The case was argued in November 1876, by J. W. Perry & L S. Tuckerman, for the defendants, and R. E. Harmon, (J. A. Gillis with him,) for the plaintiff; and additional briefs were submitted in February 1878, by Tuckerman, for the defendants, and by Gillis & Harmon, for the plaintiff.

GRAY, C. J. At law, any property, real or personal, that a man owns, may be alienated by him, or may, unless specially exempted by statute, be taken for the payment of his debts; and no form of grant or devise can enable the grantee or devisee to hold the estate without its being subject to alienation, attachment and execution. Co. Lit. 223 a. Blackstone Bank v. Davis, 21 Pick. 42.

From the time of Lord Eldon, the same rule has prevailed in the English Court of Chancery to the extent of holding that where the income of a trust estate is given to any person (other than a married woman) for life, the equitable estate for life is alienable by, and liable in equity to the debts of, the cestui que trust, and that this quality is so inseparable from the estate, that no provision, however express, which does not operate as a cesser or limitation of the estate itself, can protect it from his debts. Brandon v. Robinson, 18 Ves. 429; S. C. 1 Rose, 197. Rochford v. Hackman, 9 Hare, 475. 2 Spence Eq. Jur. 89, and cases cited.

The English doctrine has been approved in many decisions and dicta in this country. Tillinghast v. Bradford, 5 R. I. 205. Mebane v. Mebane, 4 Ired. Eq. 131. Heath v. Bishop, 4 Rich. Eq. 46. Smith v. Moore, 37 Ala. 327. McIlvaine v. Smith, 42 Misso. 45. Sanford v. Lackland, 2 Dillon, 6. Walworth, C., in Hallett v. Thompson, 5 Paige, 583, 585. Comstock, J., in Bramhall v. Ferris, 14 N. Y. 41, 44. Swayne, J., in Nichols v. Levy, 5 Wall. 433, 441.

On the other hand, it has been maintained by judges whose opinions are entitled to the highest respect, that the founder of a trust may secure the enjoyment of it to other persons, the ob jects of his bounty, by providing that it shall not be alienable by them or be subject to be taken by their creditors; and that his intentions in this regard, when clearly expressed by him, must be carried out by the court. Braman v. Stiles, 2 Pick. 460, 464. White v. White, 30 Vt. 338, 344. Arnwine v. Carroll 4 Halst. Ch. 620, 625. Holdship v. Patterson, 7 Watts, 547

Brown v. Williamson, 36 Penn. St. 338. Rife v. Geyer, 59 Penn. St. 393. Nichols v. Eaton, 91 U. S. 716, 727-729, and other cases there cited. Hyde v. Woods, 94 U. S. 523, 526.

Much of the argument in this case has been addressed to the question upon which the authorities are in conflict. But we are not required now to determine that question, because we find in this will no expression of intention that the trust estate shall not be alienated by the cestui que trust or not be liable to his debts.

The duties imposed on the trustee are to hold the estate in trust for the sole use and support of the husband of the testatrix, to sell or exchange the property and reinvest the proceeds with his consent, to obtain his written receipt or assent for every payment of money or exchange and sale and reinvestment of property, and to convey any part or all of the estate to such persons or associations and at such times as he may in writing designate and propose; and the trustee is empowered "to relieve himself from trouble and care" by appointing the husband his agent or attorney.

No other person is named in the will as cestui que trust, either during the life of the husband or after his death; no accumulation of income is provided for or contemplated; nor is any disposition made of the remainder after his death in case of his not exercising the power conferred upon him; and no restrictions whatever are imposed by the will, or committed to the discretion of the trustee, as to the amount of principal or income that the husband may receive, or the uses to which he may apply

them.

The whole effect of the will is to vest the legal title and a simple trust in the trustee, and the right to receive the whole income, as well as the absolute jus disponendi of the principal, in the cestui que trust. The husband therefore took an equitable

fee, which he might alienate, and which equity would apply to the payment of his debts. Lewin on Trusts, (3d ed.) 21, 585, 595. Barford v. Street, 16 Ves. 135. Moore v. Cleghorn, 10 Beav. 423, and 17 L. J. (N. S.) Ch. 400. Earl v. Grim, 1 Johns. Ch. 494. Palmer v. Stevens, 15 Gray, 343.

The decisions of this court, cited by the learned counsel for the defendants, are in no wise inconsistent with this conclusion.

In Perkins v. Hays, 3 Gray, 405, the question was whether the terms of the will by which the annuity was given allowed it to be alienated by anticipation. In Hall v. Williams, 120 Mass. 344, and in Russell v. Grinnell, 105 Mass. 425, the will manifested the intention of the testator that his trustees should have discretionary power either to apply or to withhold and accumulate the income. See also Chambers v. Smith, 3 App. Cas. 795. Demurrer overruled.

PHINEAS R. WESTON & another vs. NATHANIEL WESTON &

others.

Essex. January 19.- August 31, 1878.

