The opinion of the Court was delivered by
Mr. Justice Pope.
An action to settle the estate of S. W. Kennedy, deceased, was pending between the plaintiffs and defendants (who are the respondents here), when there arose the necessity of making the defendants, appellants, parties in order to test the right of the estate of S. W. Kennedy to hold, as a part of said estate, certain rent liens, which had been assigned by James A. Howe and the defendant, Eoline Howe, to the said S. W. Kennedy, deceased, in her lifetime, to secure a debt to said S. W. Kennedy, owing by the said James A. Howe, for about $3,000. The rent [94] liens had been assigned by said S. W. Kennedy, in her lifetime, to the Bank of Florence, and the latter had collected on said rent liens the sum of $1,120.40, and were about to collect some $600 additional. The ground upon which the doubt to the right of S. W. Kennedy to claim the rent liens, assigned to her by the said James A. Howe and Eoline, his wife, arose from the peculiar provisions of the last will of Mrs. Malvina F. Howe, deceased. So, by an order of Court, said Eoline Howe and her two children, Ethel Howe and Malvina Howe, were made parties defendant, with leave to contest this claim of the estate of S. W. Kennedy, deceased, to such rent liens, by the addition of paragraphs 7 and 8 of the complaint, and the service of summons upon them. By their joint answer they alleged: “1st. That all the issues in the cause have been adjudicated except as to the matter contained in the paragraphs 7 and 8 of the complaint herein. 2d. The defendants admit the assignment of the rent leases as mentioned in paragraph 7 of the complaint, and the collection by the Bank of Florence of .the sum of $1,120.40, and that there is a further sum due thereon. 3d. Further answering, the defendants allege: that Malvina F. Howe departed this life on the day of and left a last will and testament, which has been duly probated; that the said will was drawn up by W. A. Brunson, who, at the time of the assignment of these leases, was president of the Bank of Florence, and was also witnessed by himself and S. W. Kennedy, the party to whom the leases were originally assigned, and who was named as one of the trustees or executors of the will of Malvina F. Howe. 4th. That by the will of the said Malvina F. Howe all of her property, real and personal, was devised in trust to James A. Howe and Eoline Howe, for the joint occupancy and use of themselves and their children, of whom the defendants, Ethel and Malvina, are the only surviving children. 5th. That by the terms of the will of Malvina F. Howe, it was provided that the lands devised should neither be rented nor mortgaged nor sold for the payment of any debts contracted by James A. Howe [95] or Foline H. Howe. 6th. That the leases assigned, as stated in paragraph 7 of the complaint, were of lands belonging to the trust estate, and for a debt, as claimed, of James A. and Eoline H. Howe, and that S. W. Kennedy and the Bank of Florence took the assignment with the full knowledge of the trust. 7th. * * * 8th. That the Bank of Florence had the use of and possession of the $1,120.40, to wit: from December 31,1893, $619; from December 31,1894, $238.40; and from December 31, 1895, $270, and should account for interest and profit on same. 9th. That neither the estate of S. W. Kennedy nor the creditors thereof have any claim on this fund. Then follows a consequent prayer for relief.
To this answer the plaintiffs replied as follows: 1. They admit the allegations contained in the first and second paragraphs of the said answer. 2. They deny the allegations set forth in the ninth paragraph of the answer. 3. They deny each and every other allegation in said answer contained except so much thereof as may be hereinafter admitted. 4. Further answering, the plaintiffs say: that Malvina F. Howe departed this life, as stated in said answer, leaving a last will and testament, which has been duly probated, and that the said will was drawn by W. A. Brunson, who at the time of the assignment of the leases in question was president of the defendant, the Bank of Florence, and that the said W. A. Brunson and S. W. Kennedy, who assigned the said leases to the said bank, and to whom they had been assigned by James A. and Foline Howe, were witnesses to the said will, and that the said S. W. Kennedy was named in the said will as an executor thereof, but never qualified as such. That the said Malvina F. Howe, with the exception of a small legacy to W. R. Howe, bequeathed and devised all her property, real and personal, to the plaintiff, James A. Howe, and to his wife, the defendant, Foline Howe, for and during the terms of their natural lives; that after the death of both, to their lawful children, absolutely. That the said will indicated and declared that the purposes of said bequest and devise were for the benefit of the said James A. and [96] Eoline Howe and their children. That in the third clause of said will, after the said bequest and devise, there occurs the following proviso: “Provided, further, that the said estate so bequeathed and devised in said paragraphs, shall neither be rented, mortgaged or sold for the payment of any debts that the said James A. or the said Eoline may contract. And that it is my wish that the lands now rented out by me shall continue to be rented, if practicable, during the continuance of the said life estates of the said James A. and Eoline, for the benefit of themselves and their children.” That the leases in question were assigned by the said James A. and Eoline Howe to the said S. W. Kennedy, and by her assigned to the Bank of Florence, to secure the payment of debts contracted by the said James A. Howe, or by him and his said wife, Eoline, for the use and benefit of themselves and children. That upon the question being made as to the rightfuluess of the application of such monies as had been collected upon said leases to the claim of the Bank of Florence, upon recommendation of the referee in this case, it was ordered by the Court that the said monies be deposited with the clerk of this court, to abide the result of the decision of said question. And the said order provided that the said bank should have due protection in regard to the credit so withdrawn from the said claim. 