By the Court.
Benning, J.
delivering the opinion.
' [1.] The Court below decided that “ the proceeds” of the trust property were not subject to the payment of William -A. Tennille’s debts. Was that decision right? This is the question.
Whether the decision was right or not, depends upon what was the extent of William A. Tennille’s interest in the trust property. If his interest in that property was no greater than that of tenant, at the will of his wife, in the “ annual increase and profits” of the property, the decision was right. It was also right even if his interest in the property was as -great as that of absolute owner of the “ annual increase and ■profits” of the property, provided the expression, “ annual increase and profits,” as used in the deed, means net annual increase and profits.
The interest of a tenant at will, -is not assignable. And what is not assignable, cannot be leviable. If, then, Tenmille’s interest was only that of tenant at will, in the “ animal /increase and profits” of the property, it was not such as was ^subject to be seized and sold under a fi.fa. against him.
Was Tennille, then, but a tenant at’will in the annua i increase and profits ? It is extremely doubtful whether ho was ■anything more. The interest which he had was such, -hat Mrs. Tennille could, at pleasure, defeat it in at least. two ways.
His interest, whatever it was, he derived from the fi w[116]*116ing clause in the deed : “ and for the use and benefit of the said Lucinda M. Fort, subject, nevertheless, to the exclusive management and control of the said William A. Tennille and the said Lucinda M. Fort, the said William not to be accountable, either in Law or Equity, for the annual increase or profits arising from said estate, or for interest upon any moneys which may come to his hands in the collection of debts due or to become due to the said Lucinda M. Fort, or which may hereafter be placed in his hands by the said Lucinda M. Fort, but only for the principal of said sum or sums.”
Now, if Mrs. Tennille had sold the whole of the trust property on a long credit, and had taken, in payment, a note or bond bearing interest, payable.annually, and, failing or refusing to “ place” such note or bond in the hands of William A. Tennille for collection, had, herself, kept it and collected the annual interest — instalments due on it, what estate would Tennille have had left in the trust property ? None.
But she has the power, on such terms, to sell the property ; for the deed contains this covenant, on the part of William A. Tennille : “ And the said William A. Tennille further covenants and agrees that, notwithstanding the said marriage, the said Lucinda M. Fort shall retain and exercise the right to •sell and dispose of any portion of her estate, either real or personal, as to her shall seem meet and proper, and to invest the proceeds of the same into other property, for the uses and 'trusts herein specified, and to dispose of the proceeds of such sale as to her shall seem best for her interest and happiness.” Now here is a covenant by Wm. A. Tennille, that Lucinda M. Fort shall have, first, a general power of sale and disposal ; secondly, a power to invest the proceeds of any sale, if any is made, in other property on the same trusts ; thirdly, a general power to dispose of the proceeds of any sale, in any way that to .her may seem best for her interest and happiness. And can it be doubted that she did not, by virtue of the first of these three powers, or by virtue of the last; or, at least, by virtue of the first and last taken together, retain [117]*117the right to make such a sale as that which I have supposed her to have made ? Hardly, I think. The last of the three 'powers is certainly an independent power — complete in itself.
Such a sale as that which I have supposed made, would be one way of defeating the interest ofA. Tennille in the property.
But even if Lucinda M. Fort has not the power to make such a sale, viz : a sale on a long credit, with the interest on the purchase money, payable annually, but has only the .power to sell for cash, and on the condition immediately to xevest the proceeds of a sale in • other property of some sort, yet, under the last of these three powers, or of these two, if we choose to count the first and second as parts of a single power, she certainly can defeat all of Wm. A. Tennille’s interest, whatever that may be; for under this power she is authorized to dispose of the proceeds of a sale of the trust property, in any way that, to her, may seem best for Eer interest and happiness; that is, just as she may please.
She may, therefore, dispose of such proceeds by investing them in property yielding no income — no “ annual increase ✓of profits” — as wild lands or vacant town lots, or stocks yielding no dividends, or a charity. Any of these operations she may repeat again and again. She may bestow such increase or profits as a gift on a friend or relative. But if she should dispose of such proceeds in any of these modes, all interest of Wm: A. Tennille, under the trust deed, would be defeated, for his interest is confined by that deed to the annual increase or profits arising from the trust property.
This, then, is another way by which Lucinda M. Fort may, as long as she lives, defeat all interest of Wm. A. Tennille in the trust property. And the deed contains a stipulation that she may dispose of the property, by will, as she pleases. By this she may defeat his interest for all time, after her death.
Is the interest or estate of one person, which is thus dependent upon the pleasure of another person, at all greater than an estate at will ? I think it exceedingly doubtful. [118]*118This, however, is the extent of the interest of Wm. A. Tenmille, under the deed.
