explanation would relieve all equitable interests from liability for execution for debts. Dictum in Fisher v. Taylor 292. It is submitted that spendthrift trusts had their origin in a dictum of the court in the case of Fisher v. Taylor." There was a gift in trust for a son for life, without liability for debts, with remainder over to his heirs, etc. The equitable interest of the son was taken in execution by the sheriff, and sold under a legal execution. The purchaser at the sheriff's sale brought an action of ejectment against the trustees, in which he could not succeed anyhow, as he acquired no greater right than his debtor had. The debtor had no right to the legal title in any event, as he had only an equitable title and the trust was active. The language of the court is not very clear, and there is some doubt as to the real thought that was in the mind of the learned judge who wrote the opinion. In the latter part of his opinion he seems to go on the ground that the plaintiff bought an equitable title. In the first part of his opinion he adopts the argument of the learned counsel for the defendant in error, that a man has a right to dispose of his property as he pleases, and consequently, to make a provision for his son, which could not be taken away from him for the payment of any debts which he might contract, and that there was no law which forbade such a disposition of the parent's parent's estate. The attention of the court was not called to the fact that there was a positive rule of law forbidding such a disposition, to wit, the acts making all property liable for debts. The remarks of the court, therefore, in this case may be regarded as ill-considered dicta. There are a number of cases where property was given in trust to the trustee to hold, manage, and use for the benefit of his family or children, he to have no interest therein excepting only an allowance for services to be rendered. It is, of course, obvious that no creditor of the trustee could seize his interest in the 7 62 Rawle, 33 (1829). Ashhurst v. Given, 5 W. & S. 323 (1843): Holdship v. Patterson, 7 Watts, 547 (1838); Brown v. Williamson, 36 Pa. 338 (1860); Rees v. Livingston, 41 Pa. 113 (1861); Heazelton's Est., 2 W. N. C. 204 (1874); DeRoy v. Richards, 8 Super. Ct. 119 (1898); Gillespie v. Miller, 37 Pa. 247 (1860). The chief controversy in these cases was between the creditors and the cestui que trust of the trust estate. It is trust estate. Any provision in the trust exempting the interest from alienation would be superfluous, in so far as the creditor of the trustee was concerned. The allowance for services would only be a compensation to the trustee, and would not subject the trust estate to his creditors. These cases are frequently cited as spendthrift trusts, and are really not in point. Vaux v. Parke 8 293. In Vaux v. Parke there was no clause against involuntary alienation, but the trustee had discretion as to transferring the real estate comprised in the trust to the cestui que trust. The interest of the cestui que trust was taken in execution and sold, and the purchaser brought ejectment against one of the other children apparently in possession who was entitled to a one-third interest therein. The plaintiff, of course, could not succeed in his action, and his only remedy, if he had any, would be in an action of partition, and in no event could he secure the legal title under the sale at the execution. The remarks of the court as to the clause against alienation were, therefore, dicta. Author's Conclusion as to Origin of Spendthrift Trusts in Pennsylvania 294. The conclusion, therefore, is that the doctrine of spendthrift trusts in Pennsylvania originated in the ill-considered dictum of Smith, J., in Fisher v. Taylor," and was adopted by the judges in a number of subsequent cases, where also, the remarks were unnecessary to the decision of the case, and that subsequently, when a case arose presenting the point for decision, the Supreme Court seemed to feel itself bound by these dicta, and the doctrine was thus introduced into the law of Pennsylvania. Such dicta, perhaps, were to be expected in perfectly clear that the creditors of the trustee, on his own individual indebtedness, could not, in any event, take in execution the assets of the trust estate. Where, however, the debt was contracted for the purposes of the trust, the result would be different, as where the debts were contracted in carrying on the business. Stevenson v. Matthews, 9 Pa. 316 (1848), s. c. 6 Pa. 496 (1847). No case has been found where there was a clause against involuntary aliena- 1 For a discussion of the part which the notion as to the operation of the statute of uses entertained by the Supreme Court played in the development of this doctrine, see §131, ante. a state where the development of equitable doctrines was so long in a backward condition. It was many years before the Supreme Court reached a definite and clear notion of the nature of a trust and the principles pertaining thereto. The judges at the time the early cases were decided felt that the trustee's title could not be taken away by the cestui que trust's creditors. But they did not know exactly how to justify the result, which they could have easily done had the distinction between law and equity been made clear to their minds. 2 For an excellent statement of the probable cause of the spread of the doctrine of spendthrift trusts, see Gray, Restraints on Alien., 2 ed. (1895), preface. Summary of the Pennsylvania cases and statement of the law as to validity of prohibition of voluntary alienation... ..... §319 Trusts for support and maintenance.. $320 Forfeiture for Voluntary Alienation of an Equitable Life Estate 311. A clause of forfeiture for the voluntary alienation of a legal life estate, is valid. There is no reason for any distinction in the case of an equitable life estate. No Pennsylvania case on the point has been found, and the clause is probably valid when attached to a gift of an equitable life estate. Preliminary Discussion of Prohibition of Voluntary Alienation of an Equitable Life Estate 312. A prohibition of the voluntary alienation of a legal life estate is void at common law, and is probably void in Pennsylvania. Equity should follow the law, and the clause 1 See §225, ante. 3 See $228, ante. 2 See $226, ante. be of like invalidity in the case of an equitable life estate, unless there is some reason to the contrary. There are several cases of importance in this connection, and it may be observed, before proceeding to discuss them, that as a power to will is not an incident of a life estate, a restraint on testamentary power attached to an equitable life estate is a superfluity." Shankland's Appeal 5 313. In Shankland's Appeal the property was devised in trust to pay the income for life, without being subject to debts or liabilities. The cestui que trust undertook to sell his life estate, and it was held on a bill in equity for specific performance that he did not have a good title. The language of the court seems to indicate that the real ground of the decision was that the parties intended that the legal title was to be transferred. The form of the contract as given in the report leaves the matter in some doubt, and unless the case can be thus explained, it is difficult to sustain the decision as there was no prohibition of voluntary alienation. Rife v. Geyer 314. In Rife v. Geyer the testator devised one-eighth part of his estate in trust, "to let and demise the real estate * and recover and receive the rents and income thereof, and pay over the same when received into the hands of S. or such other person or persons as he may authorize, * * or at his option to permit and suffer him, the said S., to let, demise, occupy and enjoy and receive and take the income thereof, during all the term of his natural life, for his own separate use, and so the same shall not be in the power, or liable to the debts, control or engagements of the said S." And from and immediately after the decease of Stephen, then to hold the estate in trust for the heirs and legal representatives of Stephen. Partition was made under the will of the decedent, and a certain piece of real estate was allotted to the trustee under the trust for Stephen. The trustee then conveyed the premises to the son in fee. The son then conveyed 'See Levy's Est., 153 Pa. 174 (1893). 5 47 Pa. 113 (1864). See language of Read, J., at p. 114; see Gray, Restraints on Alien., 2 ed. (1895), §229, for observations on this case. 7 59 Pa. 393 (1868). |