Where a debtor had, under his father's will, an equitable estate for life in certain real property, with power to dispose of the remainder in fee by will, the remainder, in default of such disposition, to be conveyed by the trustee to the debtor's heirs at law; Held, That the debtor's interest passed to his assignee in insolvency, under the form of conveyance prescribed by the statute for insolvents, notwithstanding a clause in the will against anticipation and alienation of the rents and profits during the debtor's life; there being no limitation over of the estate, in the event of alienation, or seizure of it for his debts. The words "all my estate both real and personal not exempt from attachment by law," prescribed by the insolvent law as descriptive of what shall pass by the insolvent's deed to his assignee, except from the deed, only such property, as is expressly exempted from attachment by the statute relating to that subject.
AMES, C.J.
The demurrer to this bill is attempted to be supported, substantially, upon two grounds: First, that Hezekiah Sabin, Jr., had not such an equitable interest, under his father's will, in the trust property in question, that he could aliene the same to the plaintiff in trust for his creditors; and, second, that in legal intendment he did not, by the assignment executed by him under the poor debtor's act, aliene the same to the plaintiff, upon such trust.
The nature of the debtor's interest in the trust property, under his father's will, was an equitable estate for life, with a power of disposing of the remainder in fee by will; in default of such disposition, such remainder to be conveyed to his heirs at law; there being also a clause in the will against anticipation and alienation of the rents and profits during the debtor's life. It is quite clear, that it was the intention of the testator to make an alimentary provision for his son during life, which should give him all the advantages of an estate in fee, without the legal incidents of such an estate, — alienability, unless by will, and subjectiveness to the payment of the son's debts. Such restraints, however, are so opposed to the nature of property, — and, so far as subjectiveness to debts is concerned, to the honest policy of the law, — as to be totally void, unless, indeed, which is not the case here, in the event of its being attempted to be aliened, or seized for debts, it is given over by the testator to some one else. This has been the settled doctrine of a court of chancery, at least since Brandon v. Robinson, 18 Ves. 429; and in application to such a case as this, is so honest and just, that we would not change it if we could. Certainly, no man should have an estate to live on, but not an estate to pay his debts with. Certainly, property available for the purposes of pleasure or profit, should be also amenable to the demands of justice.
The other ground of demurrer taken, is equally without support. The difference between the prescribed terms of the assignment of an insolvent and a poor debtor, remarked upon by the counsel for the respondent, is verbal merely: the words "all my estate, both real and personal, not exempt from attachment by law," prescribed for the latter as descriptive of the subject of conveyance, being quite ample enough to include every equitable as well as legal interest in the real or personal property of the assigning debtor. The property excepted from the assignment by the words "exempt from attachment," is clearly that expressly exempted from attachment by our statute relating to that subject. It can hardly be supposed that the general assembly intended that a man should be admitted to the poor debtor's oath, whilst rolling in the wealth of a trust estate, applicable by law to the payments of his debts.
It has been suggested, that if the points taken on demurrer be decided against the respondents, they will decline to answer over, and will submit to the decree asked; and we are requested, under such circumstances, by the respondent, Bradford, to allow him his costs and necessary expenses of defence out of the trust fund. As this is the first time that this question has come before the court, and the trustee has taken the speediest mode of bringing the question of his duty, under the circumstances, to a decision, we think it but reasonable, that submitting now to the decree asked by the plaintiff, he should be made whole out of the trust fund for his costs, and for necessary expenses in endeavoring to keep it applied according to the will of his testator.
Demurrer overruled.