Leigh v. Harrison

• Decision Date: 28 March 1892
• Citation: 69 Miss. 923,11 So. 604
• Court: Mississippi Supreme Court
• Parties: F. M. LEIGH v. THOMAS HARRISON ET AL

11 So. 604

69 Miss. 923

F. M. LEIGH v. THOMAS HARRISON ET AL

Supreme Court of Mississippi

March 28, 1892

FROM the chancery court of Lowndes county, HON. T. B. GRAHAM Chancellor.

The opinion states the facts.

Affirmed.

R. C Beckett, for appellant.

There is no clause in this will against alienation, no provision for forfeiture, nor that the income shall be liable for Thomas Harrison's debts; no provision that it shall only be paid on his written order, and no provision that it shall only be paid to him personally. He has an absolute unqualified right to it, the only limitation being that it shall be paid quarterly. The unbroken current of English decisions, the great majority of American cases, and of those in the southern states, are to the effect that the income and profits in such a case can be reached in equity by creditors, and this even where there is a clause against alienation. 1 Dev. & B. Eq. (N. C.), 480; 4 Rich. Eq. (S. C.), 46; 56 Ga. 183; 10 Ala. 702; 65 Ib., 134; 4 Ired. Eq. (N. C.), 136; 86 Ky. 159, 162; 49. Mo. 45; 10 Gratt., 336, 339, 348; 5 Wall., 433, 441; 36 Conn. 18, 22; 5 R.I. 205; 54 Iowa 311; 80 Ib., 436, 442; 5 Paige, 585-587; 4 Halst. (N. J. L.), 115; 18 Ves., 429; 2 Devlin on Deeds, § 965, note 5; 3 Redf., Wills, p. 494, 495, and notes; 1 Perry on Trusts (4th Ed.), §§ 386, 386a, 386b, 387, 388; 136 Pa. 153; 125 Mass. 263, 266, 267; 7 Lea, 353; 10 Ib., 392; 29 Mich. 78, 79-81, 107.

In Smith v. Towers, 69 Mo. 84, it is said: "The English decisions are all one way," and "a majority of the American decisions" are to the effect that a man cannot by will so tie up the income of an estate that it cannot be reached by creditors. The decisions of the United States supreme court cannot be regarded as authority for a contrary position, since in Spindle v. Shreve, 111 U.S. 542, it is said "limits within which such provisions may be made must be found in the law of that jurisdiction which is the situs of the property." See, also, Nichols v. Levy, 5 Wall., 433.

I call especial attention to Rudd v. Hagan, 86 Ky. 159, which was decided under a statute similar to § 1204, code 1880.

As to the right to resort to equity, see Pressly v. Rodgers, 24 Miss. 520.

"Certainly property available for pleasure or profit, should also be amenable to the demands of justice." 5 R.I. 212.

Restrictions against alienation were first introduced into settlements on married women, and have in some instances been erroneously extended to persons sui juris. 1 Dev. & B. (N. C.), 484; 4 Rich. (S. C.), 50, 51.

The exception in favor of trusts for married women is the solitary exception ingrafted on the rule. Perry on Trusts, § 386.

J. A. Orr, for appellees.

The argument that, under the provisions of this will, creditors of Thomas Harrison can take nothing, is so sensibly and lucidly made by so many able judges in numerous cases, I will confine myself to mere citation. Pope v. Elliott, 8 B. Mon., 61. The Kentucky statute is much the same as § 1204, code 1880; 21 Conn. 8; 27 Ala. 175; 86 Tenn. 81. This case sustains the trust independently of the Tennessee statute. 96 Mo. 480; 59 Vt. 530; 69 Md. 77; 19 At. R., 1058; Garland v. Garland, 87 Va. 758.

Blewett Harrison Lee, on the same side.

The following propositions may be laid down as to this trust:

1. It is an active, as distinguished from a dry or passive trust. It is to continue after the death of Thomas Harrison, as shown by the remainder to the trustee. The land is to be divided by the trustee both before and after Thomas' death. The trustee is to rent the land and loan the money. The rentals and interest are to be used, not by the cestui que trust, as in the case of A. B. Harrison in item five of the will, but by the trustee herself, for the sole purpose of supporting Thomas during his life. The only part the latter takes in the administration of the trust is simply to be supported.

2. Upon the proper construction of the will, the trustee has a discretion in the application of the trust funds, since it is given for the support of Thomas during his life. The only thing which militates against this view is the provision that payments should be made to Thomas quarterly, but the obvious purpose of this is to save him from the humiliation of having his bills sent directly to the trustee, and to protect the latter from unnecessary and irregular demands. This is, however, a mere matter of administration--a part of the machinery--and cannot defeat the purpose of the trust.

