I concur in the result attained in the opinion of the Chief Justice, but by a different train of reasoning, which I shall present. *Page 381
Action of dower in certain lands, in which an interest or estate was devised to James C. Spann, husband of the demandant by the will of his father, Lawrence M. Spann. Certain other lands held by James C. Spann, independently of the will, were also involved in the proceeding; in these the demandant has had dower admeasured; no question arises as to that admeasurement in this appeal. The case was heard by his Honor Judge Shipp upon an agreed statement of facts. He filed a decree allowing the demandant's claim of dower, and from that decree the defendants have appealed.
The issue turns upon the quantum and quality of the estate which James C. Spann, the husband, took under the will of his father, Lawrence M. Spann. The appellants contend that that estate was equitable, not legal; that the trust was not executed, for the reason that it was necessary for the trustee to hold the legal title to protect the estate from disposition thereof by the beneficiary, James C. Spann, and from sequestration by his creditors, and to preserve the contingent remainders supposed to be created by the will; that, the estate being equitable, the widow of the beneficiary is not entitled to dower therein; and that at best the estate in James C. Spann was not a freehold estate, subject to inheritance, but was a life estate. The respondent, on the other hand, contends that the Statute executed the trust; that James C. Spann took a fee simple defeasible under the will, a legal estate in which his widow was entitled to dower.
The testator, Lawrence M. Spann, died in 1874, leaving four children, James, Bettie, Harriet, and Ella. Bettie was the wife of A.P. Vinson, Harriet of Scott Carson, and Ella of L.W. Gillespie. The defendants Lawrence S. Carson and Annie E. Strohecker (formerly Carson) are the children of Annie Carson, first wife of Scott Carson, who afterwards married her sister, Harriet Carson. The will of Lawrence M. Spann was duly admitted to probate. *Page 382
By the first clause of the will the testator devised certain real estate, the subject of this action, to his son James C. Spann; by the second he devised and bequeathed the balance of his estate, real and personal, one-fifth each to his son James, his daughter Bettie, his daughter Harriet, his daughter Ella and his two grandchildren Lawrence S. Carson and Anna Carson (now Strohecker); by the sixteenth (the vital) clause in the determination of this appeal he directed:
"All the estate real and personal given, or intended to be given thereafter by this will, I wish held in trust by myfriend William J. Reynolds, so that the portions or sharesallotted to my son James shall not be subject to his disposalor liable for his debts, and the proportions or shares allotted to my daughters shall not be subject to their disposal or liable for their own debts or the debts of their present or any future husbands."
By the seventeenth clause he provided:
"Should any of my children die and not have a child or children who shall marry or attain the age of 21 years, all the estate real and personal given them by this will, I wish equally divided between my surviving children and my two grandchildren Lawrence and Anna Carson, shall only be entitled to one child's portion."
In 1879 proceedings in partition were instituted which culminated in allotting to the several devisees their respective interests in the real estate devised.
On August 6, 1904, Lawrence S. Carson conveyed to James C. Spann all of his interest in the real estate devised to James C. Spann under the will. This interest consisted of the executory devise in his favor, created by the seventeenth clause of the will above quoted.
On December 14, 1911, Annie E. Strohecker, formerly Carson, conveyed to James C. Spann, all her interest in the real estate devised to James C. Spann, under the will. This interest consisted of the executory devise in her favor created by the same clause of the will. *Page 383
On October 30, 1920, James C. Spann died, without ever having had a child born to him. His sisters Bettie and Ella had predeceased him, and there were left of the beneficiaries provided for in the seventeenth clause of the will only Harriet S. Carson, sole surviving child of the testator, and her two children, Lawrence S. Carson and Annie E. Strohecker. James C. Spann left a will, in which he devised to his nephew and niece, Lawrence S. Carson and Annie E. Strohecker, the interests which they had respectively conveyed to him by the deeds above referred to, and after certain legacies he devised all the residue of his estate to his wife, the demandant here, for life or widowhood, in lieu of dower, with remainder over to said nephew and niece, in fee simple, with certain limitations not material to the present inquiry.
Before the commencement of the present proceeding for dower, the demandant gave due notice of her election to renounce all claims under the will and to demand her dower instead.
