Opinion
8 Div. 225.
June 30, 1943.
Appeal from Circuit Court, Jackson County; W. J. Haralson, Judge.
Bill to subject property devised by will in trust for respondent to satisfaction of complainant's judgment debt by Pearl Beech Antone, as administratrix of the estate of Alexander Beech, deceased, against J. D. Snodgrass, Jr., and others. From a decree sustaining a demurrer to the bill as amended and dismissing it, complainant appeals.
Affirmed.
The bill alleges, in substance, that in 1933 complainant obtained a judgment against respondent J. D. Snodgrass, Jr., which is duly recorded and is still due and unpaid; that J. D. Snodgrass, Sr., in 1931 made and executed a will which, upon his death in 1936 was admitted to probate; that respondents J. M. Snodgrass and J. E. Kelly were by the will named as executors and trustees and have been appointed and are now acting as such; that in and by said will all of testator's property was bequeathed to testator's wife for and during the period of her life, and after her death in fee simple to testator's children except J. D. Snodgrass, Jr., to whom a life estate, in trust, was devised. That the wife of testator died in the year 1937 or 1938, and J. D. Snodgrass, Junior's interest since arising under said will is largely more than the amount of complainant's judgment. That execution has been duly issued on said judgment and is in the hands of the sheriff, who refuses to levy on same unless indemnified.
The prayer of the bill is that the respondent executors be required to file an inventory of the property of said estate and a reference be had to ascertain the same; that said respondents be required to pay, out of any property of J. D. Snodgrass, Jr., received by them, the amount of complainant's judgment, or that the sheriff be required to levy upon and sell sufficient of the lands upon which the judgment debtor holds a life estate to satisfy said judgment.
The will, exhibited with the bill of complaint provides in pertinent part as follows:
"Subject to the life estate, in trust, hereinabove given, devised and bequeathed to my beloved wife, Hattie M. Snodgrass, it is my desire that all of my property shall be divided and disposed of as follows:
* * * * * *
"One fifth of all of said property I hereby give, devise and bequeath to my son, J. D. Snodgrass, Jr., for and during the term of his natural life, to be held in trust, however, by my executors, hereinafter named, as more specifically set out in the following section of said will, and at the death of the said J. D. Snodgrass, Jr. to the children of the said J. D. Snodgrass, Jr.
"Section Nine. It is my will and desire that the one fifth interest heretofore bequeathed to my son, J. D. Snodgrass, Jr. shall be held by my executors, hereinafter named, in trust, for him during the term of his natural life, and said executors are hereby authorized, empowered and required to collect the rents, income and profits from the share of my property hereby bequeathed to my son, J. D. Snodgrass, Jr. and to otherwise manage, control and invest said rents, income and profits from said share and to use the proceeds, and, if necessary, the corpus of said estate, for the support, care, maintenance and wellbeing of my said son for and during the term of his natural life, and at his death, the remainder to be divided equally among the children of my said son.
"Section Ten. If during the continuation of the trust herein established for my said son, J. D. Snodgrass, Jr. my executors should, at any time, deem it advisable to turn over to my said son his share of said estate to be managed and controlled by him during his life for his support, maintenance, care and wellbeing, then authority is hereby given said executors to do so, but this shall not be done, except upon the consent of both of my said executors, and they shall, in no event, be compelled to do so, unless it shall be deemed advisable by both of them.
"Section Eleven. This trust for my son, J. D. Snodgrass, Jr. is made and created upon the express condition that neither the principal of the trust, nor any income therefrom, is to be subject to the payment of any debt of the said J. D. Snodgrass, Jr. now existing, or hereafter created, and if any claim is made, or step taken, to subject any money, or other property, under this trust, to the payment of any such debts, or, in the event of the bankruptcy of said son, then this trust shall terminate at once and the full legal title to said property, both real and personal, shall immediately vest in the children of my said son, J. D. Snodgrass, Jr. share and share alike.
