The trust “ for the benefit of the said Michael O’Keefe for a homestead for his life, and for the said Thomas O’Keefe after the said Michael’s decease, his heirs and assigns,” gave Thomas O’Keefe a vested remainder in fee, and did not *510attempt to hamper his power of alienation. He executed a deed of assignment to the town of Northampton, purporting to be “in consideration of one dollar and other valuable consideration.” It does not appear that the consideration was not received as stated, and it is presumed that consideration was received in the absence of evidence to the contrary, Boynton v. Rees, 8 Pick. 829, if such evidence would be admissible in favor of persons having no better standing than the grantor. Blodgett v. Hildreth, 103 Mass. 484, 487. Mather v. Corliss, 103 Mass. 568. The deed further purported to be a present conveyance of an interest which could be presently conveyed, and which was conveyed therefore, even if the deed was without consideration, there having been no fraud or duress, unless some illegality is disclosed by the transaction.
The deed shows that its object was to repay expenses incurred by the town for the support of the grantor as a pauper, and, if anything was ‘left after paying for past charges, to pay for his support in the future. We assume that the grantor was not bound to pay for either, and that the selectmen could not bind the town to support him in the future. Still, it was lawful for him to repay the town, if so disposed, and the deed was valid so far as it looked to that end. Stow v. Sawyer, 3 Allen, 515, 517. It was equally lawful for him to put funds into the hands of the selectmen for his future support. Sutton Parish v. Cole, 3 Pick. 232, 238. Groveland v. Medford, 1 Allen, 23, 24. Webb v. Neal, 5 Allen, 575. And even if he could have avoided the conveyance, to that extent, the next day, still when the funds or their equivalent had been applied it would have been too late, and in fact he never attempted to avoid it. The selectmen and overseers of the poor, however limited their authority to impose burdens on the town, could accept a gift of funds for its benefit. Worcester v. Eaton, 13 Mass. 371, 379.
It is suggested that the grantor was incapacitated from exe-. outing this deed in 1882, by a decree passed in 1873, nine years before, appointing a guardian for him as a spendthrift, although the person appointed never qualified or entered upon his duties. Putting the case in the most favorable way for the plaintiff, the question is whether a guardian had been appointed, within the meaning of the Pub. Sts. c. 139, § 9, which makes such *511appointment a condition to its avoidance of transfers made by the spendthrift.
There is no incapacity of spendthrifts at common law. Manson v. Felton, 13 Pick. 206, 210. Smith v. Spooner, 3 Pick. 229. 1 Bl. Com. 305, 306. Nor does the statute so far liken them to insane persons as to create an incapacity, apart from guardianship. - The validity of a debt or gift would not be affected by an admission of record that, at the time of contracting the one or making the other, the contractor or donor was a spendthrift, and ought to have been under guardianship.
This being so, it seems to us extravagant to suppose that a decree, which can only operate to declare that the party is a spendthrift and ought to be under guardianship, should indefinitely suspend the power of dealing with his own property, which a person of that sort has by the general ^principles of law apart from the decree. The immediate ground on which the power is withdrawn from him would not seem to be his condition, but that the power is effectively transferred to somebody else, although his condition is the reason for which the transfer is made.
We assume that, while it was open to the person nominated as guardian to accept the appointment, if the spendthrift had made a transfer, its effect would have been in suspense, and would have been avoided by an acceptance of the guardianship. But when acceptance becomes impossible, as it has by the death of the spendthrift, it becomes impossible that the decree should ever be operative according to its purport and intent, and we think that it should not be allowed a partial operation of a kind never contemplated by the statute. When we add to the foregoing considerations the fact that at the date of the deed nine years had elapsed since the decree, we are of opinion that the person appointed must be taken to have declined the appointment before the deed was made, and thus, for an additional reason, that it cannot be said that a guardian was appointed at that time, even if it would have been in the power of the Probate Court to appoint a new person under the old proceedings after notice, Allis v. Morton, 4 Gray, 63, and a new petition would not have been necessary ; a proposition which is not entirely clear, in view of the possible change of habits in the interval.
Decree for the claimant.