There appears to be no contest over the proposition that if James C. Spann took under the will a legal, fee-simple defeasible estate, the widow is entitled to dower in the land so held by him. It scarcely needs authority for the well-established rule, that a widow is not dowable of a trust estate. It is so conceded by the attorneys for the respondent:
"It is also admitted that dower is a legal right and can attach only on a legal seizin of the husband during coverture."
— a proposition supported by Milledge v. Lamar, 4 Des., 638; 4 Kent's Com. (14th Ed.), 43; 1 Scribner, Dower (2d Ed.), 396-400; Young v. McNeill, 78 S.C. 145;59 S.E., 986.
Further, the attorneys for the respondent say:
"If the trust created under and by the terms of the last will and testament of L.M. Spann was not executed by the *Page 384 statute of uses, then Mrs. Spann would have no right of dower."
This is also the position taken by the attorneys for the appellants. So that the issue is determinable by ascertaining whether the interest devised in favor of James C. Spann, in the real estate in question, is legal or equitable.
It is clear from the sixteenth clause of the will that the testator intended and provided that whatever interest was devised to James C. Spann should be held by the trustee named, so that James C. Spann should not be permitted to dispose of any part thereof, and that none of it should be liable for his debts. It is equally clear from the seventeenth clause, that executory devises were provided for certain named beneficiaries. These devises were to become effective upon the happening of a double contingency: (1) That James C. Spann should die "and not have a child or children who shall marry or attain the age of 21 years"; and (2) that those of the class mentioned, "my children," should be alive at the time of the happening of the first contingency. The second contingency did not apply to Lawrence and Anna Carson, named specifically among the beneficiaries of the executory devise.
The pivotal question then is, whether or not these specific instructions to the trustee, these express declarations of the trust, are legally valid. If they are, there can be no question but that the trust falls within the class of trusts wherein the trustee is charged with duties to perform, in connection with the trust, which require him to retain the legal title, under which circumstances the statute does not execute the trust.
The general rule is thus expressed in Carrigan v.Drake, 36 S.C. 365; 15 S.E., 341 (a quotation from Posey v. Cook, 1 Hill, 413):
"Perhaps the rule might be more accurately expressed to say that where the intention is that the estate shall not be executed in the cestui que use, and any object is to be *Page 385 effected by its remaining in the trustee, then it shall not be executed."
In Ayer v. Ritter, 29 S.C. 135; 7 S.E., 53, the Court says:
"It has been uniformly held `that the Statute will not execute the use as long as there is anything remaining for the trustee to do, which renders it necessary that he should retain the legal title in order fully to perform the duties imposed upon him.'" Farr v. Gilreath, 23 S.C. 512;Huckabee v. Newton, 23 S.C. 291; Reynolds v. Reynolds,61 S.C. 249; 39 S.E., 391; Young v. McNeill, 78 S.C. 148;59 S.E., 986; Bristow v. McCall, 16 S.C. 548;McNish v. Guerard, 4 Strob. Eq., 74; Porter v. Doby, 2 Rich. Eq., 53.
The duties which the appellants contend are imposed by the will upon the trustee, as being sufficient to prevent the operation of the Statute, are: (1) To hold the property so that the portion allotted to James C. Spann shall not be subject to his disposal; (2) to hold the property so that the portion allotted to James C. Spann shall not be liable for his debts; (3) to hold the property in order to protect the interests of contingent remaindermen.
I shall address myself first to the last alleged duty to protect the interests of contingent remaindermen. The position taken by the appellants that the seventeenth clause of the will creates contingent remainders in favor of either the children of James C. Spann or the surviving children of Lawrence M. Spann and the two grandchildren named is clearly untenable. In the first place, no estate whatever is devised to the children of James C. Spann. Their nonexistence at the time of the death of James C. Spann is simply made the condition subsequent upon the happening of which the estate is to go over by way of executory devise to "my surviving children and my two grandchildren," naming them. The interest of these beneficiaries is not an estate in remainder at all, vested or contingent, *Page 386 but an executory devise, taking effect upon the death of James C. Spann under the circumstances mentioned. The estate of James C. Spann was a fee simple defeasible.Smith v. Clinkscales, 102 S.C. 227; 85 S.E., 1064; Davisv. Hodge, 102 S.C. 178; 86 S.E., 478.
It cannot be said, therefore, that the estate was vested in the trustee for the purpose of protecting the interests of contingent remaindermen. In fact, if the interests of these beneficiaries could be construed to be contingent remainders, I do not see, since the Act of 1883 rendering it impossible for their interests to be destroyed by feoffment with livery of seizin, how it would be possible for James C. Spann, or any one else, to destroy them, and there would therefore be no peril against which the trustee would be expected to protect them.
