The opinion of the Court was delivered by
Kennedy, J.
Originally, at common law, the feoffee to uses was the complete owner of the land, and his estate therein was subject to all the incidents to which real ownership was liable. Co. Lit. 271 b. note (1). His wife was entitled to dower in it. Bro. Feoff. Uses, pi. 10. It was subject to wardship, relief, &c. He had the power of selling it, and forfeited it for treason or felony. In short, he might have brought actions, and have exercised every kind of ownership over, or in respect of, it. Dyer 9; Jenk. Rep. 190. But after some time, notwithstanding the legal estate was vested in the feoffee to uses, equity stepped in to the relief of the cestui que use, and furnished a protection to the latter against the judgments, other encumbrances, and bankruptcy of the former. 2 P. Wms. 278; 1 Bro. Ch. Ca. 278; 2 P. Wms. 316; 3 Ibid. 187, note A.; also against the dower and free bench of his wife. Hinton v. Hinton, (2 Vez. 634, 638); Noel v. Jevon, (2 Freem. 43) ; Bevant v. Pope, (Ibid. 71); and against the tenancy by curtesy of the husband of a female trustee, Cashborn v. Inglish, (7 Vin. Abr. 157). At length, however, the Statute of Uses, 27 Hen. 8, c. 10, was passed, by which the possession was devested out of the persons seised to the use, and transferred to the cestuis que use; thus vesting the latter with the legal estate, and putting them in the place of the feoffees. Co. Lit. 271, note (1). Trusts, since the passage of this statute, are in most respects what uses were previously at the common law. Same note. But then it is not every use which may be created that the statute will operate [328] on, so as to transfer £he possession to the cestui que use. For example, if a devise be made to trustees, to receive the rents and profits thereof during the life of A, and that such rents and profits shall be applied for the subsistence and maintenance of the said A during his life, the use in such case is not executed in A by the statute, and cannot therefore unite with a subsequent legal limitation to the heirs of the body of A. Silvester v. Wilson, (2 Term Rep. 444). See also Symson v. Turner, (1 Eq. Ca. Abr. 383); 2 Bl. Comm. 336; Shapland v. Smith, (1 Bro. Ch. Ca. 75). The reason why the statute cannot operate in such case to execute the use, is very obvious, because it would be contrary to the intention of the testator as manifested by the terms of' the devise, that the cestui que use should become the legal owner of the estate, and as such take the possession of it under the statute; when it is manifest that the testator intended the devisee or trustee should take and retain the possession for the purpose of administering the trust, which cannot be well done without it.
As to the case before us, it is perfectly clear that the statute is in nowise applicable to it. First, because, there is no cestui que use in being as yet, to whom the possession of the estate devised can be transferred; and secondly, because, by the terms of the devise it is evident that the testator has reposed a personal confidence in his son Samuel, the trustee, by intrusting to him personally the entire management and accumulation of the estate according to his own discretion; thus rendering it utterly impracticable for any other than Samuel to administer and execute the trust agreeably to the will of the donor. But it does not follow, as seems to be suggested by one part of the argument of the counsel for the plaintiff in error, that because the Statute of Uses does not operate on the son, Samuel, therefore, must be regarded as the legal and absolute owner of the estate, both at law and in equity, and consequently that it is liable to be taken in execution and applied to the payment of his debts. For although the statute is inoperative, yet the use declared must be treated and dealt with as if the statute had never been passed. But before the enactment of it, equity, as has been already shown above, interposed to protect the rights of the cestui que use, and to preserve the estate for his benefit from the debts and encumbrances of the trustee, according to the design and intention of the donor or party creating the trust.
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The opinion of the Court was delivered by
Kennedy, J.
