Reid v. Safe Deposit & Trust Co.

Page, J., delivered the opinion of the Court. The only question in this case is whether the net income due Mrs. Louisa Presbury, of property in the hands of the trustee under the will of George G. Presbury, is attachable for the debt of the cestui que trust. The appellee, who is the garnishee, became trustee by appointment of Court, in the stead of the original trustees, with the same powers and duties as were conferred on and required of the latter bj. the terms of the will. The j udgment, on which the attachment issued, was obtained on a promissory note given by Mrs. Presbury in payment of bills for groceries and articles of necessity furnished to her by the appellant.

The question involved turns upon the construction of the first item in the will. By that the testator devises and bequeaths to Frank X. Jenkins and Charles R. Goodwin, &c., all the property, real, personal and mixed, of which he died, seized and possessed, "in trust, to hold and manage the same and collect, &c., and to pay the net proceeds from time to time to my wife, Louisa Presbury, for the term of her natural life, and especially so that the same shall not be liable for the debts or contracts of any future husband, or in any manner subject to his control, or to be taken in execution or attachment or otherwise howsoever, and so that she shall not pledge or anticipate said property or said net proceeds of income, or any part thereof.” It appears also, by the agreed statement of facts, that the trustee has now in its hands the sum of $271.42, net income, and that the ap ⁴⁶⁶ praised value of the estate at the time of the death of the testator was $139,000. On the part of the appellant it is contended, that the testator did not intend to create a spendthrift trust, but for a coverture trust with provision against alienation and anticipation only in the event of the marriage of Mrs. Presbury. It has always been settled law in England, that upon the gift or grant of a fee-simple or life-estate, legal or equitable, restraints upon the power of the alienee to alienate the estate and to charge it with debts, are repugnant to the grant and void, unless there is also a provision operating as a cesser or limitation of the estate over.

But to that there is an exception by which restraints on alienation or anticipation are allowed in case of married women. This exception is “ purely an equity doctrine, the invention of the Chancellor’s ” * * “ and was justified on the ground that it was the only way, at least the best way of giving property to a married woman.” Buckton v. Hay, 11 Ch. Div. 645; T ulett v. Armstrong, 4 Myl. & Cr. 377; Gray on Restraints on Alienation, sec. 142. In Brandon v. Robinson, 18 Ves. 434, the Chancellor in speaking of married women’s trusts said, that Lord Thurlow “ did not attempt to take any power the law gave her, as incident to property, which being a creature of equity, she could not have at law; but as under the words of the settlement it would have been her’s