In Howard v. Henderson, 18 S.C. 184, it is held that the legal title remains in the trustee, in order to protect contingent remainders, only where the deed shows that such was the purpose of interposing a trustee. This decision was rendered before the Act of 1883, and if since the passage of that Act the interests of contingent remaindermen, certainly of those in esse, needs no protection, even if the deed made provision therefor, it would be entirely superfluous. See, also, Faber v. Police, 10 S.C. 376, where it was sought to vest the legal title in the trustee for the protection of contingent remaindermen. The Court held that no such trust was expressed, and none would be implied.
Considering their interests as executory devises, there was nothing that the trustee could do to protect them; they would become effective upon the happening of the defeasance of James C. Spann's interest, regardless of what he or the trustee, or any one else, may have done or refrained from doing. *Page 387
The inquiry therefore is reduced to this: Does the provision that the trustee shall hold the property so that the interest devised to James C. Spann "shall not be subject to his disposal or liable for his debts" create such a valid trust imposing active duties upon the trustee, as will prevent the execution of the trust under the Statute? Nothing can be gained by the argument of the respondent that under Section 3697, Vol. I, Code of Laws A.D. 1912, the equitable interest of a judgment debtor may be levied upon and sold under execution; that for that reason the trustee could not prevent a levy and sale if he desired to do so, and that consequently the trust must be deemed to have been executed under the Statute. It has been consistently held that Section 10, page 527, of the Act of 1712, of which Section 3697 is a reproduction, "contemplates only a case where the trust is a clear and simple one for the benefit of the debtor"; that is an executed trust under the Statute. White v. Kavanagh, 8 Rich., 377; Bristow v.McCall, 16 S.C. 545. Hence no progress is made in the determination of the issue whether it be an executed or an executory trust, an active or a passive one.
"Where spendthrift trusts are held valid, they are not affected by Statutes which declare that equitable estates shall be liable for the debts of the cestui que trust (Leigh v.Harrison, 69 Miss., 923; 11 South., 604; 18 L.R.A., 49), nor by those which give an equitable remedy by which a creditor may reach property of his debtor, in spite of the fact that it will not be applicable to his use until some future time." Note 2, A. E. Dec. Eq., 640.
Narrowing the issue still further, the inquiry is whether or not the terms of the alleged trust constitute what is known as a "spendthrift trust." In a note to 2 A. E. Dec. Eq., 632, the annotator says:
"By the policy of the common law, all restraints on the free and unfettered alienations of property were void; and this principle was adopted by equity except in the case of *Page 388 separate use trusts for married women. Accordingly, a spendthrift trust, which is a trust created with the intent of assuring a maintenance for another, and at the same time securing him against the effects of his own improvidence, by providing that the fund which is to supply that maintenance shall not be voluntarily alienated by the beneficiary, or be subject to the claims of his creditors, was almost uniformly held void, both in England and the United States, until within the last few years, on the broad ground already stated, and on the further principle that it was also against the policy of the law that a man should have an estate to live on, but not an estate to pay his debts, and estates devised, bequeathed, or settled upon such trusts were accordingly held to be liable to satisfy the claim of creditors of thecestui que trust, and passed to his assignees in bankruptcy or insolvency."
He adds, however:
"This rule still prevails in England, but the current of authority in the United States, owing to various causes very clearly pointed out by Prof. Gray in the preface to the second edition of his work on Restraints on the Alienation of Property, is setting very strongly in the direction of upholding such trusts, so far as they create equitable life estates. Originally only two States, Pennsylvania and Massachusetts, held this view, * * * but in recent years the Supreme Court of the United States has adopted it, * * * and * * * other Courts have, one by one, discarded their earlier decisions, and given their adherence to the new doctrine."