"Section Twelve. If, in any event, or under any circumstances, it should be held by any court that the trust herein made for my said son J. D. Snodgrass, Jr. is illegal or void, then, it is my will and desire that the property covered by said trust herein bequeathed to my son, J. D. Snodgrass, Jr., in trust, shall immediately vest in the children of the said J. D. Snodgrass, Jr., share and share alike.
"Section Thirteen. It is my intention by this will to make provision for my son, J. D. Snodgrass, Jr., for and during the term of his natural life, but, if, for any reason, it should be held that my will is not effectual for that purpose, then it is my desire that the property herein bequeathed to said son be bequeathed to the children of my said son, J. D. Snodgrass, Jr. share and share alike."
Milo Moody, of Scottsboro, for appellant.
The provisions of the will exempting the life estate of J. D. Snodgrass, Jr. from the payment of his debts is against public policy. His estate is subject to execution or attachment. Jones v. Reese, 65 Ala. 134; Rugely v. Robinson, 10 Ala. 702; Tatum v. Commercial Bank Trust Co., 185 Ala. 249, 64 So. 561; 69 C.J. 1245.
Proctor Snodgrass, of Scottsboro, for appellees.
The provisions of the will are valid. Demurrer to the bill was properly sustained. Hartwell v. Mobile Towing Wrecking Co., 212 Ala. 313, 102 So. 450.
The matter presented by the appeal raises the question as to whether any of the properties devised by J. D. Snodgrass in his last will and testament may be subjected to the payment of the debts of his son J. D. Snodgrass, Jr.
The learned counsel for appellant cites in support of his contention Jones v. Reese, 65 Ala. 134; Rugely Harrison v. Robinson, 10 Ala. 702. There are other cases to like effect. Taylor v. Harwell, 65 Ala. 1; Robertson v. Johnston, 36 Ala. 197. These cases were considered by Mr. Justice Bouldin in Hartwell et al., v. Mobile Towing Wrecking Co., 212 Ala. 313, 102 So. 450, 451, wherein it was observed:
"* * * the laws of Alabama fully recognize the right of the owner of property to dispose of it by will, to select the objects of his bounty, and to impose such conditions upon the bequest as he may elect, so long as they are not violative of the law, or public policy of the state. * * *
"No such conditions accompany this bequest. So far as the beneficiary is concerned, the creditors hold the whiphand. The aid given by the bequest enables the debtor to devote more of his income and energy to the payment of his debts. The condition attached warns him to keep out of debt or keep his creditors satisfied he is doing what he can for them. He holds at their will and by their grace. * * *" [Italics supplied].
Wills with provisions like that before us were sustained in Henderson v. Henderson, 210 Ala. 73, 97 So. 353; First National Bank of Mobile v. Hartwell, 232 Ala. 413, 168 So. 446; Henderson v. Sunseri, 234 Ala. 289, 174 So. 767. The above cases are in line with the opinion of Judge Stone in You v. Flinn, 34 Ala. 409.
In 119 A.L.R. 44 it was said that in Hartwell v. Mobile Towing Wrecking Co., 212 Ala. 313, 102 So. 450, where there was a "provision for forfeiture of a beneficiary's interest, with limitation over, if his creditors should attempt to reach it," the will was held valid. And further that "it has been held that creditors could not reach the interest of one of several concurrent beneficiaries of a trust, where his interest was not separable from that of others. Hill v. McRae, 27 Ala. 175, and Bell v. Watkins, 82 Ala. 512, 1 So. 92, 60 Am.Rep. 756."
Mr. Snodgrass set up a trust in certain properties that was severable from the bequests and devises to other children, yet it is not subject to the payment of the debts of J. D. Snodgrass, Jr., because of limitations contained in the testamentary trust. Tatum v. Commercial Bank Trust Co., 185 Ala. 249, 64 So. 561; Hartwell v. Mobile Towing Wrecking Co., supra.
The provisions of the will of Mr. Snodgrass touching the matter will be embraced in the statement of the facts. Under the foregoing authorities, no property was devised or bequeathed to the son J. D. Snodgrass, Jr., which was subject to equitable interference or subject to the debts of said son.
It results from the foregoing that the decree of the circuit court is without error and due to be affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.