Originally, at common law, the feoffee to uses was the complete owner of the land, and his estate therein was subject to all the incidents to which real ownership was liable. Co. Lit. 271 b. note (1). His wife was entitled to dower in it. Bro. Feoff. Uses, pi. 10. It was subject to wardship, relief, &c. He had the power of selling it, and forfeited it for treason or felony. In short, he might have brought actions, and have exercised every kind of ownership over, or in respect of, it. Dyer 9; Jenk. Rep. 190. But after some time, notwithstanding the legal estate was vested in the feoffee to uses, equity stepped in to the relief of the cestui que use, and furnished a protection to the latter against the judgments, other encumbrances, and bankruptcy of the former. 2 P. Wms. 278; 1 Bro. Ch. Ca. 278; 2 P. Wms. 316; 3 Ibid. 187, note A.; also against the dower and free bench of his wife. Hinton v. Hinton, (2 Vez. 634, 638); Noel v. Jevon, (2 Freem. 43) ; Bevant v. Pope, (Ibid. 71); and against the tenancy by curtesy of the husband of a female trustee, Cashborn v. Inglish, (7 Vin. Abr. 157). At length, however, the Statute of Uses, 27 Hen. 8, c. 10, was passed, by which the possession was devested out of the persons seised to the use, and transferred to the cestuis que use; thus vesting the latter with the legal estate, and putting them in the place of the feoffees. Co. Lit. 271, note (1). Trusts, since the passage of this statute, are in most respects what uses were previously at the common law. Same note. But then it is not every use which may be created that the statute will operate [328] on, so as to transfer £he possession to the cestui que use. For example, if a devise be made to trustees, to receive the rents and profits thereof during the life of A, and that such rents and profits shall be applied for the subsistence and maintenance of the said A during his life, the use in such case is not executed in A by the statute, and cannot therefore unite with a subsequent legal limitation to the heirs of the body of A. Silvester v. Wilson, (2 Term Rep. 444). See also Symson v. Turner, (1 Eq. Ca. Abr. 383); 2 Bl. Comm. 336; Shapland v. Smith, (1 Bro. Ch. Ca. 75). The reason why the statute cannot operate in such case to execute the use, is very obvious, because it would be contrary to the intention of the testator as manifested by the terms of' the devise, that the cestui que use should become the legal owner of the estate, and as such take the possession of it under the statute; when it is manifest that the testator intended the devisee or trustee should take and retain the possession for the purpose of administering the trust, which cannot be well done without it.
As to the case before us, it is perfectly clear that the statute is in nowise applicable to it. First, because, there is no cestui que use in being as yet, to whom the possession of the estate devised can be transferred; and secondly, because, by the terms of the devise it is evident that the testator has reposed a personal confidence in his son Samuel, the trustee, by intrusting to him personally the entire management and accumulation of the estate according to his own discretion; thus rendering it utterly impracticable for any other than Samuel to administer and execute the trust agreeably to the will of the donor. But it does not follow, as seems to be suggested by one part of the argument of the counsel for the plaintiff in error, that because the Statute of Uses does not operate on the son, Samuel, therefore, must be regarded as the legal and absolute owner of the estate, both at law and in equity, and consequently that it is liable to be taken in execution and applied to the payment of his debts. For although the statute is inoperative, yet the use declared must be treated and dealt with as if the statute had never been passed. But before the enactment of it, equity, as has been already shown above, interposed to protect the rights of the cestui que use, and to preserve the estate for his benefit from the debts and encumbrances of the trustee, according to the design and intention of the donor or party creating the trust.
