The tendency of present legislation is to soften and ameliorate, as far as practicable, the hardships and privations that follow in the wake of poverty and financial disaster. The courts of the country, in the same liberal spirit, have almost uniformly given full effect to such legislation. The practical results of this tendency, we think, upon the whole, have been beneficial, and we are not inclined to render a decision in this case which may be regarded as a retrograde movement. The creditors of the daughter have no ground to complain that they have been misled or wronged in consequence of the provision made for her by her father. It was his own bounty, and so far as they are concerned he had the right to dispose of it as he pleased. The property was not placed in her possession so that she might appear as owner when she was not, and thereby obtain credit. An examination of the public records would have shown that she had no power to sell or assign her equitable interest, that the extent of her right was to receive the net accumulation of the trust estate from the hands of the trustee, and that these accumulations did not become absolutely hers, so as to render them subject legal process for her debts, until actually paid to her.

The McLean Circuit Court, and the Appellate Court for the Third District, having reached a conclusion in accord with the views here presented, the judgment will be affirmed.

Judgment affirmed.1 :

Leggett V. Perkins

2 New York, 297. - 1849.

Ejectment. - Both parties claim title under the will of Gerardus Post, deceased. Defendant is lessee of the trustee appointed by the will. Plaintiff Susan Leggett is one of the beneficiaries under the trust in the will, but now claims that the trustee did not take the legal estate and that the trusts were void, and that she is entitled to the possession of the land. Judgment for defendant below. Plaintiff appeals.

Gardiner, J. - I think that the trustees took a fee in the premises in question by implication.

The devise to the daughters of the testator is not absolute, but (in the language of the will) "so that each may have and enjoy the income of an equal fifth thereof during their several natural lives." The testator then constitutes his executors trustees of their estate, authorizing them as such trustees "to take charge of, manage, and improve the same and to pay over to them, from time to time, the rents, interest and net income thereof." It is very obvious that a legal estate in the premises was necessary to enable the trustee to discharge these duties. Oates v. Cook, 3 Burr. R. 1684; Doe v. Woodhouse, 4 T. R. 89, 92; Fletcher on Trustees, 27; Greenleaf's Cruise, tit. 12, Trust, ch. 1, § 14, and note; Jickling's Analogy, p. 15, note. To put the matter beyond a doubt, the testator has provided that the net income should be paid to the daughters after marriage without the consent of their husbands, with like effect as if they were unmarried. If the husband took an estate by the curtesy, as he would if the fee vested in the daughter, he would be entitled, to the rents and profits, and the separate provision for the daughter would be wholly ineffectual. Greenleaf's Cruise, tit. 12, ch. 1, § 16; Doe v. Hoffman, 6 Adolph. & Ellis, 206; 2 Jarman on Wills, 202, 203, and cases cited. Again, if the trust to receive rents and profits and pay them over to the daughters is authorized by the third subdivision of the 55th section of the statute of "Uses and Trusts," the whole estate in law and equity, by the 60th section, vests in the trustees. I R. & S. 729, § 55, sub. 3, § 60..1 If not authorized, the trust is void, whatever may have been the intention of the testator. Id. 727, § I.

1 But one cannot make such a settlement in his own favor so as to be good against creditors. Ghormley v. Smith, 139 Pa. St. 584; Bank v. Windram, 133 Mass. 175. For further discussion of this subject, see Nichols v. Eaton, 91 U. S. 716. Besides the courts of the United States, the decisions in Pennsylvania, Massachusetts, Maine, Maryland, Mississippi. Vermont and Missouri are in accord with the principal case. See Gray's "Restraints on Alienation," § 178. The doctrine is supposed to have originated in Pennsylvania. See Gray, §§ 214-235h, 170-174. In several States there is a statutory system of "spendthrift trusts." These usually follow the system originated in New York by the revisers of 1830. N. Y. R. S., Part II.. ch. 1, Title II., Art. II , § 55, subd. 3, etc. Some New York cases construing these statutes follow here. See for the New York Statute in its present form, N. Y. R. P. L., §§ 76, 78, 80, 83, 85.

Whether such a trust is within the statute is therefore the great question in the cause. The decision of the chancellor in Gott v. Cook, affirmed the validity of a trust of this character. 7 Paige, 523. The decree in that case was pronounced after an elaborate argument, with all the light afforded by the opinion of Judge Savage, in Coster v. Lorillard, and of Judge Bronson in Hatwley v. James, and has never been reversed or shaken by any adjudication in this State, to my knowledge. As trusts are the peculiar subject of equitable cognizance, the principle thus established has become practically the law of the State. The same construction has been given to the statute by the Superior Court of the city of New York, by the Supreme Court, sitting in the Sixth district, by the same court in the First district in Mason v. Jones, the decision in the last case being affirmed in this court upon an equal division of the judges. Nor is this all. In Parke v. Parke, in the court for the correction of errors, the point was distinctly presented, and the validity of a trust of this description affirmed by their judgment. The question should be at rest upon authority. The conflicting opinions of eminent judges are evidence that it was originally a doubtful question; and no one is authorized to assume now that he is infallibly right, to whichever side of the controversy he may incline. I shall adhere to the decisions that have been made, because upon such a question the judgment of the court of last resort sustained as it is by the authority of every other adjudication made upon the same subject, is entitled to respect here. If, however, the question is deemed open, I shall follow those decisions because I think them right, and the exposition they have given to the statute the correct one.