PRESENT: All the Justices
GREER P. JACKSON, JR., ESQ., ADMINISTRATOR,
D.B.N, C.T.A., AND SUBSTITUTE TRUSTEE FOR THE
ESTATE OF GERTRUDE PIERCE WORTHINGTON
OPINION BY
v. Record No. 041308 JUSTICE G. STEVEN AGEE
March 3, 2005
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Greer P. Jackson, Jr., Esq., Administrator, d.b.n., c.t.a.
and Substitute Trustee for the Estate of Gertrude Pierce
Worthington (the “Trustee”) appeals from the judgment of the
Circuit Court of the City of Richmond which subjects the Trustee
to garnishment for the debts of a spendthrift trust beneficiary.
For the reasons set forth below we will reverse the judgment of
the trial court.
I. BACKGROUND AND PROCEEDINGS BELOW
Gertrude Pierce Worthington (Gertrude) died testate on
August 6, 2000. Gertrude’s will divided her residuary estate,
which was the bulk of her estate, into two testamentary trusts
for her sons. Seventy-five percent of the residuary estate
would be held in trust for Craig W. Worthington (Craig’s Trust).
The remaining twenty-five percent would be held in trust for
Bradford N. Worthington (Bradford’s Trust). 1
1
The will established a trust for a portion of the
residuary estate for Gertrude’s husband, Norman W. Worthington,
Bradford qualified as administrator of Gertrude’s estate
after the named fiduciaries declined to serve. Fidelity and
Deposit Company of Maryland (Fidelity) executed a bond in the
amount of $ 296,000 as corporate surety for the faithful
discharge by Bradford of his duties as administrator.
Without approval by a court or authority under Gertrude’s
will, Bradford took estate funds to invest in his personal
business, a breach of his fiduciary duties as administrator.
Bradford failed to file fiduciary accountings as required by law
or return the misappropriated funds to the estate. The
Commissioner of Accounts for the City of Richmond filed a
petition to remove Bradford as administrator of Gertrude’s
estate and to forfeit the bond. After a hearing, the trial
court removed Bradford as administrator of the estate and
ordered him to file a final accounting. The trial court stayed
consideration of forfeiture of the bond until Bradford filed a
final accounting and the Commissioner of Accounts filed a final
report. The Trustee was appointed by the trial court as
if he survived her. It does not appear from the record that he
did survive Gertrude and nothing in the record indicates such a
trust was established. In any event, that factor has no bearing
on the issues in this appeal.
2
administrator d.b.n.c.t.a. of Gertrude’s estate and trustee of
the testamentary trusts. 2
Bradford never filed an accounting and Fidelity paid the
amount of $127,808.60 to the Trustee as administrator of
Gertrude’s estate representing the entire amount of Bradford’s
defalcation and costs and making the estate whole. The trial
court entered an order relieving Fidelity of its obligations as
surety and awarding Fidelity a judgment against Bradford in the
amount of $127,808.60, plus interest. Fidelity obtained a writ
of fieri facias and instituted a garnishment proceeding against
the Trustee to seize funds in Bradford’s Trust in partial
satisfaction of the judgment against Bradford.
Fidelity filed a motion to require the Trustee to show
cause why he had not answered the garnishment summons. In
response, the Trustee alleged that Gertrude’s will created a
spendthrift trust for Bradford’s benefit and, therefore, trust
funds could not be paid to a creditor of any beneficiary of such
a trust.
The trial court conducted a hearing on the show cause
motion and ultimately ruled “that a spendthrift trust was
2
The Trustee succeeded Karen E. Dunivan, who was originally
appointed as Administrator to replace Bradford but was removed
due to a conflict of interest.
3
created for Bradford” under Gertrude’s will. 3 Nonetheless,
the trial court held that Bradford’s interest in Bradford’s
Trust in the hands of the Trustee could be garnished to
satisfy Bradford’s debt to Fidelity. The trial court based
its judgment on two grounds. First, it opined that
Gertrude intended Bradford’s Trust to have less spendthrift
protection than Craig’s Trust. Second, the trial court
concluded there was a public policy exception to
spendthrift protection if that would “allow one
beneficiary, through his or her misconduct, to deprive the
other beneficiaries of their entitlements.”
We awarded the Trustee this appeal.
II. ANALYSIS
A spendthrift trust is a trust created for the maintenance
or benefit of a beneficiary which is secured against his
improvidence, placing it beyond the reach of his creditors. See
Alderman v. Virginia Trust Co., 181 Va. 497, 512-13, 25 S.E.2d
333, 340 (1943). Accord In re Wilson, 3 Bankr. 439, 444 (Bankr.
