Freeman, J.,
delivered the opinion of the court.
This bill was filed by Turley, a judgment creditor of Massengill, with an execution returned nulla bona, seeking to subject in some form the property left by the father of said Massengill to his debt.
An answer, containing a demurrer, was filed by the respondents, and the case heard on the demurrer, which was overruled, and an appeal allowed by the chancellor, so that the case stands before us on the questions of law alone raised by the demurrer.
The questions to be decided depend on the will and codicil thereto of the father of respondent Mas-sengill, as set out in the bill of complainant, with other allegations, which we proceed to give.
By the will of the father, Robert Massengill, made in 1861, he devised and bequeathed his property by the 6th clause as follows: “ To my son, S. S. Mas-sengill, I give all the remainder of my estate, both real and personal, of every description whatever, charging him with the payment of all my just debts, and solemnly enjoining upon him to take care of and support his mother on the home farm, and to observe towards her in the future the same tenderness and affection which has so signally marked his conduct in the past. I also request of him that he will not sell the homestead of land or any part thereof, but that he will keep it as a home for himself and for those to come after him. I make no provision for my beloved wife, except that. she shall reside in the old family mansion with our son Sterling, feeling doubly [355]*355confident that his kindness and generosity will amply (supply) her wants.”
■In 1864, a codicil was added to this, as follows: “ Whereas, I, Robert Massengill, of the county of Grainger and State of Tennessee, have made my last will and testament in writing, bearing date 31st of December, 1861; now, therefore, I do by this my writing, which I hereby declare to be a codicil to my last will and testament and to be taken as part thereof, order and declare that my will is that all the property of every kind bequeathed to my son, S. S. Mas-sengill, in the 6th clause _ of the foregoing will, be vested in Dr. John W. Thornburg as trustee, for the use and benefit of my said son, and no part of the same is to be subject, to execution or other legal process for any debt or liability he may have contracted or may hereafter contract, nor is he to sell the same or any part thereof, but may use the rents and profits for his support and that of my wife, E. H. Massengill, but he shall have the right to dispose of the same by last will and testament; and lastly, it is my will and desire that this codicil be annexed to, and made a part of my last will and testament as aforesaid, to all intents and purposes.”
It is charged that Branner, a brother-in-law, assumes to be trustee as successor. to Thornburg — how appointed is not stated — and that he claims to control the property and repels all creditors, defying the officers of the law to levy on it for Massengilks debts. The mother is dead, so that the charge, whatever it may be, in her favor, is out of the way.
[356]*356It is charged, that under the will, the son received a large and valuable farm, on which he resides, in Grainger county, and that on this farm is situated one of the most valuable merchant mills in East Tennessee, from which a large income is annually derived, all of which defendant enjoys, and claims to hold free from liability to his creditors. The question is, whether this property is or can be made liable for his debts, or shall he enjoy all the fruits of ownership, and yet hold it free from the responsibilities attaching to ownership of property in general — liability to creditors for satisfaction of the debts of the owner?
If the gift had remained as in the original will, a direct gift of the entire estate to the son, with only the request that he should not sell the homestead, or any part thereof, or even a condition had been annexed to the devise, forbidding the devisee, it being a devise of a fee simple estate, such request or condition would be void, as repugnant to the estate granted. This seems to have been recognized as settled law from the days of Lord Coke at least down to the present, and is laid down and sustained by an unbroken current of authorities. A few of the American cases may be referred to. An injunction not to sell an estate for any pretext whatever: McDougal v. Brown, 21 Mo., 57. A condition that the devisee should not alien it: Reifsnyder v. Hunter, 7 Harris Pa. R,., 41. A proviso attached to a fee that. the devisees should not sell to each other, is held void, as too general in its effect: Schermerhorn v. Negus, 1 Denio, 448. Also a restraint, that the devisees should not sell until the estate, which [357]*357was given to several devisees, should be assigned in severalty, was held void, as too general and extended in its operation — there might never be such an assignment : Hale v. Tulfts, 18 Pick., 455. See cases collated, both English and American, Am. Law Reg., vol. 9, 395, et seq. See also Judge Cooper’s opinion in the case of Hooberry v. Harding, 3 Tenn. Ch. Rep., 677, and authorities there cited. It is a settled rule of law, says Judge Swayne, in the case of Nichols v. Levy, 5 Wall., 441, that the beneficial interest of. the cestui que trust, whatever it may be, is liable for the payment of his debts. It cannot be so fenced around by inhibitions and restrictions as to secure to it the inconsistent characteristic of right and enjoyment to the beneficiary and immunity from his creditors.
