On Rehearing. It was intended on the original consideration of this cause to say that the only reservation made by the grantor, Jake Henderson, was in the income of the estate subject-matter or corpus and that the remainder was presently vested in trustees for grantor's children. It follows from this holding that recovery by a creditor could not be had (1) out of the corpus so conveyed, (2) and that there must be an income from that corpus, after the trustees have duly protected the corpus and administered the same, that the grantor Jake Henderson could demand and recover. It is only this life estate and benefit in income, reserved to the use of and for the benefit of the maker, Jake Henderson, that come within the influence and interdiction of the statute, section 8032, Code, and subject the income after due administration to creditors.
Such is the effect and analogy contained in our decisions. Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Morton Hard. Co. v. Barranco, 233 Ala. 346, 172 So. 109. Under the rules declared and prevailing, it is only the benefit made in trust for the use of the person making the same that is subject to creditors, and not the trust and vested remainder conveyed in trust for the benefit of the grantor's children. This conveyance by way of vested remainders is valid and within the beneficent provisions of sections 6912 and 6913, Code. Henderson v. Henderson, supra; Morton Hard. Co. v. Barranco, supra.
It is only the income from the duly administered corpus of the estate in question which is reserved as a benefit for the grantor that is the subject of interception by creditors. The trust set up is sustained. The corpus in remainder for children is beyond the reach of creditors. First Nat. Bank v. Hartwell,232 Ala. 413, 168 So. 446; Crawford v. Carlisle, 206 Ala. 379,389, 89 So. 565.
From what has been said, it is plain that the use of the word "void" in sections 8032 and 8038, Code, is manifestly taken in the sense of "voidable" in favor of the particular persons within the protection of the statute. That is to say, as between the grantor and the grantee, the conveyance though voluntary is valid. In construing section 8038, Code, the court has drawn distinction between existing and subsequent creditors, although the literal words of the statute make no such distinction. See construction of the statutes in McCrory et al. v. Donald, 192 Ala. 312, 68 So. 306; Bush v. Coleman,121 Ala. 548, 25 So. 569.
The trust set up in this case antedates the "spendthrift trust" (Acts 1935, p. 626), and consideration of such statute is not necessary. *Page 293
It follows from the foregoing that the application for rehearing should be and it is overruled.
Overruled.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.