The author then cites the following cases: Steib v. Whitehead,111 Ill., 247; Roberts v. Stevens, 84 Me., 325;24 Atl., 873; 17 L.R.A., 266; Smith v. Towers, 69 Md., 77;14 Atl., 497; 15 Atl., 92; 9 Am. St. Rep., 398; MarylandGrange Agency v. Lee, 72 Md., 161; 19 Atl., 534; Leigh v.Harrison, 69 Miss., 923; 11 South., 604; 18 L.R.A., 49;Montague v. Crane, 12 Mo. App., 582; Pickens v. Dorris,20 Mo. App., 1; Jourolmon v. Massengill, 86 Tenn., 81; *Page 389 5 S.W. 719; Gamble v. Dabney, 20 Tex., 69; Wallace v.Campbell, 53 Tex., 229; Patten v. Herring, 9 Tex. Civ. App. 640; 29 S.W. 388; White v. White, 30 Vt., 338; Barnes v.Dow, 59 Vt., 50; 10 Atl., 258; Wales v. Bowdish,61 Vt., 23; 17 Atl., 1000; 4 L.R.A., 819; Armstrong v. Pitts, 13 Grat. (Va.), 235; Camp v. Cleary, 76 Va., 140; Garland v.Garland, 87 Va., 758; 13 S.E., 478; 13 L.R.A., 212; 24 Am. St. Rep., 682; Banfield v. Wiggin, 58 N.H. 155.
The Supreme Court of the United States, in the case ofNichols v. Eaton, 91 U.S. 725; 23 L.Ed., 254, sums up its conclusions in these words:
"But the doctrine that the owner of property, in the free exercise of his will in disposing of it, cannot so dispose of it, but that the object of his bounty, who parts with nothing in return, must hold it subject to the debts due his creditors, though that may soon deprive him of all the benefit sought to be conferred by the testator's affection or generosity, is one which we are not prepared to announce as the doctrine of this Court. * * * Nor do we see any reason, in the recognized nature and tenure of property and its transfer by will, why a testator who gives without any pecuniary return, who gets nothing of property value from the donee, may not attach to that gift the incident of continued use, of uninterrupted benefit of the gift, during the life of thedonee."
In Bank v. Adams, 133 Mass. 170; 43 Am. Rep., 504, the Court says:
"We are not able to see that it would violate any principles of sound public policy, to permit a testator to give to the object of his bounty such a qualified interest in the income of a trust fund, and thus provide against the improvidence or misfortune of the beneficiary. * * * Under our system, creditors may reach all the property of the debtor not exempt by law, but they cannot enlarge the gift of thefounder of a trust, and take more than he has given." *Page 390
In Rife v. Geyer, 59 Pa., 393; 98 Am. Dec., 351, the Court says:
"That a benefactor has the power of thus restricting the enjoyment of his bounty through the medium of a trustduring the life of the beneficiary is now the unquestionable law in this State."
In Smith v. Towers (69 Md., 77; 14 Atl., 497; 15 Atl., 92); 9 Am. St. Rep., 398 (quoting from the syllabus) it is said:
"A devise or bequest of a beneficial life estate, so as to secure its enjoyment to the beneficiary, without making it alienable by him, or subject to the claims of his creditors, will be respected by the Courts of this State."
In Seymour v. McAvoy (121 Cal., 438; 53 Pac., 946); 41 L.R.A., 544 (quoting from the syllabus), it is held:
"The interest of a beneficiary under a trust may be made by the author of the trust unassignable and free from subjection to the claims of the beneficiary's creditors."
In the opinion the Court says:
"Alienability is not an essential attribute of an equitable life estate in property, and there is nothing in the policy of the law prohibiting a donor from providing that his bounty shall be enjoyed only by those to whom he intends to extend it, and that property devoted by him to a trust otherwise valid shall not be diverted from its appointed destination."
In 25 R.C.L., 352, it is said:
"Though, as has been seen, the English doctrine as to spendthrift trusts has been approved and adopted in some jurisdictions, it has been rejected by more of the State Courts in this country and by the Supreme Court of the United States, and the weight of authority is to the effect that the founder of such a trust may secure the enjoyment of it to the objects of his bounty, by providing that it shall not be alienable by them or become subject to be taken by their creditors, and that this intention, when clearly expressed by him, will be carried out. * * * In many of the *Page 391 cases in which the American doctrine is announced and followed, the Courts have taken the view that alienability is not an essential attribute or an equitable life estate in property, and there is nothing in the policy of the law prohibiting a donor from providing that his bounty shall be enjoyed only by those to whom he intends to extend it, and that property devoted by him to a trust otherwise valid, shall not be diverted from its appointed destination. The donor or devisor, as the absolute owner of the property, has the right to prescribe the terms on which his bounty shall be enjoyed, unless such terms are repugnant to the law, and inasmuch as such a gift or devise takes nothing from the prior or subsequent creditor of the beneficiary to which they previously had the right to look for payment, they cannot complain that the property or income shall go or be paid personally to the beneficiary and shall not be subject to the claims of creditors" — citing a long list of cases from the United States Supreme Court, California, Connecticut, Illinois, Kansas, Maine, Maryland, Massachusetts, Mississippi, Missouri, Oregon, Pennsylvania, Vermont, Wisconsin.