■ But let it be granted that this interest is more than an estate at will — that it is an absolute interest — an absolute interest in “the annual increase or profits;” let it be granted that the deed gives absolutely to Wm. A. Tennille “ the annual increase or profits” of the trust property; then the question is, what the deed means by this expression: Does it mean the gross annual increase or profits, or the net ?
The case was that of a levy on gross proceeds; for it consisted of a levy on the corn crop and the cotton crop of a ¡particular year, and that a levy made on the first day of No■vember. And it is presumed that a crop cannot be all net •profits. It is to bo presumed that expenses are incurred in •making a-crop ; and such expenses have to be deducted from the year’s gross profits, in order to bring to view the year’s net profits. And what these expenses will be in any year, cannot be ascertained until the end of the year, and frequently not until after the end of the year. A crop, then, 'is gross profits; it is not net profits.
Did the deed, then, mean to give to Wm. A. Tennille the whole gross annual increase or profits of the trust property ? To say that it did, is to say that the deed intended to defeat its own object. The object of the deed was, it is admitted on all hands, to keep to Lucinda M. Fort at least the whole capital — the whole corpus of the property.
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By the Court.
Benning, J.
delivering the opinion.
' [1.] The Court below decided that “ the proceeds” of the trust property were not subject to the payment of William -A. Tennille’s debts. Was that decision right? This is the question.
Whether the decision was right or not, depends upon what was the extent of William A. Tennille’s interest in the trust property. If his interest in that property was no greater than that of tenant, at the will of his wife, in the “ annual increase and profits” of the property, the decision was right. It was also right even if his interest in the property was as -great as that of absolute owner of the “ annual increase and ■profits” of the property, provided the expression, “ annual increase and profits,” as used in the deed, means net annual increase and profits.
The interest of a tenant at will, -is not assignable. And what is not assignable, cannot be leviable. If, then, Tenmille’s interest was only that of tenant at will, in the “ animal /increase and profits” of the property, it was not such as was ^subject to be seized and sold under a fi.fa. against him.
Was Tennille, then, but a tenant at’will in the annua i increase and profits ? It is extremely doubtful whether ho was ■anything more. The interest which he had was such, -hat Mrs. Tennille could, at pleasure, defeat it in at least. two ways.
His interest, whatever it was, he derived from the fi w[116]*116ing clause in the deed : “ and for the use and benefit of the said Lucinda M. Fort, subject, nevertheless, to the exclusive management and control of the said William A. Tennille and the said Lucinda M. Fort, the said William not to be accountable, either in Law or Equity, for the annual increase or profits arising from said estate, or for interest upon any moneys which may come to his hands in the collection of debts due or to become due to the said Lucinda M. Fort, or which may hereafter be placed in his hands by the said Lucinda M. Fort, but only for the principal of said sum or sums.”
Now, if Mrs. Tennille had sold the whole of the trust property on a long credit, and had taken, in payment, a note or bond bearing interest, payable.annually, and, failing or refusing to “ place” such note or bond in the hands of William A. Tennille for collection, had, herself, kept it and collected the annual interest — instalments due on it, what estate would Tennille have had left in the trust property ? None.
But she has the power, on such terms, to sell the property ; for the deed contains this covenant, on the part of William A. Tennille : “ And the said William A. Tennille further covenants and agrees that, notwithstanding the said marriage, the said Lucinda M. Fort shall retain and exercise the right to •sell and dispose of any portion of her estate, either real or personal, as to her shall seem meet and proper, and to invest the proceeds of the same into other property, for the uses and 'trusts herein specified, and to dispose of the proceeds of such sale as to her shall seem best for her interest and happiness.” Now here is a covenant by Wm. A. Tennille, that Lucinda M. Fort shall have, first, a general power of sale and disposal ; secondly, a power to invest the proceeds of any sale, if any is made, in other property on the same trusts ; thirdly, a general power to dispose of the proceeds of any sale, in any way that to .her may seem best for her interest and happiness. And can it be doubted that she did not, by virtue of the first of these three powers, or by virtue of the last; or, at least, by virtue of the first and last taken together, retain [117]*117the right to make such a sale as that which I have supposed her to have made ? Hardly, I think. The last of the three 'powers is certainly an independent power — complete in itself.
Such a sale as that which I have supposed made, would be one way of defeating the interest ofA. Tennille in the property.
But even if Lucinda M. Fort has not the power to make such a sale, viz : a sale on a long credit, with the interest on the purchase money, payable annually, but has only the .power to sell for cash, and on the condition immediately to xevest the proceeds of a sale in • other property of some sort, yet, under the last of these three powers, or of these two, if we choose to count the first and second as parts of a single power, she certainly can defeat all of Wm. A. Tennille’s interest, whatever that may be; for under this power she is authorized to dispose of the proceeds of a sale of the trust property, in any way that, to her, may seem best for Eer interest and happiness; that is, just as she may please.
