This is a garnishment proceeding 'brought by Lee Aniia Brant,- divorced wife "and judgment creditor of Earl Brant, against R. P. Smith, trustee of a spendthrift trust creáted for the benefit of Earl Brant.
Earl Brant and Lee Anna Brant were divorced in 1934. In 1937' judgment was entered against Earl Brant ordering the payment to Lee • Anna Brant of, certain sums for support- and maintenance, of the child of the marriage. On July 15, 1948 the Cape Girardeau Court of Common Pleas found that Earl Brant owed Lee . Anna Brant $1,195 plus interest in the amount of $104.70 for unpaid weekly installments previously allowed, and ordered that, judgment against Earl; Brant be revived-in that sum. • , ,
In 1949 Earl Brant’s mother, Martha Ann Smith, died leaving a sum in a testamentary trust for Earl Brant with instructions to R. P. Smith, trustee, “to support and maintain the said Earl Brant therefrom” until he should convince the trustee of his capacity to manage and preserve the fund. The trust fund ; consisted-of cash. There has been no income from the trust'fund since the closing of the estate. The condition for the termination of ¡ the ■ trust has -not come to",pass and the' principal fund, amounting-to $1,605.73, isdn’.the hands of the trustee. - It- is this ■ fund which . Lee Anna Brant seeks-to garnish in satisfaction of her judgment. ■ ' ■ -
The Cape Girardeau Court of Common Pleas held that the corpus of the testa.mentary spendthrift- trust was subject to ,t.he claims of the judgment creditor and rendered judgment -in. favor of Lee Anna Brant, and_, against- R. P, Smith, trustee, for $1,287.95. From the judgment the trustee has. appealed. ,
Appellant makes .the point that .the lower court erred in refusing, to dismiss the interrogatories to the garnishee *736’because they were filed out of time. This question cannot be reviewed for the- reason that this point was not preserved in appellant’s motion for a new trial. Rule 3.23 of the Supreme Court, 42 V.A.M.S.
The only live question on this appeal is whether the corpus of a spendthrift trust is subject to garnishment in aid of execution on a judgment for the support of a child of the cestui que trust.
Section 456.080 RSMo 1949, V.A.M.S. provides:
■ “All restraints upon the right of the cestui que trust to alienate or anticipate the income of any trust estate ■ in the form of a spendthrift trust, or otherwise, and all attempts to withdraw said income of any trust estate from the claims of creditors of the cestui que trust, whether said restraints be by will or deed, now existing or in force, or, which may be here- ■ after executed in this state, be and the same are hereby declared null and void and of no effect, as against the claims of any wife, child or children, of said cestui que trust for support and maintenance, or, as against the claim of any said wife for alimony.”
Respondent urges that it was the legislative intent to prevent a man from using the device of a spendthrift trust to escape the obligation of supporting his family, and that instead of adopting.a literal interpretation of the statute we should so construe it as to permit a wife or minor child to reach the corpus as well as the income of a spendthrift trust.
However desirable as a matter of public policy it might be to subject the corpus of á spendthrift trust to the claim of a child of the beneficiary for support and maintenance, it does not appear that by the enactment of § 456.080," supra, the General Assembly has so provided. Under the familiar maxim, “Expressio unius est exclusio alterius,” the conclusion is inescapable that while the income of a spendthrift trust is not protected against the claims of a child of the beneficiary of a spendthrift trust, the corpus of the fund is so protected. To adopt the construction .urged by -appellant we would be required to write into the statute the words “corpus or” before the word “income.” We cannot thus usurp the function of the General Assembly, or by construction rewrite its acts. City of Charleston ex rel. Brady v. McCutcheon, 360 Mo. 157, 227 S.W.2d 736.
It' is, accordingly, the recommendation of the Commissioner that the" judgment of the Cape Girardeau Court of -Common Pleas be reversed. '
PER CURIAM.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
7"he judgment of the Cape Girardeau Court of Common Pleas is, accordingly, reversed.
RUDDY, Acting P. J., BENNICK, J., and DAVID A. McMULLAN, Special Judge, concur.