5. Further replying, plaintiffs say: that the debts of the said testatrix now outstanding against the estate were almost entirely contracted to aid the said James A. and Eoline Howe in the support and maintenance of themselves and their children, and that it would be highly unjust to require her estate to pay the same, and at the same time to return to the said James A. and Eoline and their children the small amount so, far contributed by the said James A. apd Eoline for the protection and repayment of the said testatrix (meaning S. W. Kennedy). 6. Further replying, plaintiffs say: that the defendants, children of the said James A. and Eoline, have no legal or equitable right in the said leases during the lifetime of their parents, and are not entitled to claim [97] under the will of the said Malvina F. Howe. The will of Mrs. Malvina F. Howe was in these words: * * * “II. I give and bequeath all my personal estate, chattels, and effects, of whatsoever kind, which shall be at my death in and about my dwelling house and premises, or that may otherwise belong to me, to my beloved son, James Arnold Howe, and his wife, Eoline, for and' during the term of their natural lives, for the use and benefit of themselves and their children; and after the death of both, to the lawful children of the said James Arnold, absolutely. III. I give and devise the tract of land upon which I reside, consisting of 818 acres, known as the plantation of M. F. Howe, with all income and all improvements thereon, and also all other real property of which I may be seized and possessed at my death, to.my said son, James Arnold Howe, and his said wife, Eoline, for and during the term of their natural lives only, wdth remainder over after their deaths to the lawful children of the said James Arnold, in fee: provided, that should my son, James Arnold, predecease his wife, Eoline, it is my will that the estate given and devised to her in this paragraph and paragraph II. next above shall continue during her widowhood only; and should the said Eoline marry again, it is my will that the estate given and devised to her shall absolutely cease and determine, and that the same shall thereafter vest immediately and absolutely in the lawful children of the said James Arnold that may be living at his death, and their heirs: provided, further, that the said estate so bequeathed and devised in said paragraphs shall neither be rented, mortgaged or sold for the payment of any debts that the said James Arnold or the said Eoline may contract; and it is my wish that the lands now rented out by me shall continue to be rented, if practicable, during the continuance of the said life estates of the said James and Eoline, for the benefit of themselves and children; and that all the personal property that during the continuance of said life estates may perish, decay, and wear awajq or die, shall be, from time to time, replaced out [98] of the income of said rents. IV. I desire that my beloved son, William K. Howe, shall receive annually the sum of $25 out of the rents provided for in paragraph above until he shall receive the full sum of $100, the same to be paid by my executors. V. All the rest and residue of my estate, real, personal, and mixed, of which I shall be seized or possessed, or to which I shall be entitled at the time of my death, I give, bequeath, and devise to my beloved son, James Arnold, for and during the term of his natural life only, for the use and benefit and behoof of himself and his lawful children; and after his death, to his lawful children absolutely, subject to all conditions and limitations prescribed in paragraphs II. and III. above. VI. I here repeat, that it is my solemn desire that the dwelling house and tract of land herein given and devised shall be used as a home for my said son, James Arnold, and his wife and children, so long as he may live, according to all the conditions and limitations above prescribed; and that under no circumstances and on no account shall the above mentioned house, with lands attached and furniture and effects therein, be sold or mortgaged for any debts that my said son, James Arnold Howe, or his said wife, may ever contract.” VII. Appoints executors, who are Smilie A. Gregg, James Arnold Howe, and Sarah W. Kennedy, or the survivors of them. These questions came on to be heard by his Honor, Judge Benet, at the September, 1896, term of the Court at Florence, on the pleadings and the following agreed statement of facts: “I. That Ethel and Malvina Howe are the only surviving children of James A. and Eoline Howe, and are now living, and have always lived, with their parents. II. That paragraph 3 of the answer is true. III. That James A. Howe has been engaged in farming, in running a cotton gin and mill on his place, and in merchandising. IV. That the leases assigned, as stated in paragraph 7 of the complaint, were lands devised under the will of Mrs. M. F. Howe; were so assigned to secure a debt of the said James A. Howe, ■ amounting to $3,000 — less $396, which is dis[99] puted — and that S. W. Kennedy and the Bank of Florence took the assignment with notice of the will. V. That paragraph 8 of the answer is true, so far as regards the use and possession of the land fund therein stated, up to the' date of the report of the referee; since that time, said fund has been constructively in the hands of the clerk of this court, though actually in the bank. VI. That $155.05 is the interest on $1,127.40 for the time stated in paragraph 8 of answer. VII. That there were other lands of said estate rented out, which were not' assigned to Miss S. W. Kennedy or the Bank of Florence. VIII. That Mrs. Eoline H. Howe joined in the assignment of the rent leases mentioned in paragraph 7 of the complaint.”
