Seymour

On the first day of January, 1869, William McAvoy' died, leaving surviving him, his widow, the defendant Margaret, and two minor children, the defendant^ .Emma -and Delia. He left a will which was admitted to probate on the twenty-seventh day of January, 1869, by the probate court' of the city and county of San Francisco, of which the material portions are as follows:

On January 11, 1869, the defendant Margaret, in pursuance of. the request expressed in the will, conveyed to the executors all her interest in the property in trust to carry out the proT visions of said will. The court found, however, that William McAvoy died seised in fee of the property in question, and it follows that .the defendant Margaret had no interest in the property except such, if any, as she may have derived -under the will.

*441 On July 21, 1876, a decree of final distribution was entered, by which the property was distributed to the trustees named in the will (of whom the defendant Byrne is now the sole survivor), to have, hold, and dispose of in accordance with the terms and provisions of said will.

On April 27, 1887, the defendant ■ Delia married, and the trustee thereupon conveyed to her one…

I dissent. If it he held that the

case is not governed hy the code provision, then the rule of the coriimon law must prevail. At common law these so-called .spendthrift trusts were held invalid—the rule being as was expressed in Brandon v. Robinson, 18 Ves. 429: “Certainly no man shall have an estate to live on but not an estate to pay his debts with.. Certainly property available for the purposes of pleasure or profit shall be also amenable to the demands of justice.”

It is said that the American rule of decision is in favor of the validity of such trusts. I doubt this. Certainly in many states the English rule has been approved. In some the matter is controlled by statute. (See 23 Am. & Eng. Ency. of Law, 10.)

In Nichol v. Levy, 5 Wall. 441, it is said: “It is a settled rule of law that the beneficial interest of the cestui que trust, whatever it may he, is hable for the payment of his debts. It cannot be so fenced about by inhibitions and restrictions as to secure it the inconsistent characteristics of right and enjoyment to'the beneficiary and immunity from his creditors,” etc.

Such estates are contrary to the policy of our laws which provide means of subjecting the…