The Supreme Court of the United States bases its conclusion upon the declaration that alienability is not an essential element of an equitable life estate. If that be true, it is difficult for me to conceive of any good reason why such a trust is not valid, for the objection generally urged against its validity is that it constitutes a restraint upon alienation. The property devised or donated belongs to the devisor or donor; it is his property, to dispose of as he pleases; he should be allowed, as an incident of that proprietary right, to control his bounty; the trust should be upheld, not because the law is concerned to keep the donee from wasting it, though it may be as much concerned about this as to protect the homestead of a debtor, but mainly because it is concerned in protecting the donor's right of property. The donor owes the donee nothing and *Page 392 gets nothing in return; the transaction concerns him and the donee only. The existing creditor has no right to complain if his debtor should acquire a certain interest, which has cost the creditor nothing, but which is walled against his depredation. The subsequent creditor has no right to complain, for he has extended credit with full knowledge of the debtor's protected title, and if it be not a restraint upon alienation of property, who is to complain? As is said in the case of Guernsey v. Lazear, 51 W. Va., 328;41 S.E., 405;
"Whose property is this? Not that of the creditors of the son or of the husband. They have no right to that property. If they have lent credit in the life of the father or of the wife, they did it at their peril, for neither son nor husband had any interest in that property. If they extended credit after the creation of the trust, they did it with their eyes open to the trust and the character of the estate created by it. What have these creditors lost of which they can justly complain?"
As is forcibly expressed in 26 A. E. Enc. L., 141:
"As to past debts such creditors are no worse off after their debtor becomes the donee of a spendthrift trust than they were before, and as to future debts, it is their own folly if they choose to rely upon a fund which by the very terms of its donation it is impossible for them to reach, of which fact they are advised actually or constructively by the registry laws of the United States. Moreover, it is not deemed against public policy for a testator to provide a support for a spendthrift child, since it is the interest of the public that such child should not become a public burden. The rights of creditors are not deemed any more sacred than the right of property involved in the execution of the trust, or the right which a testator has that the will he made should be carried out, and not one that the Courts made for him." *Page 393
In Sherman v. Havens, 94 Kan., 654; 146 Pac., 1030; Ann. Cas., 1917B, 394 (quoting from the syllabus), it is said:
"The doctrine of spendthrift trusts approved by the majority of American Courts by which it is settled that it is lawful for a testator or grantor to create a trust estate forthe life of the cestui que trust, with the provision that the latter shall receive and enjoy the income at times and in amounts either fixed by the instrument or left to the discretion of the trustee, and that such income shall not be subject to alienation by the beneficiary, nor liable for his debts, accords with the general policy which this State has always followed respecting the rights of creditors and debtors."
In Posey v. Cook, 1 Hill, 413, there was a conveyance to the trustee in trust for the use and benefit of one Charles Posey until his youngest son should attain his majority, or, if Charles Posey should die before that time, then for the benefit of Charles Posey's family for a home until then; "that the said tract of land and premises is not to be liable for the present debts or future contracts of the said Charles Posey." At the efflux of Charles Posey's interest the land was to be equally divided between two other persons named. The question at issue was the execution of the trust under the Statute. The Court says:
"Where the intention is that the estate shall not be executed in the cestui que use, and any object is to be effected by its remaining in the trustees, there it shall not be executed. In the present case, there can be no doubt about the intention. The donor declares that it shall not be subject to the debts or contracts of Charles Posey. This cannot be, if he [Charles Posey] is to have the legal estate. The object to be effected is that the trustees shall retain the legal estate, so as to protect it from being sold for Charles Posey's debts, until the period of division shall arrive, and in the event of his death before that period, to preserve it as a home for *Page 394 his wife and children. This is what the trustees are to do."
It will be noticed that there is no reference in this case to the doctrine of spendthrift trusts, and there is enough in the duties of the trustee beyond that of protecting the interest of the beneficiary from his creditors to justify the conclusion that the Statute did not execute the trust; though great emphasis is placed in the opinion upon that feature.
