Where the testator permits trustees to pay income in their discretion, and provides for accumulation, it is a valid spendthrift trust ; Mason v. Trust Co., 78 Conn. 81, 61 AU. 57, 3 Ann. Cas. 586; Sterling v. Ives, 78 Conn. 498, 62 Atl. 948; and so where the ex ecutors are to hold the trust and pay only such part of it as they shall deem necessary for the beneficiary's support and on his death tb pay the remainder to his heirs ; Rus sell v. Hilton, 80 App. Div. 178, 80 N. Y. Supp. 563, affirmed in 175 N. Y. 525, 67 N. E. 1089.
A party can not by conveying his property in trust, reserving to himself the income thereof during his life, with remainder over, place his beneficial interest beyond the reach of creditors ; Schenck v. Barnes, 156 N. Y. 316, 50 N. E. 967, 41 L. R. A. 395; Wenzel v. Powder, 100 Md. 36, 59 Atl. 194, 108 Am. St. Rep. 380 ; Pacific Nat. Bank v. Win dram, 133 Mass. 175.
One cannot create a spendthrift trust of his own property for his own benefit ; Ap peal of Mackason, 42 Pa. 330, 82 Am. Dec. 517. Nor can there be a valid spendthrift trust where the trustee is also the cestui que .02(4, with the absolute ownership of the subject of the trust; Appeal of Mackason, 42 Pa. 330, 82 Am. Dec. 517 ; Wanner v. Sny der, 177 Pa. 208, 35 Atl. 604 ; Pacific Nat. Bank v. Windram, 133 Mass. 175.
'A trust to place one's property beyond the reach of creditors, while retaining full en• joyment of the income, through the instru mentality of a trustee, cannot be created by a married woman or a woman in contempla tion of marriage: Brown v. McGill, 87 Md. 161, 39 Atl. 613, 39 L. R. A. 806, 67 Am. St. Rep. 334. A married woman may, however, make a valid spendthrift trust in favor of her husband; Wanner v. Snyder, 177 Pa. 208, 35 Atl, 604.
Upon a petition in equity by a wife living separate from her husband, who was the beneficiary under a spendthrift trust, a de cree was made, by the consent of the hus band and in pursuance of an agreement be tween them, directing the trustee to pay to the wife the portions of the Income accord ing to the terms of the agreement. After wards a bill of review was filed by the hus band seeking to annul the decree ; the ap pellate court reversed the decree of the lower court annulling the original decree and rein stated the latter, but upon the ground that the bill of review was not filed for more than two years ; Holloway v. Deposit & Trust Co., 122 Md. 620, 90 AU. 95.
In [1895] A. C. 186, it was regarded as set tled law that one taking a vested legacy is entitled to receive it as soon as he can make a valid discharge although there was a dec laration to accumulate. This appears to be the opposite from a spendthrift trust. In Shelton v. King, 229 U. S. 90, 33 Sup. Ct. 686, 57 L. Ed. 1086, the court refused to fol low this rule. preferring the contrary rule adopted in Clain]) v. Clafiin, 149 Mass. 19, 20 N. E. 454, 3 L. R. A. 370, 14 Am. St. Rep. 393, which sustained a gift to a son at 21 and a like sum at 25 and the residue at 30 years of age. The trust was sustained.
If the cestui que trust is given an absolute right to the fund or its avails (as a right to occupy land and take its income) or if land is conveyed to him on condition that it shall not be subject to his debts, it is not a spend thrift trust ; Kessner v. Phillips, 189 Mo. 515,
88 S. W. 66, 107 Am. St. Rep. 368, 3 Ann. Cas. 1005.
The rule has prevailed in the English courts that when the income of a trust es tate is given to any person (other than a mar ried woman) for life, the equitable estate for life is alienable by, and liable in equity to the debts of, the cestui que trust, and that this quality is so inseparable from the estate that no provision, however express, which does not operate as a cesser or limitation over of the estate itself, can protect it from his debts or control: 18 Yes. 429; 6 Sim. 524 ; 1 Russ. & Myl. 395 ; 9 Hare 475.
Spendthrift trusts, there called amen Lary funds, are upheld in Scotland; Gray, Restr. on Alienation 158. The English rule has been adopted in several courts of this country; Patterson & Co. v. Lawrence, 83 Ga. 703, 10 S. E. 355, 7 L. R. A. 143; Pace•v. Pace, 73 N. C. 119; Heath v. Bishop, 4 Rich. Eq. (S. C.) 46, 55 Am. Dec. 654 ; Dick v. Pitch ford, 21 N. C. 480.
In Arkansas ; Lindsay v. Harrison, 8 Ark. 302; Indiana ; Martin v. Davis, 82 Ind. 38 ; and New Hampshire; Banfield v. Wiggin, 58 N. H. 155 ; the question has been raised, but not decided. Apart from statute, the rule in New Jersey is the same as the English rule ; See Wells v. Ely, 11 N. J. Eq. 172; Bolles v. Trust Co., 27 N. J. Eq. 308; Halstead v. ,Westervelt, 41 N. J. Eq. 100, 3 Atl. 270. In Wisconsin, the question is in doubt. See Bridge v. Ward, 35 Wis. 687 Lamberton v. Pereles, 87 Wis. 449, 58 N. W. 776, 23 L. R. A. 824. In Connecticut, the status of such trusts is undecided ; Leavitt v. Beirne, 21 Conn. 1; Easterly v. Keney, 36 Conn. 18.
By statute, in Kentucky, one cannot vest property or funds in trustees for the use of another without subjecting it to the debts of the cestui que trust; Bland's Adm'r v. Bland, 90 Ky. 400, 14 S. W. 423, 9 L. R. A. 599, 29 Am. St. Rep.. 390; Anderson v. Bris coe, 12 Bush (Ky.) 344. In New York a statute excludes from proceedings in equity to reach beneficial interests, all cases of trusts for maintenance and support where the trust has proceeded from some person other than the debtor, but makes available to the credi tor any surplus beyond what may be neces sary for the maintenance and support of the beneficiary ; Williams v. Thorn, 70 N. Y. 270.
The subject has been regulated by statute in New York ; as interpreted by the courts, the beneficiary of the trust is entitled to re ceive sufficient income to support him in the manner it which he had been brought up, and the residue may be subjected to his debts, the burden being upon the creditors to prove that the trust fund is larger than afterwards proved to be necessary. See an article in 9 Bench & Bar (N. S.) 59, citing Demuth v. Kemp, 79 Misc. Rep. 516, 140 N. Y. Supp. 152 ; id., 159 App. Div. 422, 144 N. Y. Supp. 690. Prof. Gray (Restr. on Aliena tion) speaks of this "remedy" by statute as being, "if not worse, more disgusting than the disease." A spendthrift trust may be created for a term of years with the remainder to the cestui que trust in fee; Ward's Estate, 13 Wkly. Notes Cas. (Pa.) 282.
See Gray, Restr. on Alienation, where the eases are fully considered and a protest made against the validity of such trusts.