If these principles be settled, (and we think they are by all authority), then the question is, whether, by the simple device of giving the naked dry legal estate to a trustee (Dr. Thornburg in this case) for the use and benefit of the devisee, the limitation can be made more effective — “ that no part of the same' is • to be subject to execution or other legal process for any debt or liability he may have contracted or may hereafter contract, nor is he to sell the same or any part thereof.” We think, for several reasons, such restrictions and inhibitions must be held as void, because repugnant to the estate granted, and because contrary to the letter and spirit of our statutes and laws, which make all property of a party liable for his debts, except such as is specially by those laws exempt in favor of poor persons: See Hawkins v. Pearce, 11 Hum., 44.
[358]*358This being the general law of the land, the question is simply whether a party can so convey property to one sui juris, as that it shall be held exempt from liability declared by law; in other words, whether property can be exempted by a party because he chooses to say so, when the law has declared otherwise. We think but one answer can rightly be given to this question, and that is, the law must be the rule of' exemption, and not the will of a testator or other party conveying the estate. That the devisee is intended to have and enjoy the entire estate in this case, and all the rents, profits and emoluments of the estate, is beyond question; for the testator adds to the above the provision, that he may use the rents and profits for his support, and shall have the right to dispose of the estate by "last • will and testanjent, thus giving him not only the estate for life, but also the right of disposition untrammeled at his death.
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Freeman, J.,
delivered the opinion of the court.
This bill was filed by Turley, a judgment creditor of Massengill, with an execution returned nulla bona, seeking to subject in some form the property left by the father of said Massengill to his debt.
An answer, containing a demurrer, was filed by the respondents, and the case heard on the demurrer, which was overruled, and an appeal allowed by the chancellor, so that the case stands before us on the questions of law alone raised by the demurrer.
The questions to be decided depend on the will and codicil thereto of the father of respondent Mas-sengill, as set out in the bill of complainant, with other allegations, which we proceed to give.
By the will of the father, Robert Massengill, made in 1861, he devised and bequeathed his property by the 6th clause as follows: “ To my son, S. S. Mas-sengill, I give all the remainder of my estate, both real and personal, of every description whatever, charging him with the payment of all my just debts, and solemnly enjoining upon him to take care of and support his mother on the home farm, and to observe towards her in the future the same tenderness and affection which has so signally marked his conduct in the past. I also request of him that he will not sell the homestead of land or any part thereof, but that he will keep it as a home for himself and for those to come after him. I make no provision for my beloved wife, except that. she shall reside in the old family mansion with our son Sterling, feeling doubly [355]*355confident that his kindness and generosity will amply (supply) her wants.”
■In 1864, a codicil was added to this, as follows: “ Whereas, I, Robert Massengill, of the county of Grainger and State of Tennessee, have made my last will and testament in writing, bearing date 31st of December, 1861; now, therefore, I do by this my writing, which I hereby declare to be a codicil to my last will and testament and to be taken as part thereof, order and declare that my will is that all the property of every kind bequeathed to my son, S. S. Mas-sengill, in the 6th clause _ of the foregoing will, be vested in Dr. John W. Thornburg as trustee, for the use and benefit of my said son, and no part of the same is to be subject, to execution or other legal process for any debt or liability he may have contracted or may hereafter contract, nor is he to sell the same or any part thereof, but may use the rents and profits for his support and that of my wife, E. H. Massengill, but he shall have the right to dispose of the same by last will and testament; and lastly, it is my will and desire that this codicil be annexed to, and made a part of my last will and testament as aforesaid, to all intents and purposes.”
It is charged that Branner, a brother-in-law, assumes to be trustee as successor. to Thornburg — how appointed is not stated — and that he claims to control the property and repels all creditors, defying the officers of the law to levy on it for Massengilks debts. The mother is dead, so that the charge, whatever it may be, in her favor, is out of the way.
[356]*356It is charged, that under the will, the son received a large and valuable farm, on which he resides, in Grainger county, and that on this farm is situated one of the most valuable merchant mills in East Tennessee, from which a large income is annually derived, all of which defendant enjoys, and claims to hold free from liability to his creditors. The question is, whether this property is or can be made liable for his debts, or shall he enjoy all the fruits of ownership, and yet hold it free from the responsibilities attaching to ownership of property in general — liability to creditors for satisfaction of the debts of the owner?