In Young v. McNeill, 78 S.C. 143; 59 S.E., 986, the will devised certain property to a trustee to allow W.W. DuRant the use of the income for life; "it being my express will and intention that no part or parcel of the said estate shall in any wise be subject to the debts or contracts of the said William W. DuRant." The Court, without special reference to the subject of spendthrift trusts, sustained the validity of the trust, as imposing a duty upon the trustee "to prevent the land from being made subject to the debts or contracts of the life tenant." The Court through the present Chief Justice says:
"The words `it being my express will and intention that no part or parcel of the said estate shall in any wise be subject to the debts or contracts of the said William W. DuRant, that do now or may hereafter exist,' bring the case under consideration within the principle just stated, as they clearly show that the duty imposed upon the trustees rendered it necessary for the legal title to remain in them, in order to prevent the land from being made subject to the debts or contracts of the life tenant."
The "principle just stated" referred to was the principle declared in Posey v. Cook, 1 Hill, 414, quoted above. The Court makes no reference to the doctrine of spendthrift trusts.
The case of Heath v. Bishop, 4 Rich. Eq., 46; 55 Am. Dec., 654, is frequently cited by text-writers and annotators as having committed this Court to the English doctrine. There are in that case expressions of the strongest character sustaining that interpretation, but as a matter of fact the *Page 395 validity of spendthrift trusts were not at all involved in the case, and such expressions are obiter dicta of the baldest kind. There the grantor has conveyed to a trustee two slaves, in trust to pay over to the beneficiary annually the use, profits and income from the labor or hire of said slaves, with the further disposition of the fee after the death of the beneficiary. There was not a word in the conveyance tending to render the interest of the beneficiary inalienable or exempt from liability for his debts. The beneficiary had left the State, and a fund had accumulated from the hire of the slaves. The creditors sought to have it applied to their claims, and very properly the Court ordered that done. The chancellor in his decree says:
"Surely a father may provide a maintenance for a prodigal and insolvent son beyond the reach of creditors," and even in such a case as it was, with no provision against alienation or liability for debts, he further remarked:
"If John G. Bishop [the beneficiary] were within this jurisdiction and without other means of maintenance than from the hire of these two slaves, I should probably reject the prayer of the petition."
The chancellor's decree, requiring the accumulated fund to be paid to the creditor, was modified by directing the institution of a creditor's bill. The observations apparently applicable to spendthrift trusts were entirely outside of the issues in the case.
It is no reply to the conclusion I have arrived at to invoke the doctrine announced in Symmes v. Cauble, 85 S.C. 435;67 S.E., 548, which has been technically referred to as the doctrine of "cessor"; that is a provision that, if the interest of the beneficiary should be attempted to be subjected to his debts, it should "cease" and vest in another. That arrangement is perfectly valid, but it does not follow that it is exclusive. *Page 396
However firmly the doctrine seems to be now established in favor of the validity of the spendthrift trusts, the limitation is equally firmly established that they are confined to equitable life estates or to the income from certain property or funds, and that they cannot exist in reference to equitable fee-simple estates, of which the estate in the case at bar is an example.
"The law goes sufficiently far in sanctioning the removal of property from the field of commercial and business intercourse, * * * when it sustains the inalienable equitablelife estates known as spendthrift trusts." Kerns v. Carr,82 W. Va., 78; 95 S.E., 606; L.R.A. 1918E, 568.
The doctrine is clearly indicated in an exceedingly able opinion by Judge Ritz, presiding Justice of the West Virginia Supreme Court, in the case of McCreery v. Johnston,90 W. Va., 80; 110 S.E., 464, where he says:
"This conclusion is supported by the authorities, so far as we have been able to examine them. In nearly all of the cases in which spendthrift trusts have been upheld only equitable life estates were attempted to be granted. The doctrine of all of these cases, however, is that a departure from the rule against restraints will only be allowed to the extent necessary to accomplish the testator's purpose. The case of J.S. Menken v. Brinkley, 94 Tenn., 721;31 S.W., 92, is reported in 2 American Eng. Dec. in Equity, at page 619, and there is attached to this report of the case an extensive monographic note upon this question of spendthrift trusts. The author of that note, after reviewing the authorities, concludes with this language, which has peculiar application to the instant case: `But the creation of an inalienable equitable fee is not allowed anywhere.' The doctrine is fully supported by * * * Keyser's Appeal,57 Pa., 236, where, in an opinion delivered by Judge Sharswood, the power to impose such a restraint upon an equitable fee-simple estate was denied. This case is, perhaps, of peculiar significance, inasmuch as the State of Pennsylvania is the *Page 397 mother of this class of trusts. This doctrine is also supported by the following authorities: Page on Wills, § 684; Gray on the Rule Against Perpetuities, § 235; Perry on Trusts, § 386A; Sparhawk v. Cloon, 125 Mass. 263."
