The opinion
TEMPLE, J., dissenting.
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 property of all to the satisfaction of their ohligations. Such trusts enable one by his own act to make property exempt from execution, and violate our ideas of equality and fair play. If there is a conflict in the authorities and we are free to choose, I think the English rule by far most conformable to justice and good policy.
I think, also, that the opinion is at variance with the very recent decision in the matter of the Estate of Cavarly, 119 Cal. 406 .
Rehearing denied.