W.D. Va. 1980). In Virginia, spendthrift trusts are authorized
by statute. See Code § 55-19.
3
The trial court initially ruled that Bradford’s Trust was
not a spendthrift trust. However, the Trustee moved for
reconsideration, and the trial court changed its ruling.
Fidelity did not assign cross error to this finding of the trial
court so its argument that Bradford’s Trust is not a spendthrift
trust will not be considered. Rule 5:17(c).
4
Spendthrift trusts, not repugnant to the law, are
allowed to give effect to the will of the donor and
not because of any special consideration for the
donee. . . . Any conveyance whether by operation by
law or by act of any of the parties, which disappoints
the purposes of the settlor by diverting the property
or the income from the purposes named, would be a
breach of the trust.
Alderman, 181 Va. at 518, 25 S.E.2d at 342 (citation and
internal quotation marks omitted).
Article VIII of Gertrude’s will provides, in pertinent
part, as follows:
To the extent permitted by law, the principal and
income of any trust shall not be liable for the debts
of any beneficiary or subject to alienation or
anticipation by a beneficiary, except as otherwise
provided. Neither Norman William Worthington, Craig
William Worthington, or any other beneficiary of any
other trust under this agreement shall have the right
to anticipate, sell, assign, mortgage, pledge or
otherwise dispose of or encumber all or any part of
the trust estate nor shall any part of the trust
estate including income, be liable for the debts or
obligations of any kind of the Beneficiary or be
subject to attachment, garnishment, execution,
creditor’s bill or other legal or equitable process.
Although the trial court determined this provision
qualified Bradford’s Trust as a spendthrift trust, it
nonetheless entered judgment for Fidelity permitting it to
garnish assets in Bradford’s Trust while in the hands of the
Trustee. Because Bradford was not mentioned by name in Article
VIII, but was only included as “any other beneficiary of any
other trust under this agreement,” the trial court opined that
5
. . . this is a fairly strong indication that the
testator wanted the assets of Norman Worthington and
Craig Worthington to have more protection than the
assets of Bradford Worthington . . . . Shielding
Bradford Worthington’s assets from garnishment would
not do that.
Citing Blakemore v. Jones, 22 N.E.2d 112, 113 (Mass. 1939), for
the principle that “the interest of a beneficiary under a
spendthrift trust may be taken to make good his liability for a
breach of trust in his capacity as trustee,” the trial court
essentially ruled that public policy permitted the garnishment
of the spendthrift interest under the instant circumstances.
The Trustee contends the trial court erred as a matter of
law. He argues that the will’s plain language contains no
provision limiting the spendthrift protection accorded by
Article VIII. Furthermore, the Trustee contends the applicable
statute governing spendthrift trusts, Code § 55-19, contains no
provision which supports the trial court’s ruling.
Fidelity responds that Gertrude could not have intended to
safeguard Bradford from the consequences of his own fiduciary
misconduct because Craig’s Trust is larger and contains a more
detailed description of the fiduciary duties with regard to
expenditures and actions on Craig’s behalf. 4 Further, Fidelity
4
Article III of Gertrude’s will sets out a five-page
detailed trust for Craig’s benefit, particularly addressing
Craig’s special needs. By contrast, Bradford’s Trust consists
of the following:
6
avers it is against public policy to grant anti-alienation
protection to a beneficiary’s trust interest for debts created
by the beneficiary’s defalcation as a fiduciary of that trust.
We agree with the Trustee.
The scope of our inquiry is well settled.
In construing a will there are two inquiries to be
made. The first is, What is the intention of the
testator as expressed by him in the words he has used?
This is the animating spirit, the essence, the soul of
the will. The words are the clothing, the mere
vehicle used, to convey his ideas. When we once
ascertain the intention of the testator, that is the
governing principle, and must prevail, unless it
violates some rule of law.
Sheridan v. Krause, 161 Va. 873, 884-85, 172 S.E. 508, 511
(1934) (citations and internal quotation marks omitted).
Gertrude’s intent is plainly and unequivocally expressed in
Article VIII. All trust beneficiaries under her will, without
limitation of any kind, are accorded the anti-alienation
protection of the spendthrift provisions. The fact that Craig
Article IV
BRADFORD N. WORTHINGTON TRUST
A. My Trustee may pay to or for the benefit of Bradford N.
Worthington during his lifetime as much of the net income or
principal of the Trust as my Trustee may deem appropriate for
his support and health. My Trustee may distribute principal in
kind while income is accumulated and shall annually add any
undistributed income to principal.
