The land, as has been seen, was conveyed to Kennedy (plaintiff and respondent) in trust for the maintenance of the settler and his infant daughter during their natural lives, with remainder over to their legal representatives, the deed of trust granting an absolute and irrevocable power of sale. This operated a conveyance of the fee, and left nothing in the grantor. (Estate of Delaney , 49 Cal. 76-84; Bryan v. Knickerbocker, 1 Barb. Ch. 409; Vaux v. Parke, 7 Watts & S. 19; McIlvaine v. Smith , 42 Mo. 45.)
These cases are conclusive to the point that only those equitable estates can be reached on execution over which the cestui que trust has control, and the whole beneficial interest in which is vested in him.
As matter of law, independently of statute, it is held by the Supreme Court of the United States in the late case of Nichols v. Eaton, 1 Otto, 716, that it is competent for a settlement to be made which shall put even the income of the trust beyond the " each of creditors, thus profoundly modifying some of the English cases. (See, also, 1 Wall. Jr. 107, and opinion of Binney in note at foot of page 119. See, also, sec. 859 Civil Code.)
OPINION By the Court:
It is provided by sec. 688 Code Civil Procedure, that " all goods, chattels, moneys, and other property, both real and personal, or any interest therein, of the judgment debtor, not exempt by law, * * * are liable to execution." The deed of trust vested or left an interest in the property in question in Thomas O. Larkin, and such interest is, under the Code, subject to sale under execution.
Order reversed.