It cannot be argued successfully that the testator might have established a valid spendthrift trust by creating an equitable life estate in James C. Spann, and that, as the equitable fee-simple estate included that, the trust was valid as to the income. The answer to that is that he did not do what he might legally have done, but did that which was absolutely void; and, the trust being void, the trustee was left with no duty upon his hands; a condition which assured the execution of the trust and the right of the demandant to dower.
With the greatest respect for the opinion of the learned Chief Justice, I do not think that the case of Howe v. Gregg,52 S.C. 88; 29 S.E., 394, is at all controlling. The decree on circuit in that case was written by Judge Benet, the opinion of the Court by Justice Pope; Chief Justice McIver and Justices Jones and Gary concurring in the result only. The case is therefore simply an adjudication of the legal rights of the parties to that action. But aside from that it is impossible to determine what was decided in that case. The circuit decree finds that there was a direct devise to James Arnold, and his wife of a life estate, without the interposition of a trustee and of course there was no pretense of a spendthrift trust, and, being a legal estate, the provision for immunity from the creditors of the life tenants was necessarily void. In the opinion a suggestion is made that the life tenants were quasi trustees for the children; but the result was the affirmance of the circuit decree, which in the conclusion of three out of four Justices of itself expressed a dissatisfaction with the reasoning of the opinion.
The following South Carolina cases bear more or less directly upon the subject discussed: Ramsay v. Marsh, 2 *Page 398 McCord, 252; 13 Am. Dec., 717; Escheator v. Smith, 4 McCord, 452; Ford v. Caldwell, 3 Hill, 248; Jenney v.Laurens, 1 Speers, 356; McCaw v. Galbraith, 7 Rich., 74;McNish v. Guerard, 4 Strob. Eq., 66; Porter v. Doby, 2 Rich. Eq., 49; Health v. Bishop, 4 Rich. Eq., 46; 55 Am. Dec., 654; Williams v. Holmes, 4 Rich. Eq., 475; Creightonv. Pringle, 3 S.C. 77; Faber v. Police, 10 S.C. 376;Bouknight v. Epting, 11 S.C. 71; Howard v. Henderson,18 S.C. 184; Farr v. Gilreath, 23 S.C. 502; Bowen v.Humphreys, 24 S.C. 452; Wieters v. Timmons, 25 S.C. 488;1 S.E., 1; Ayer v. Ritter, 29 S.C. 135; 7 S.E., 53;Smith v. Smith, 24 S.C. 304; Snelling v. Lamar, 32 S.C. 72;10 S.E., 825; 17 Am. St. Rep., 835; McNair v. Craig,36 S.C. 100; 15 S.E., 135; Rivers v. Rivers, 36 S.C. 302;15 S.E., 137; Robinson v. Ostendorff, 38 S.C. 66;16 S.E., 371; Holmes v. Pickett, 51 S.C. 271; 29 S.E., 82;Howe v. Gregg, 52 S.C. 88; 29 S.E., 394; Bank v. Garlington,54 S.C. 413; 32 S.E., 513; Humphrey v. Campbell,59 S.C. 39; 37 S.E., 26; Reynolds v. Reynolds, 61 S.C. 243;39 S.E., 391; Uzzell v. Horn, 71 S.C. 426;51 S.E., 253; Early v. Early, 75 S.C. 15; 54 S.E., 827;Young v. McNeill, 78 S.C. 143; 59 S.E., 986; Pope v.Patterson, 78 S.C. 334; 58 S.E., 945; Breeden v. Moore,82 S.C. 534; 64 S.E., 604; Steele v. Smith, 84 S.C. 464;66 S.E., 200; 29 L.R.A. (N.S.), 939.
MR. JUSTICE MARION concurs. *Page 399