3. The trust is for a specific purpose only--" for the support of Thomas during his life." The amount of support is ascertainable with reasonable certainty. 23 W.Va. 685.

If there is any surplus above the support, the trustee will take the same beneficially. 1 Sim. (N. S.), 92.

The fact that Thomas was insolvent when the will was made, shows the intention of the testator. This fact, in connection with the other, that the shares of the other children were given absolutely, is conclusive that the fund was meant to be protected against creditors of Thomas. 135 Pa. 585; 139 Ib., 276; Prewett v. Land, 36 Miss. 495.

In Pressly v. Rodgers, 24 Miss. 520, the statute preserved in § 1204, code 1880, is held to apply only where the trustee has nothing but a naked, dry legal title, with the whole benefit in the cestui que trust. See, also, Carpenter v. Bowen, 42 Miss. 28.

Since the intention of the testator is clear as to the object and purpose of the bounty, the only question is, whether there is any illegality in the gift. It is not a case of a repugnant provision, where the limitation is inconsistent with the grant. 141 U.S. 296. Nor does the question whether an equitable life-estate can be made subject to the restraint on alienation properly arise in this case. This is not a case of a vested equitable estate at all. It is a case of a trust, created for a specific purpose only. See Perry on Trusts, § 386a; 59 Vt:, 530; 8 Mon., 56.

There is a difference between a life-estate and a fee, with regard to restraints on alienation. 6 T. R., 684; L. R. (3 Eq.), 315; 96 Mo. 439; 18 Vesey, 429; 91 U.S. 716.

Trusts are frequently created in England in favor of spendthrifts, with gifts over in case of insolvency, or on the discretion of the trustee, and this seems to be permitted everywhere. There is no more reason why trusts in favor of spendthrifts not be maintained than those in favor of married women. See Lampert v. Haydel, 96 Mo. 439; 35 N.Y. 361; 51 Ib., 338; 133 Mass. 170; 111 Ill. 247.

As to the distinction between active and passive trusts, see 59 Pa. 393; 47 Ib., 113; 21 Conn. 1.

OPINION

Per curiam.

The appellant is a judgment creditor of Thomas Harrison, and has sued out execution on his judgment, which has been returned nulla bona. He then exhibited his bill in the chancery court of Lowndes county against his debtor and against Mrs. Regina Lee, executrix of the last will and testament of Mrs. Regina Harrison, and trustee thereunder for said Thomas Harrison, and against James T. Harrison, who, under the will of Mrs. Harrison, was devised an undivided interest in certain lands, the other interest therein having been, by said will, devised to Mrs. Lee for the life of Thomas Harrison upon the trusts which appear. As to James T. Harrison, the only relief sought is partition of the lands devised as is directed by the will.

The will of Mrs. Harrison is as follows:

"I Regina Harrison, make and publish this my last will and testament.

"Item 1. My residence and the lot on which it is built, being square 17, north of Main street, in the city of Columbus, I give to my two daughters, Regina L. Lee and Mary B. Harrison. All of the personal property, such as books, furniture, etc., in and about the house and on the lot, I give to my daughter, Mary B. Harrison, except my silver plate, and that will be equally divided by and between my said daughters; and to them I give my lot in the cemetery.

"Item 2. I give to my daughter, Regina L. Lee, in trust for the life of my son Thomas, with the remainder to her, three thousand dollars, and two-thirds of my plantation in Leflore county, being the same owned by my husband, and for fuller description of the land, I refer to the deed which vested the title in him, the land to be divided so that the improvements are to be on the two-thirds of the number of acres in the tract given her. She will rent the land and lend the three thousand dollars to the best advantage, and use the rents and the interest on the three thousand dollars for the support of Thomas during his life, making quarterly payments to him until his death. Then, the money, at the death of Thomas, to vest in my daughter, Regina, or, if she is not living, in her son, Blewett H. Lee, Mary, James T. and A. B. Harrison in equal parts.

"Item 3.--I give to my son, James T. Harrison, three thousand dollars, and the remaining one-third in acres of the tract of land described in item 2; the tract will be divided by metes and bounds.

"Item 4.--At the death of Thomas, the two-thirds of the place, as described in item 2, to be divided between my daughters, Regina and Mary, and my son, A. B. Harrison, in this proportion: Regina, or her son, Blewett H. Lee, if she, at the time of the death of Thomas, is not living, is to have one-half, and the other half of the lands given in trust for Thomas is to be equally divided between my daughter, Mary, and son, A. B. Harrison.

"Item 5.--I give to my daughter, Regina, three thousand dollars, in trust for my son, A. B. Harrison, the interest to be used by him during his life.

"Item 6.--My daughter, Regina, can appoint a successor in her trust created in item 2.

"Item 7.--The residue of my estate, not herein bequeathed, is given to, and to be divided equally...