By the carefully prepared decree of Judge Benet, he held that the assigned leases were legal and valid in the hands of S. W. Kennedy, as well as in the hands of the Bank of Florence as her assignee, and, as a consequence, that the defendants, Eoline Howe and Ethel and Malvina Howe, were not entitled to the relief prayqd for. Let the decree be reported. From this decree the defendants just named have appealed on the following grounds: “(1) That his Honor erred in holding that the will of Mrs. Malvina F. Howe created only a life estate for James and Eoline Howe. He should have held that it created a trust estate for the benefit of James A. and Eoline Howe and their children, the defendants, Ethel and Malvina Howe, during the life of the parents, and at their death, or remarriage of the mother, an estate in fee to the children. (2) His Honor erred in holding that the assignment of the rent leases was valid. He should have held that under the terms of the will of Mrs. Malvina F. Howe a trust was created, and under that trust the rents were reserved for the benefit of all the cestuis que trustents, and especially that same should be applied to the restoration of such property as should wear out, decay or die, and in no event could be used for the payment of the debts of James A. and Eoline Howe. (8) That his Honor erred in holding that the admitted fact that Sarah W. Ken[100] nedy and the Bank of Florence had notice of the terms of the will of Mrs. Malvina F. Howe, at the time of the assignment of the rent leases, could not affect the result. He should have held that such knowledge fixed upon the Bank of Florence liability for all the funds collected under the assigned leases, with interest or profit. (4) His Honor erred in holding that the infant defendants had no interest in this contest, and were not necessary parties. He should have held that by the terms of the will of Mrs. Malvina F. Howe, they were entitled to the use aiid benefit with their parents of all the property, real and personal, during the lifetime of their parents, and especially were they entitled with their parents to a home on the lands during the lifetime of the parents, and at their deaths to the fee, and were necessary and proper parties to this action. (5) His Honor erred in directing plaintiffs’ attorneys to prepare an order for the disposition of the leases and the distribution of the funds in accordance with the views expressed in his decree. He should have directed the custodian of the fund to turn the same with the leases to the executors of the will of Mrs. Malvina F. Howe for the use and benefit of the defendants. (6) His Honor erred in holding that the life estate was enjoyable in severalty, and having failed to notice the point made by the defendants, that even if this were only a life estate, that it is joint, and the interest of each unascertainable and not severable, and as the wife signed merely as the indorser or surety for her husband, her act was beyond her contractual power and voidj and the assignment by the husband alone was invalid. This Court is asked to entertain and consider the same.”
[101] 1 [104]*1042 [100] It is evident that if James A. Howe and Foline Howe, his wife, took life estates in the lands devised by the will of Mrs. Malvina F. Howe, and there were no trusts created under said will attaching their children, Ethel and Malvina Howe, to said life estate, it was not error in the Circuit Judge to hold, as he is complained of holding under these grounds of appeal. So that the primary question [101] here is to determine what kind of an estate did James A. Howe and his wife, Eoline, take under this will? The Circuit judge held, first, that they took life estates pure and simple, under his construction of the terms of the will; second, that if the testatrix intended by the terms employed in her will to prevent such life estates from liability to creditors, that such intention could not be effectuated. He refers, with great confidence, to the discussion of this subject by Chancellor Dargan, in the case of Heath v. Bishop, 4 Rich Eq., 46, where the doctrine is affirmed that when a life estate is created under a deed or will, it is not in the power of the grantor or devisor to so hedge about such life estate with provisions, conditions or limitations that it will not be reached by creditors, unless there is a forfeiture of said life estate in the event of an attempt by creditors to subject it to their demands in law or in equity, in the event of insolvency or bankruptcy. Chancellor Dargan reviews the authorities, both English and American, in support of this proposition, citing Brandon v. Robinson, 18 Vesey, 429; Piercy v. Robert, 1 Myl. & K., 4; Grayes v. Dolphin, 1 Simmons, 66; Greene v. Spicer, 1 Russ. & M., 395; Hallett v. Thompson, 5 Paige, 583. It will, therefore, be necessary for me to construe the will in question, to determine whether, by its terms, a life estate pure and simple was intended by the testatrix to her son, James A., and Eoline, his wife, or whether the life estate was so created, with a trust for their children and themselves on the real and personal property? The will was prepared by a lawyer, and the testatrix declared that she intended her bequests and devises in favor of the said James A. and Eoline, his wife, to go to them as life tenants. This expression, “life tenants,” is repeated again and again. But I apprehend that this is not the crucial test of the will, so far as the creation of these life estates is concerned. I apprehend that a trust may be attached to a life estate which would prevent creditors of the life tenant from interfering with such life estate. Was such trust estate