B. Upon Bradford N. Worthington reaching the age of
sixty (60), my Trustee shall distribute the remaining principal
and any accrued or undistributed income of the trust outright to
him upon his written request. If Bradford N. Worthington dies
before the termination of his separate trust, my Trustee shall
7
is mentioned by name, while Bradford is encompassed as “any
other beneficiary of any other trust under this agreement,” is a
distinction of no meaning or significance. Neither the larger
allocation of assets to Craig’s Trust, nor the more extensive
provisions for his care, limits the plain and unequivocal
language of Article VIII establishing spendthrift protection for
all beneficiaries. No provision of Gertrude’s will negates or
limits the spendthrift protection accorded Bradford’s Trust or
suggests that Gertrude’s will means anything other than its
plain language provides.
The trial court’s conclusion to the contrary ignores the
plain language of the will and is clearly error. A court has no
authority to interpolate words into a will. See Gasque v.
Sitterding, 208 Va. 206, 210, 156 S.E.2d 576, 580 (1967) (words
are not to be added or deleted in construing a will); Rady v.
Staiars, 160 Va. 373, 376, 168 S.E. 452, 452-53 (1933) (same).
It is the duty of the court to construe the will which the
testator has made and not to speculate as to his intention, or
to make a will for him. See Owens v. Bank of Glade Spring, 195
Va. 1138, 1148, 81 S.E.2d 565, 572 (1954).
Accordingly, the testator’s clear intent expressed in
Article VIII establishing spendthrift protection for Bradford’s
distribute the remaining trust estate to his descendants, per
stirpes, but if there are none, to my descendants, per stirpes.
8
Trust can be abrogated in Fidelity’s favor only if a rule of law
requires it. To answer that inquiry, we review this Court’s
application of the law of spendthrift trusts and the statutory
foundation of current Code § 55-19.
At common law, spendthrift trusts allowing testators or
grantors to protect conveyances from future alienation by the
transferee were not recognized at law or in equity. As this
Court noted in Hutchison v. Maxwell, 100 Va. 169, 176-77, 40
S.E. 655, 657 (1902), “[i]t is also well settled in England that
the right of alienation and liability for debts are inseparable
incidents of a life estate, whether limited by way of trust or
otherwise.” This principle of the common law was codified by
the General Assembly as early as 1787 and expressed in § 2428 of
the Code of 1887 as follows:
Estates of every kind, holden or possessed in trust,
shall be subject to debts and charges of the persons
to whose use or to whose benefit they are holden or
possessed, as they would be if those persons owned the
like interest in the things holden or possessed, as in
the uses or trusts thereof.
Id. at 178, 40 S.E. at 658 (citing 12 Henings Stat. at
Large, ch. 62, p. 157; 1 Rev. Code of 1819, ch. 99, sec.
30).
Accordingly, we declined in Maxwell to validate spendthrift
provisions that would bar a creditor from seizing a
beneficiary’s interest:
9
The legislation of this State shows that it was the
object and policy of the Legislature to make all
estates, where the owner is sui juris, liable for
debt, whether legal or equitable, except such as might
be exempt by express statutory provisions. The effect
of upholding spendthrift trusts would be to encourage
idleness and lessen enterprise, and to foster a class
who become more and more reckless and indifferent to
their honest debts from a sense that they are hedged
in by the law beyond the reach of their creditors.
Id. at 179, 40 S.E. at 658.
In 1919, the General Assembly amended former Code § 2428 by
adding the following language to new § 5157:
[B]ut any such estate, not exceeding one hundred
thousand dollars in actual value, may be holden or
possessed in trust upon condition that the corpus
thereof and the income therefrom, or either of them,
shall be applied by the trustee to the support and
maintenance of the beneficiaries without being subject
to their liabilities or to alienation by them; but no
such trust shall operate to the prejudice of any
existing creditor of the creator of the trust.
Code § 5157 (1919).
In Sheridan, we confirmed that this action of the General
Assembly established the enforceability of spendthrift trusts so
that the assets of a trust beneficiary, while in the hands of
the trustee, were shielded from his creditors within the limits
of the statute. We declared that spendthrift protection was to
be liberally construed:
The new part of section 5157 is clearly remedial and
not restrictive, and is to be so interpreted. As we
interpret it, the intention of the General Assembly in
enacting the new matter contained in section 5157 was
not merely to provide a begrudged exception to the
application of the doctrine of Hutchinson v. Maxwell
10
or to the rule laid down in the old part of that
section as it had been interpreted by this court in
that case. Its intention was to make a material
change in the public policy of the state on this
subject, and to liberalize and humanize the rule of
Hutchinson v. Maxwell.
