oftener in their discretion the net income of said trust fund until he shall reach the age of thirty years and thereupon shall pay over to him the principal of said trust fund free and discharged of all trusts.’ If he shall die without issue before reaching the age of thirty years, the trust fund is to pass to his sister or her issue. The seventh paragraph of the will provided: ‘All provisions in this will and any codicil contained for any payment or benefit to any person are subject to the further provision that such payment or benefit shall not be subject to be alienated or anticipated by the beneficiary or to be reached or applied by any creditor of the person entitled thereto.’

Robert Horton Bucknam, on February 12, 1929, married the plaintiff in Massachusetts. Matrimonial difficulties arose, and on June 3, 1932, at Kansas City, Missouri, a separation agreement was entered into between them, by which he agreed to pay her $625 quarterly during her life. The agreement provided: ‘All interest of the [said] Robert in the estate of his deceased mother and in the trust created by her will is to the above extent hereby bound with a first lien and is assigned to Theresa accordingly; and the Trustees of said estate and/or Trust are hereby authorized and directed to recognize and act [sic] herof and pay to Theresa the sums above recited, and for so doing this shall be their full warrant and discharge.’ It was further provided that the foregoing provision for Theresa might be made a part of any decree of divorce.

The only child of the marriage, David Horton Bucknam, was born subsequently on February 19, 1933. On February [294 Mass. 216]16, 1934, the plaintiff brought a libel for divorce in a court of conpetent jurisdiction at Kansas City. The defendant Robert Horton Bucknam appeared and answered. On March 14, 1934, after hearing, a decree of divorce was entered, awarding the custody of the child to the plaintiff, and awarding her $150 a month as alimony with $50 additional a month for the maintenance of the child, payable on April 13, 1934, and quarterly thereafter. The decree continued: ‘That by and with the consent of defendant in open Court, the Trustees of the Estate of Mary Helen Bucknam, deceased, holding a trust in favor of the defendant, are authorized and empowered from time to time, out of any trust funds due or to become due to defendant, to pay the above sums direct to plaintiff and charge the same to the account of defendant.’ The trustees were not before the court in the divorce proceedings.

The defendant Robert Horton Bucknam, on June 1, 1935, was in arrears to the extent of $1,800 in the performance of the divorce decree. On June 10, 1935, the plaintiff brought this bill against said defendant and the trustees, to reach and apply the accumulated and accumulating income in the hands of the trustees for the satisfaction of the payments required by the divorce decree. The trustees demurred on five grounds. The judge sustained the demurrer on the third ground, which was that the seventh paragraph of the will prevented the reaching the application of income. The bill was accordingly dismissed, ‘without prejudice,’ and the plaintiff appealed. The trustees also appealed from the dismissal without prejudice.

The seventh paragraph of the will prevented the defendant Robert Horton Bucknam from making an effectual assignment of his interest in the trust fund, and prevents his creditors, as it would prevent a trustee in bankruptcy, from reaching his interest therein. Only money or property which from time to time may become his property free from trust, such as instalments of income actually paid him, may be assigned, or reached by creditors. Nothing remaining in the trust, whether principal or income, can be taken by an assignee or a creditor. As to this, the law of this Commonwealth is well settled. Broadway National Bank v. Adams, 133 Mass. 170, 43 Am.Rep. 504;Pacific National Bank v. Windram, 133 Mass. 175;Slattery v. Wason, 151 Mass. 266, 23 N.E. 843,7 L.R.A. 393, 21 Am.St.Rep. 448;Lathrop v. Merrill, 207 Mass. 6, 92 N.E. 1019;Hale v. Bowler, 215 Mass. 354, 102 N.E. 415;Boston Safe Deposit & Trust Co. v. Collier, 222 Mass. 390, 111 N.E. 163, Ann.Cas.1918c, 962;Haskell v. Haskell, 234 Mass. 442, 125 N.E. 601;Perabo v. Gallagher, 241 Mass. 207, 135 N.E. 113;Richardson v. Warfield, 252 Mass. 518, 148 N.E. 141;Saltonstall v. Treasurer & Receiver General, 256 Mass. 519, 521, 153 N.E. 4;Shelton v. King, 229 U.S. 90, 33 S.Ct. 686, 57 L.Ed. 1086;Eaton v. Boston Safe Deposit & Trust Co., 240 U.S. 427, 36 S.Ct. 391, 60 L.Ed. 723.

Whether the interest of a beneficiary under a spendthrift trust such as is created by the sevent paragraph of the will in question, can be reached and applied for the support of a child, the wife, or a former wife of the beneficiary, has been the subject of few, but conflicting, decisions. Such an interest has been reached for the satisfaction of a decree for alimony in some cases, on the principle, applied in the bankruptcy case of Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009, and the income tax cases of Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211, and Douglas v. Willcuts, 296 U.S. 1, 8, 56 S.Ct. 59, 80 L.Ed. 3, that a decree for alimony does not create the relation of debtor and creditor but merely makes specific the general obligation to support, and therefore is not within a provision barring creditors from reaching the interest of the beneficiary. England v. England, 223 Ill.App. 549;Tuttle v. Gunderson, 254 Ill.App. 552. Am.Law Institute Restatement, Trusts, § 157. See, also, Wetmore v. Wetmore, 149 N.Y. 520, 44 N.E. 169, 33 L.R.A. 708, 52 Am.St.Rep. 752. Other decisions have denied relief in such cases, treating a divorced wife for this purpose as an ordinary creditor. Eaton v. Eaton, 81 N.H. 275, 125 A. 433, 35 A.L.R. 1034;Id., 82 N.H. 216, 132 A. 10;De Rousse v. Williams, 181 Iowa, 379, 382, 164 N.W. 896;Gilkey v. Gilkey, 162 Mich. 664,127 N.E. 715.

In Foster v. Foster, 133 Mass. 179, a divoced wife, with a minor child in her custody, having an unsatisfied decree for alimony, brought a bill against James Foster, her former husband, and the trustees under his father's will, to reach and apply in satisfaction of her decree the interest of James in a trust under which the trustees were ‘from time to time, during the life of my son James, to pay the net rents and income, at their discretion, to the said James Foster; or, at their discretion, to pay & apply said net rents and income, from time to time, and during any such times as they shall deem it expedient, to the personal benefit and comfort of the said James Foster, or such member or members of his immediate family as the Trustees for the time being shall from time to time think proper: it being my will and direction, that the rents and income aforesaid are to be in no wise liable to the debts, control or engagements of the said James Foster; that he shall have no power or right to dispose of, or affect the said rents or income, by way of sale,...