She may, therefore, dispose of such proceeds by investing them in property yielding no income — no “ annual increase ✓of profits” — as wild lands or vacant town lots, or stocks yielding no dividends, or a charity. Any of these operations she may repeat again and again. She may bestow such increase or profits as a gift on a friend or relative. But if she should dispose of such proceeds in any of these modes, all interest of Wm: A. Tennille, under the trust deed, would be defeated, for his interest is confined by that deed to the annual increase or profits arising from the trust property.
This, then, is another way by which Lucinda M. Fort may, as long as she lives, defeat all interest of Wm. A. Tennille in the trust property. And the deed contains a stipulation that she may dispose of the property, by will, as she pleases. By this she may defeat his interest for all time, after her death.
Is the interest or estate of one person, which is thus dependent upon the pleasure of another person, at all greater than an estate at will ? I think it exceedingly doubtful. [118]*118This, however, is the extent of the interest of Wm. A. Tenmille, under the deed.
■ But let it be granted that this interest is more than an estate at will — that it is an absolute interest — an absolute interest in “the annual increase or profits;” let it be granted that the deed gives absolutely to Wm. A. Tennille “ the annual increase or profits” of the trust property; then the question is, what the deed means by this expression: Does it mean the gross annual increase or profits, or the net ?
The case was that of a levy on gross proceeds; for it consisted of a levy on the corn crop and the cotton crop of a ¡particular year, and that a levy made on the first day of No■vember. And it is presumed that a crop cannot be all net •profits. It is to bo presumed that expenses are incurred in •making a-crop ; and such expenses have to be deducted from the year’s gross profits, in order to bring to view the year’s net profits. And what these expenses will be in any year, cannot be ascertained until the end of the year, and frequently not until after the end of the year. A crop, then, 'is gross profits; it is not net profits.
Did the deed, then, mean to give to Wm. A. Tennille the whole gross annual increase or profits of the trust property ? To say that it did, is to say that the deed intended to defeat its own object. The object of the deed was, it is admitted on all hands, to keep to Lucinda M. Fort at least the whole capital — the whole corpus of the property. But if the gross 'annual profits of a plantation and slave's be constantly abstracted from the plantation and slaves; if the annual expenses of the plantation and slaves be constantly charged, not upon the annual profits, 'but upon the capital, the plantation and slaves must soon melt away from the owner and vanish from his sight.
Now, an instrument is not to be so interpreted as to make it defeat its own object; at least, it is not, if it will admit of 'an interpretation that will make'it accomplish its object. And such an interpretation, this deed will admit of. The ■expression, “the annual increase or profits,” may well mean [119]*119the net annual increase or profits. In strictness, nothing, perhaps, can be annual increase — can be annual profits of a plantation with slaves, except what remains of the year’s products after a deduction of the year’s expenses.
And what thus remains may be spent every year without impairing the capital.
To say, then, that the words aforesaid mean net annual increase or profits, is to say what is consistent with the words of the deed, and what will mate the deed accomplish that which is manifestly its great, if not its only object, the preservation, unimpaired, of the corpus of the trust property.
This, therefore, is what we ought to say that the words mean.
Now what was levied on, and what the Court decided to be not subject to levy, was part of a year’s gross increase of the trust property. It was the corn crop and the cotton crop as they stood on the first day of November.
These crops could not have been all net increase. They stood charged with the expenses incurred up to -the first of November, and with such as might be incurred afterwards,, during the remainder of the year, and perhaps longer. And. it was impossible to tell, at the time of the levy, what these-expenses might turn out to be.
The argument, then, stands thus: The year’s net increase of the trust property was all that was subject to be levied on.. What was levied on was the crop of cotton and corn as that, existed on the first of November. A crop is not a year’s net, increase of the capital and labor it takes to make the crop. Expenses have to be deducted. What these expenses for any year may be, cannot be known before the end of the year, nor then, if the year’s business is not then closed. Therefore, what was levied on was not net increase of the trust property; and the levy was made before the time had come when it could be known what the net increase would be, or whether there would bo any net increase.
Asid therefore, we say that what was levied on was not subject to levy. Such an interest as that of Tennille in the [120]*120property levied on was no more the subject of levy, than is; the interest of a distributee the subject of levy at a time when some debts against the estate are known to the administrator,, and when the period allowed to him for finding out what others may exist against it, has not expired.
It is our opinion, therefore, that the decision of the Court, below was right. '