Smith v. Towers

• Decision Date: 17 August 1888
• Citation: 15 A. 92,69 Md. 77
• Parties: SMITH v. TOWERS.
• Court: Maryland Court of Appeals

15 A. 92

69 Md. 77

SMITH v. TOWERS.

Court of Appeals of Maryland

August 17, 1888

For majority opinion, see 14 A. 497.

ALVEY C.J., (dissenting.)

I am quite aware that dissenting opinions are often regarded as useless and ungracious work; but, with my settled convictions in regard to the principles involved in this case, I cannot do otherwise than enter my dissent from the opinion of the majority of the court; and I think it proper to state the reasons of that dissent. This is an attachment proceeding instituted to reach and subject to condemnation the rights and interests of Robert I. W. Garey, the debtor, accruing under his father's will,--such interests being in the hands of a trustee, in whom the legal estate in the land is vested, and whose duty it is, by the terms of the will, to receive and pay over the annual rents and profits of the estate to the son for life. This right and estate of the son is limited by the testator, thus: "That he [the trustee] shall pay or cause to be paid unto my son, Robert I. W Garey, as the same may accrue, the net rents, income, and profits arising from said farm and property, after deducting such sums of money as may be necessary to satisfy and pay the taxes and assessments levied thereon, and needful repairs to buildings and fencing; and also a sum sufficient to purchase fifteen hundred bushels of lime during each year for the space of twelve years, to be applied to the fields of said farm as they are cultivated in corn; the said net rents income, and profits to be paid to the said Robert I. W Garey, (into his own hands, and not into another, whether claiming by his authority, or otherwise,) so long as he, the said Robert I. W. Garey, shall live; and from and after the death of him, the said Robert I. W. Garey, then in trust," etc. It is insisted, on the part of the debtor the devisee for life, that the right and estate devised to him by the clause of the will just quoted cannot be made liable to the payment of his debts, and that he is entitled to receive and enjoy the rents and income of the estate for his life, in utter defiance of all effort by his creditors to reach such rents and income by legal process. And this contention is fully sustained by the opinion of the majority of the court, but to which I cannot for a moment assent. Upon the contention of the debtor, the beneficial devisee for life, two questions arise-- First, whether the testator, by devising the legal estate to a trustee, with directions to pay over the rents and profits to the son for life, could lawfully impose a restriction upon the ordinary right of alienation of such equitable life-estate, or protect such estate from all liability for the debts of the son, without any cesser of the estate devised; and, secondly, whether, if the testator had such right, he has effectually exercised the same by the terms employed in the will.

1. As will be observed, there is no cesser or termination of the estate provided for, in respect to the devise to the son, in the event of attempted alienation, or seizure by creditors. The rents and profits of the farm are simply directed to be paid over to the son himself for life, and no alternative or contingent disposition is made of them whatever. There is certainly, as ob served by Lord ELDON, in Brandon v. Robinson, 18 Ves. 432, an obvious distinction between a disposition to a man until he becomes bankrupt, and then over, and an attempt to give him property, and to prevent his creditors from obtaining any interest in it, though it is his absolutely for life or in fee. I had supposed that if there was any principle well settled in the law of property, it was that upon any gift or grant of a beneficial fee-simple or life-estate, whether legal or equitable, there was an incident pertaining to such estates that could not be served, and that was the right and power of the donee or grantee to alienate the estate, and to charge it with his debts; and that any attempt to restrain the exercise of such right and power, except by way of cesser or limitation over of the estate, would be regarded as repugnant to the estate, and therefore without effect. This is certainly the well established doctrine in that system of jurisprudence from which we derive both the principles of the common law as applied here, and the principles and doctrine of trusts as applied and enforced by our courts of chancery. And it is an undeniable proposition that, as a general rule, courts of equity, in regard to trustestates, adopt the rules of law which are applicable to legal estates; or, in other words, in regard to trusts, the analogy to estates at the common law is not only followed, as to the rights and interests of the cestui que trust, but also as to the remedies to enforce, preserve, and extinguish those rights and interests. 1 Sand., Uses & Trusts, 269; 2 Story, Eq. Jur. §§ 974 a, 975. According to the rule of the English law, therefore, whatever rights in property a man may acquire and hold beneficially, whether legal or equitable, he may alienate; and it is equally clear that whatever a man can demand of his trustee his creditors may demand of him. And this is upon the plainest principles of morality and common honesty, as well as upon reason and a sound public policy. As I have already stated, there is no reverter to the estate of the testator, or limitation over, upon any attempted alienation or seizure of the interest of the devisee for life, by creditors.

