Mebane v. Mebane

• Decision Date: 31 December 1845
• Court: North Carolina Supreme Court
• Parties: JAMES MEBANE v. ALEXANDER MEBANE et al.

4 Ired.Eq. 131

39 N.C. 131

44 Am.Dec. 102

JAMES MEBANE

v.ALEXANDER MEBANE et al.

Supreme Court of North Carolina.

December Term, 1845.

A. devised certain property to a trustee, in trust to apply the proceeds to the maintenance of his son, and with a proviso that no part of the property should be subject to the debts of his said son. Held, that this proviso was inoperative, and the creditors of the son had a right to have their claims paid out of the property.

By the use of no terms or art can property be given to a man, or to another for him, so that he may continue to enjoy it, or derive any benefit from it, as the interest, or his maintenance thereout or the like, and at the same time defy his creditors and deny them satisfaction thereout.

The only manner, in which creditors can be excluded, is to exclude the debtor also from all benefit from, or interest in, the property, by such a limitation, upon the contingency of his bankruptcy or insolvency, as will determine his interest and make it go to some other person.

The cases of Dick v. Pitchford, 1 Dev. and Bat. Eq. 480, and Bank of the State v. Forney, 2 Ired. Eq. 184, cited and approved.

Cause removed from the Court of Equity of Orange County, at the Fall Term, 1845.

The following were the facts of the case:

David Mebane, by his will, dated April 7th, 1842, gave to Alexander Mebane in fee, a tract of land, called the Hodge Place, and four slaves, “in trust for my son Anderson; and the said Alexander, as trustee, may at any time take possession of said land and negroes, and lease the land and hire the negroes, and apply the proceeds to the maintenance of my son Anderson--it being my will and intention, that the aforesaid property shall not in any wise be subject to the debts of my said son Anderson.” In a subsequent clause, the testator added: “I give unto my son Alexander, all the horses, cattle, hogs, and the farming utensils on the Hodge Place, and also one bed and furniture, in trust, nevertheless, for my said son, Anderson; it being my will and intention, that the said property shall not in any wise be subject to the debts of said Anderson. It is also my will, if the said Anderson should die without issue, that then the Hodge Place shall belong to my grand-son, Thomas R. Mebane.” By other clauses of the will, the testator gave to his son Anderson a share, with his other children, of the debts that might be owing to him at his death, but directed that his son Alexander, as the money might be collected, should, “as trustee, take possession of it, and pay it over in the manner directed in the former clauses of this will.”

The plaintiff is a judgment creditor of Anderson Mebane; and, after a return of nulla bona on a fieri facias, he filed this bill against Anderson Mebane and Alexander Mebane, for satisfaction out of the trust property. The answers raise the question, whether the property is liable to the debts. The trustee further states, that in the maintenance of his brother Anderson, who is blind, and in necessary expenditures in conducting the farm, he has anticipated the income about $200; and he submits that at all events he has a right to be reimbursed what he shall be found to be in advance.

Badger. for the plaintiff .

Norwood and Iredell, for the defendants .

RUFFIN, C. J.

In the case of Dick v. Pitchford, 1 Dev. and Bat. Eq. 480, the question arose upon a conveyance of negroes to one, in trust, annually to apply the profits to the use of the donor's son, H. P., so that they should not be subject to be sold or disposed of by H. P., or the rents and profits anticipated by him, or in any manner subject to his debts; and it was held, that the son's conveyance was, nevertheless, effectual to pass his interest, as cestui que trust, for the term of his life. The doctrine rests upon these considerations: that a gift of the legal property in a thing includes the jus disponendi, and that a restriction on that right, as a condition, is repugnant to the grant, and therefore void: And that, in a Court of Equity, a cestui que trust is looked on as the real owner, and the trust governed in this respect by the same rules which govern legal interests; and, consequently, that it is equally repugnant to equitable ownership that the owner should not have the power of alienating his property. There is, indeed, an exception to that general rule, which is founded on the peculiar incapacities of married women, and their subjection to their husbands. A gift in trust for the separate use of a married woman, or in contemplation of her marriage, may be coupled with a provision against alienation or anticipation; for, in truth, the restriction is imposed for her protection, and, as she is sub potestate viri, it will more frequently operate as a beneficial protection, than in prejudice to her. But restraints, as conditions merely, upon alienation by a person sui juris have been held in a great number of cases to be null, as regards property given through the medium of a...