A testator, by his will, after giving certain real estate to his widow in fee, with all his furniture, and a certain sum in trust for the support of a deceased son's wife and children, devised the residue of his estate in trust to support his widow out of the income during her life, to pay a certain annuity to his son and daughter "during the continuance of this trust," to add the surplus income to the residue, to permit his deceased son's widow to occupy a certain dwelling-house free of rent during her widowhood, and, "as soon as may be after the decease of my said wife, my said trustees or their successors shall convey, transfer or pay to my son and daughter, in equal shares, all the estate here given in trust, if they both survive my said wife, subject to the right of the widow of my said son, deceased, to occupy as aforesaid said tenement in my said house during her widowhood. In case either of them should die in the lifetime of my said wife, leaving no issue, the said estate given in trust shall be transferred or conveyed to the survivor, subject to the same right of my said son's widow." The son survived the widow, and the daughter, who was married after the death of the testator, died before her, leaving a son and a husband, who was appointed her administrator. Held, that the testator's son and daughter each took a vested equitable remainder in the residue, expectant on the termination of the widow's life estate, and liable to be divested only by the death of either of them in the widow's lifetime without leaving issue; that the son was entitled to one half of the residue, and the daughter's administrator to the other half; and that the daughter's annuity ceased with her death, her administrator being entitled to the proportional part thereof for the time between the last payment to her and her death.

BILL IN EQUITY by the trustees under the will of Nathaniel Weston, against Nathaniel Weston, a son of the testator, Charles T. Jenkins, the administrator of the testator's daughter, Lawrence W. Jenkins, the daughter's only child, and the children of Edward Weston, a deceased son of the testator, to obtain the

instructions of the court. Hearing on bill and answers, before Lord, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

J. A. Gillis & J. H. Fiske, for Nathaniel Weston.

S. Lincoln, Jr., for Charles T. Jenkins.

S. B. Ives, Jr., for Lawrence W. Jenkins.

J. B. F. Osgood, for the children of Edward Weston. SOULE, J. The testator, by his will, gave certain real estate to his widow in fee, with all his furniture. He then gave to trustees the sum of forty thousand dollars for the benefit of the children of his deceased son Edward. The residue of his estate he gave to trustees, on the trusts, first, to support his widow out of the income during her life; second, to pay an annuity of one thousand dollars to each of his surviving children, Nathaniel and Lucy, "during the continuance of this trust;" third, to add any surplus income to the "residue;" fourth, to permit the widow of his son Edward to occupy a certain dwelling-house free of rent during her widowhood; and fifth, as follows: "As soon as may be after the decease of my said wife, my said trustees or their successors shall convey, transfer or pay to my son and daughter, in equal shares, all the estate here given in trust, if they both survive my said wife, subject to the right of the widow of my said son, deceased, to occupy as aforesaid said tenement in my said house during her widowhood. In case either of them should die in the lifetime of my said wife, leaving no issue, the said estate given in trust shall be transferred or conveyed to the survivor, subject to the same right of my said son's widow." The testator died on November 6, 1868. His widow died on April 25, 1877. His son Nathaniel is living. daughter Lucy, who was married after her father's death, died on March 22, 1874, her husband, Charles T. Jenkins, and her son, Lawrence W. Jenkins, surviving her. They are still living, and Charles T. has been appointed administrator of her estate. The trustees under the will ask the instructions of this court as to the construction of the clause of the will, above quoted; and as to the question whether the annuity to Lucy terminated with her life, or was payable after her death to her son or administrator

His

As to the last named question, it is clear that the annuity ter. minated with the life of Lucy. The clause creating it, being without words of inheritance or succession, must be construed as giving an annuity during the life of the widow of the testator, that being the term of the trust, if Lucy should live so long, and if she should not, for her own life only. But the annuity is within the provisions of the Gen. Sts. c. 97, § 24, and the administrator of Lucy's estate is entitled to a proportional part for the time between the last payment to her and the date of her death. Bates v. Barry, ante, 83.

The other question is of much greater importance. It is contended by the children of Edward Weston that the whole residue should be distributed as intestate estate; by Nathaniel, that one half of said residue is his, and that the other half should be distributed as intestate estate; by Lawrence W. Jenkins, that he is entitled to one half the residue, as a remainder by implication; and by Charles T. Jenkins, that he is entitled, as administrator of the estate of Lucy, his wife, to the half of the residue which she would have taken if she had survived her mother, the widow of the testator.

The intention of the testator is to determine the construction of the clause under consideration, and is to be ascertained from the will as a whole. And it is evident from the whole instrument that, after setting apart the sum of forty thousand dollars for the children of his son Edward, providing for Edward's widow and for his own wife, the testator had in mind as beneficiaries, in disposing of the residue of his estate, only his son Nathaniel and his daughter Lucy. It is presumed, also, that he did not intend to leave any part of his estate intestate. It was argued that the language employed, requiring the trustees to convey to the son and daughter in equal shares if they should both survive the testator's wife, gave to them a contingent estate only, which failed to vest by reason of the death of Lucy during the life of the testator's wife, and that the gift of the whole res idue to the survivor, if either died during the lifetime of the tes tator's wife, leaving no issue, failed to vest, because Lucy left Issue, and the contingency contemplated did not occur. This is a forced and unnatural construction. The two parts of the provision disposing of the residue are not to be regarded as separate