But it is supposed that the interest of the devisee for life is effectually hedged against his creditors by the simple direction that the rents and income should be paid "into his own hands, and not into another, whether claiming by his authority or otherwise." To such contention I cannot assent. The whole theory and history of the English law is against such contention. In Co. Litt. 223 a, Sir Edward Coke in his commentary upon section 360 of Littleton, which treats of conditions against alienations as being void, says: "The like law is of a devise in fee upon condition that the devisee shall not alien; the condition is void; and so it is of a grant, release, confirmation, or any other conveyance, whereby a fee-simple doth pass. For it is absurd and repugnant to reason that he, that hath no possibility to have the land revert to him, should restrain his feoffee in fee-simple of all his power to alien. And so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel, reale or personale, and give or sell his whole interest or propertie therein, upon condition that the donee or vendee shall not alien the same, the same is void because his whole interest and propertie is out of him, so as he hath no possibilitie of a reverter; and it is against trade and traffique, and bargaining and contracting between man and man." And in Butler's note to the commentary on the next section of Littleton, it is said that "a power of suffering a common recovery, and of levying a fine within the statute of 4 Hen. VII. and 32 Hen. VIII., is so inseparably inherent to the estate of a tenant in tail that any condition or proviso restraining or prohibiting it is held to be repugnant to the nature of the estate, and therefore void." Such then being the well-settled and established principle in respect to the grant or devise of estates in fee-simple or fee-tail, (and this I do not understand to be anywhere controverted,) why should there be a different principle applicable to estates for life? The reason of the principle against restraint of alienation and liability for debts is the repugnancy of such restraint to the ordinary rights of property, and that property would thereby be withdrawn from the ordinary rules and channels of commerce and traffic among men. Why should a life-estate, either legal or equitable, be tied up and fettered, it may be, for the greater part of a century, when the restraint upon alienation, either voluntary or by process of law, of an estate in fee or fee-tail will not be tolerated at all? The English courts have consistently and steadily refused to recognize any such distinction, but treat the right of alienation and liability for debts as inseparable incidents of the life-estate, whether limited by way of trust or otherwise, except where there is a reverter or a cesser of the estate, dependent upon an attempted alienation or seizure by creditors. This was laid down by Lord ELDON in Brandon v. Robinson, supra, not as a novel or newly-invented rule of property, but as the settled law of England; and in the course of his opinion he referred to the old case of Foley v. Burnell, 1 Brown, Ch. 274, in regard to which he said: "A great variety of clauses and means were adopted by Lord Foley with the view of depriving the creditors of his sons of any resort to their property; but it was argued here, and, as I thought, admitted, that, if the property was given to the sons, it must remain subject to the incidents of property; and it could not be preserved from the creditors, unless given to some one else." And in referring to this attempt on the part of Lord Foley to exclude the creditors of his sons by the nature of the trusts created under his will, Charles Butler, the distinguished real-estate lawyer, and annotator of Coke upon Littleton, in note 132 to that work, at page 223 b, (published in 1791,) says: "The illusory nature of estates and trusts of this description raises a powerful objection to them on the ground of policy; nor are they, perhaps, quite reconcilable to some of the fundamental principles of our law. Serious consequences, it is presumed, would ensue their coming into general or even frequent use."

There are many cases in which the rule has been stated and applied but in none more clearly than in Rochford v....