Wemyss v. White
| Decision Date | 16 September 1893 |
| Citation | 34 N.E. 718,159 Mass. 484 |
| Parties | WEMYSS v. WHITE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.F. Means, for plaintiff.
F Ranney, for defendant.
It was held, after much consideration by this court, in Bank v Adams, 133 Mass. 170, that a person having the right to dispose of property may settle it in trust in favor of another, with the provision that the income shall not be alienated by the beneficiary by anticipation, or be subject to be taken by his creditors in advance of its payment to him, although there is no cesser or limitation of the estate in such an event. This case distinctly repudiated the doctrine of the English courts of equity, which is "that, when the income of a trust estate is given to any person (other than a married woman) for life, the equitable estate for life is alienable by, and liable in equity to the debts of, the cestui que trust; and that this quality is no inseparable from the estate that no provision, however express, which does not operate as a cesser or limitation of the estate itself, can protect it from his debts." Id. 172, per Morton, C.J. As the English doctrine does not obtain in this commonwealth, we have no occasion to consider the numerous cases cited from the English reports in support of the plaintiff's contention. The effect of the decision in Bank v. Adams is to put an equitable cestui que trust upon the same footing as a married woman under the English decisions. The question in every case is whether an equitable cestui que trust takes an absolute, unqualified interest, which he can assign, and which can be reached by his creditors, or whether he takes merely a qualified interest, over which he has no power until the property principal, or income comes into his possession. This question is determined by ascertaining the intention of the creator of the trust, it being held in Bank v. Adams that the intentions of the creator of the trust "ought to be carried out unless they are against public policy," and that the power of alienating in advance is not a necessary attribute or incident of a qualified estate or interest, so that the restraint of such alienation would introduce repugnant or inconsistent elements. Id. 173. In Bank v. Adams the intention was expressed in clear and unequivocal words. The gift was of a certain sum of money to executors, in trust, to invest and pay the net income thereof to a brother of the testator, "free from the interference or control of his creditors;" the testator declaring his intention to be "that the use of said income shall not be anticipated by assignment." See, also, Claflin v. Claflin, 149 Mass. 19, 20 N.E. 454; Billings v. Marsh, 153 Mass. 311, 26 N.E. 1000. "Such provision need not be in express terms, but it is sufficient if the intention is fairly to be gathered from the instrument when construed in the light of the circumstances." Baker v. Brown, 146 Mass. 368, 371, 15 N.E. 783; Slattery v. Wason, 151 Mass. 266, 23 N.E. 843. The case at bar resembles very closely that of Hall v. Williams, 120 Mass. 344. There the residue of the property was devised to trustees to pay the balance of the income, after paying certain annuities, in equal parts to the seven children of the testator. Then followed a provision that, if either of the recipients should be "wanting in thrift or care, or a sound discretion in the use of money," the trustees were "charged with paying and disbursing the same in such way or ways as shall be most likely to make the same inure and be beneficial" to such recipient. It was held that this vested in the trustee a large discretion as to the time and manner of payment, and that a child could not assign or otherwise dispose of his share of the income in advance...
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