If the gift had remained as in the original will, a direct gift of the entire estate to the son, with only the request that he should not sell the homestead, or any part thereof, or even a condition had been annexed to the devise, forbidding the devisee, it being a devise of a fee simple estate, such request or condition would be void, as repugnant to the estate granted. This seems to have been recognized as settled law from the days of Lord Coke at least down to the present, and is laid down and sustained by an unbroken current of authorities. A few of the American cases may be referred to. An injunction not to sell an estate for any pretext whatever: McDougal v. Brown, 21 Mo., 57. A condition that the devisee should not alien it: Reifsnyder v. Hunter, 7 Harris Pa. R,., 41. A proviso attached to a fee that. the devisees should not sell to each other, is held void, as too general in its effect: Schermerhorn v. Negus, 1 Denio, 448. Also a restraint, that the devisees should not sell until the estate, which [357]*357was given to several devisees, should be assigned in severalty, was held void, as too general and extended in its operation — there might never be such an assignment : Hale v. Tulfts, 18 Pick., 455. See cases collated, both English and American, Am. Law Reg., vol. 9, 395, et seq. See also Judge Cooper’s opinion in the case of Hooberry v. Harding, 3 Tenn. Ch. Rep., 677, and authorities there cited. It is a settled rule of law, says Judge Swayne, in the case of Nichols v. Levy, 5 Wall., 441, that the beneficial interest of. the cestui que trust, whatever it may be, is liable for the payment of his debts. It cannot be so fenced around by inhibitions and restrictions as to secure to it the inconsistent characteristic of right and enjoyment to the beneficiary and immunity from his creditors.
If these principles be settled, (and we think they are by all authority), then the question is, whether, by the simple device of giving the naked dry legal estate to a trustee (Dr. Thornburg in this case) for the use and benefit of the devisee, the limitation can be made more effective — “ that no part of the same' is • to be subject to execution or other legal process for any debt or liability he may have contracted or may hereafter contract, nor is he to sell the same or any part thereof.” We think, for several reasons, such restrictions and inhibitions must be held as void, because repugnant to the estate granted, and because contrary to the letter and spirit of our statutes and laws, which make all property of a party liable for his debts, except such as is specially by those laws exempt in favor of poor persons: See Hawkins v. Pearce, 11 Hum., 44.
[358]*358This being the general law of the land, the question is simply whether a party can so convey property to one sui juris, as that it shall be held exempt from liability declared by law; in other words, whether property can be exempted by a party because he chooses to say so, when the law has declared otherwise. We think but one answer can rightly be given to this question, and that is, the law must be the rule of' exemption, and not the will of a testator or other party conveying the estate. That the devisee is intended to have and enjoy the entire estate in this case, and all the rents, profits and emoluments of the estate, is beyond question; for the testator adds to the above the provision, that he may use the rents and profits for his support, and shall have the right to dispose of the estate by "last • will and testanjent, thus giving him not only the estate for life, but also the right of disposition untrammeled at his death.
We need not discuss or decide what would be the effect in a case of an active or special trust, created by the testator in favor of the devisee, by will duly recorded or by deed registered — no such case is before us. The trustee has no control over the property whatever, no duties to perform, no right to receive the rents or profits — consequently no trust as to their disposition. Tt is simply the case of a naked dry legal title vested in a trustee, for the use and benefit of the devisee, with no duties or trusts imposed by reason of such vestiture of title; sec. 4283 has no application to such a case. There never was any necessity for discovery in such a case in aid of the [359]*359execution from a court of law, in order to its being rendered liable to legal process: Smitheal v. Gray, 1 Hum., 495; Thomas v. Walker, 6 Hum., 95. This case, however, may well rest on the proposition, that the object and purpose of the trust, or conveyance to the trustee, is to secure and hold fur the beneficiary, an estate, or to preserve limitations on the estate that are void, as being repugnant to the estate granted, which is an absolute fee, and also as contrary to law and the policy of the State. These objects failing, the trust is unnecessary and ceases with the failure of its object and purpose. The trustee only takes exactly the estate or quantity of interest which the purposes of the trust require. There being no legal purpose to be served in this case, the trust does not take effect, and the estate must be held absolute in the beneficiary: Ellis v. Fisher, 3 Sneed, 231.
A court of chancery, however, may, as we think, in this case be invoked, in order to clear up the title and remove an apparent difficulty in effectuating the legal remedy of the creditor, and have the judgment of the court upon the amount and character of the estate of the defendant, as is provided for in this case, so that a purchaser may know what estate he obtains should he desire to purchase the same.
For these reasons we affirm the decree of the chancellor overruling the demurrer, and remand the case to be further proceeded with.