created in this instance? The funda[102] mental idea of a life trust in property is that a legal estate to said property is invested in some person for the benefit of another. It has been always difficult for me to appreciate the view that a life estate may be vested in A, upon the trust that A shall have the benefit of such property. But cannot the legal estate to certain property be conveyed to A, with a trust that all the benefits which shall arise from said property shall accrue to and be enjoyed by A and certain other persons named during the lifetime of A? If such latter can be effectuated by a will, need there be some provision in the will creating such life estate and trust in the property conveyed for life other and beyond the insolvency or bankruptcy of the life tenant, who is also one of the cestuis que trustent in such property; such, for instance, as a specific piece of land on which the dwelling house is located, and in such dwelling house a home for certain persons, including the life tenant, is provided, which would effectually, in law or in equity, prevent a creditor of the life tenant from subjecting his share of said property to the payment of his debts? The language of Mrs. Malvina F. Howe’s will is very significant, for, in the second clause, where she bequeaths all her personal estate, chattels, and effects of whatsoever kind which shall be, at her death, in and about her dwelling house and premises, or that may otherwise belong to her, to her son James, and Eoline, his wife, for and during their natural lives, for the use and benefit of. themselves and their children. While in the third clause she devises the tract containing 818 acres, whereon was her family residence, with all the income and improvements thereon, and also all other real estate of which she might be seized at her death, to her son James, and Eoline, his wife, for and during the terms of their natural lives, with the proviso that her lands then rented out should continue to be rented during the said life estates,' for the benefit of themselves and children, and that all the personal property that, during the continuance of the life estates, which may perish, decay, wear away or die, shall ¿é, from time [103] to time, replaced out of the income of said rents. In the fifth clause the testatrix again devises to her son James all the rest and residue of her estate, for and during the term of his natural life only, for the use and benefit and behoof of himself and his lawful children, subject to all the conditions and limitations in paragraphs two and three of the will. Lastly, in the sixth clause, she repeats her desire that the dwelling house and tract of land devised in the third paragraph to her son James, and Eoline, his wife, for life, shall be used as a hoine for James, Eoline, and children, and that on no account shall the same be sold or mortgaged for any debts of James or Eoline. Is it not apparent from reading this language, that Mrs. Howe intended the title in the lands and personalty to be vested, for their lifetime, in James and Eoline, his wife, for the use, benefit, and' be-hoof of themselves and their children? I am not, therefore, prepared to go to the full length to which the Circuit Judge has gone; for while, as I shall presently show, I do not regard the position of the defendants touching these rent leases tenable, yet I am unwilling to assent to a construction of this will which may hereafter imperil the rights of these tender children. I think a fair construction of the will puts the title in the life tenants, imposed with a quasi trust for the children, for a home with their parents, and, also, a maintenance from the products of the same if cultivated, or from rents of the lands if they are leased to others. But I must agree with the Circuit Judge that the leases now before the Court (and this includes the $1,220.40 now in Court), should be applied to the debt of James to the estate of Miss Sarah W. Kennedy, for these reasons: First. There is nothing shown before this Court by which it is established that James and Eoline, his wife, do not use Mrs. Malvina F. Howe’s dwelling house and 818 acres of land attached, as a home for themselves and their children, nor that they fail to maintain the children. Second. When lands are conveyed to a life tenant, with the direction that the same is for the use of the life tenant, his wife and chil[104] dren, or that the same is for the benefit of the life tenant, his wife and children, or that the same is to furnish a home for himself, his wife and children, the life tenant takes the rents and profits, though the life tenant is a trustee as to the corpus, provided he furnishes the home, or maintenance, or whatever of that character the will may require. As is said in 'note 1 to page *66 of Hill on Trustees: “But in these cases, when the interest of legacies or rents, or the proceeds of shares, are to be applied by the parent to the support and maintenance of the children, though a trustee as to the corpus, the parent takes the interest, &c., subject to no account, provided he discharges the duty of maintaining and educating. Brown v. Paul, 1 Simons Ch. Reports (new series), 92; Hadow v. Hadow, 9 Simons Ch. Reports, 438.” I think,, also, the children of James and Eoliue were proper parties to these proceedings, as well as the wife of James A. Howe.
Both the life tenants having joined in the assignment, I see no reason, under the proofs, why her act should not stand. I think the decree ought to be affirmed, with the restrictions herein contained.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
Mr. Chief Justice McIver and Justices Gary and Jones concur in the result.