It is objected, however, that inasmuch as no cestuis que use are appointed by the will to receive the rents and profits of the estate, and it cannot be known during the life of Samuel who they are or may be, and Samuel is to have the use of the estate during that period for his support and maintenance, he must be considered as having a real interest therein, which is incompatible with a mere trusteeship, and such as can only belong to a real ownership, at least for life. It is certainly not necessary to the- creation of a [329] trust estate that a cestui que use in being should be named, nor is it requisite that the cestui que úse should be known as such before the death of the trustee for life. It is sufficient if the person designated as the cestui que use be in existence, and can be distinguished at the death of the trustee. It is also perfectly consistent with the idea of a trusteeship that the trustee should be compensated for his services rendered in the execution of the trust; and in all cases of voluntary trusts there can be no impropriety or illegality in leaving it to the party creating the trust to say what that compensation shall be, and to the person appointed trustee to determine whether he will accept and undertake the administration of the trust for the compensation offered. It may be a certain sum of money to be deducted annually, and taken by the trustee out of the profits or' trust estate; or it may be an uncertain sum, as in the present instance, whatever it may be, that shall be sufficient for his' support and maintenance, be it little or great. In the first case, it will scarcely be pretended that the trust estate could be taken in execution for the debts of the trustee. And if it be that it could not, it is equally clear that it could not in the second instance; for the principle of the compensation and its relation to the estate is precisely the same in the latter that it is in the former. And where the trustee is required to apply all his time and attention, as in the case under consideration, to the management and concerns of a valuable and complicated trust estate, an adequate support or maintenance of himself and family, if he should have any, would seem to be as small'a compensation as could well or ought to be offered and accepted. This is all that is given to Samuel, the trustee in this case, or that he has any right to claim; for by the terms of the will creating the trust, the whole of the rents, profits and proceeds of the trust estate, over and beyond what shall be requisite for his support, are to be disposed of by him in such way as he shall think most advisable, so that they shall accumulate, not for his benefit, but for the benefit of those who shall, upon his death, be entitled to receive and take the same according to the terms of the will. That an accumulation of the rents and proceeds of a trust estate may be directed by the party creating it for the benefit of those who may and shall come into being during the life of the trustee, or be in existence at the time of his death, cannot be questioned. This subject underwent great discussion, as also consideration, in the celebrated case of Thelluson v. Woodford, (4 Vez. 227), 2 New Reports 357, where it was determined that accumulation of the rents of an estate might be directed for so long a time as that during which the law allows a man to render the estate unalienable; which produced the passage of an Act of Parliament, 39 and 40 Geo. 4, c. 98, confining the power of accumulation to twenty-one years.
In such an extension of the accumulation, it must generally be, as it was actually in that case, that the accumulation was for the [330] use and benefit of those who were unborn at the time of the creation of the trust. But this formed no objection to it, as long as it did not interfere with the period allowed by law for rendering estates unalienable, which is one or more lives in being, and twenty-one years afterwards, and a few months, allowing for gestation. There is no established principle of either law or equity which gives the creditors of Samuel Given a right to apply the estate, which did belong to his father at the time of his death, to the payment of their claims, in direct opposition to the disposition which the father by his will made of it. Whoever has the right to give, has the right to dispose of the same as he pleases. Cujus est dare ejus est disponere, is the maxim which governs in such case.
Neither can it advance such claim on the part of Samuel’s creditors, that the trust estate may be greatly enhanced by his personal services, and that his services may be worth much more than his support or maintenance. A man, though indebted and wholly unable to pay anything, may dispose of his personal services at what price he pleases, and his creditors cannot object to his doing so. If he be content to give them for his mere support and maintenance, without more, he has unquestionably the right to do so; though I would say, if he has it in his power by means of his personal services, even when he is destitute of all other means, to support himself and at the same time to pay his creditors, he ought to do so. A proper sense of moral obligation requires it of him. But if he does not choose to do so, it cannot be tolerated for a moment that his creditors shall be permitted to seize upon whatever has been committed to his possession and care, to be managed expressly for the use and benefit of others, and not for himself. The observations of the Chief Justice in Holdship v. Patterson, (7 Watts 551), may be applied here with double force, where the relation of father and son exists between the benefactor and the beneficiary. He there says, “ a benefactor may certainly provide for a friend (and especially a child) without exposing his bounty to the debts or improvidence of the beneficiary. He has an individual right of property in the execution of the trust, and to deprive him of it would be a fraud on his generosity (parental duty). To appropriate a gift to a purpose or person not intended, would be an invasion of the donor’s private dominion.”
Judgment affirmed.