161 Va. at 895, 172 S.E. at 581.
Code § 55-19, the successor to Sections 2428 and 5157, has
expanded the remedial application of spendthrift trusts in that
it contains no monetary limit or limitation “for the benefit of
the beneficiaries.” 5 The General Assembly has, however,
specifically limited spendthrift trust protection in several
enumerated circumstances set out in the statute. Thus a
beneficiary’s debts in conjunction with an employee benefit
plan, for child support, public assistance and medical
assistance are enforceable by creditors against the
beneficiary’s trust interest in the hands of the trustee
regardless of any spendthrift provisions the trust contains.
Code § 55-19(B)-(D).
The debt Fidelity seeks to collect from Bradford, for
breach of fiduciary duty, is not among the statutory exceptions
5
The former monetary limit on spendthrift trusts under Code
§ 55-19 was abrogated in 2001, the year after Gertrude died.
Acts 2001 c. 81. In Virginia, the law applicable at the date of
the testator’s death is applied in interpreting the will. See
McGehee v. Edwards, 268 Va. 15, 20, 597 S.E.2d 99, 102 (2004).
There is no issue in the current appeal that is affected by the
provisions of Code § 55-19 as amended after Gertrude’s death,
and the law in effect at the date of her death is construed in
this appeal.
11
to the coverage of Code § 55-19. Fidelity nonetheless urges
that this Court create a judicial exception, beyond the
exceptions found in Code § 55-19, to statutory spendthrift trust
protection. Fidelity contends that public policy should permit
a creditor, whose debt is derived from the beneficiary’s breach
of fiduciary duty, to reach the interests of that beneficiary
while held in trust for his benefit.
Fidelity’s argument must fail, however, because it ignores
the plain language of the statute and the fact the General
Assembly has set out with specificity any exemptions to its
coverage. We presume that the “legislature chose, with care,
the words it used when it enacted the . . . statute." Simon v.
Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003) (citation
omitted). Courts cannot “add language to the statute the
General Assembly has not seen fit to include.” Holsapple v.
Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003).
“[N]or are they permitted to accomplish the same result by
judicial interpretation.” Burlile v. Commonwealth, 261 Va. 501,
511, 544 S.E.2d 360, 365 (2001) (citation and internal quotation
marks omitted). Where the General Assembly has expressed its
intent in clear and unequivocal terms, it is not the province of
the judiciary to add words to the statute or alter its plain
meaning.
12
Code § 55-19 covers in express terms those debts not
accorded spendthrift protection. “[T]he mention of . . .
specific item[s] in a statute implies that other omitted items
were not intended to be included in the scope of the statute."
Smith Mountain Lake Yacht Club, Inc. v. Ramaker, 261 Va. 240,
246, 542 S.E.2d 392, 395 (2001). Thus, because the statute
specifically lists exceptions to spendthrift protection, those
exceptions are the only ones allowed by law. To affirm the
trial court’s addition of another exception would violate the
principle of expressio unius est exclusio alterius. Under this
principle, we have held that "when a legislative enactment
limits the manner in which something may be done, the enactment
also evinces the intent that it shall not be done another way."
Commonwealth v. Brown, 259 Va. 697, 705, 529 S.E.2d 96, 100
(2000) (citation omitted). Fidelity’s argument would require the
Court to add an exception to the statute which the General
Assembly has not seen fit to adopt. "Courts are not permitted
to rewrite statutes. This is a legislative function." Anderson
v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).
While the General Assembly may exclude from the protection of
Code § 55-19 a beneficiary’s interest in a trust for his breach
of fiduciary duty, that decision is solely within the province
of the General Assembly.
13
The trial court therefore erred in its judgment by creating
a judicial exception to the spendthrift protection afforded by
Code § 55-19.
III. CONCLUSION
The trial court erred in ignoring the plain language of
Article VIII of Gertrude’s will when it failed to accord full
spendthrift protection to Bradford’s Trust and bar Fidelity’s
garnishment. Further, the trial court erred in concluding that
a non-statutory exception to the provisions of Code § 55-19
could be created to permit a beneficiary’s creditor, such as
Fidelity, to reach the beneficiary’s interest in a trust where
that beneficiary had committed a breach of trust resulting in
his liability. Accordingly, the judgment of the trial court
will be reversed and final judgment entered on behalf of the
Trustee.
Reversed and final judgment.
14