# Schwager v. Schwager > Court of Appeals for the Seventh Circuit · February 9, 1940 · 109 F.2d 754 URL: https://www.frixlaw.com/law-library/cases/9641837 ## Case - **Full name:** SCHWAGER Et Al. v. SCHWAGER Et Al. - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** February 9, 1940 - **Citations:** 109 F.2d 754; 1940 U.S. App. LEXIS 3995 - **Precedential status:** Published - **Opinion:** Dissent by Evans - **Judges:** Evans, Sparks, Major - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641837 ## Opinion text EVANS, Circuit Judge (dissenting). Admittedly it would not be difficult for me to reconcile myself to an approval of the majority opinion, if I conceived my duty to be limited to ascertaining and following the state court decisions which have spoken on the non-liability of spendthrift trusts for claims of deserted wives and neglected children and applying that majority rule to a trust arising in Wisconsin which has not yet spoken on the subject.' In fact, affirmance would be unavoidable. Plaintiffs rely for their support largely upon the Restatement of the Law of Trusts, .vol. 1, § 157, where it is said: “Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary, “(a) by the wife or child of the beneficiary for support, or by the wife for alimony; * * The majority opinion herein, rather conclusively establishes that this restatement of the law is incorrect. In other words, in the states which have spoken, a spendthrift trust is not subject to the alimony claims of a divorced wife or for the support of dependent children for whose care the court has directed the spendthrift to make payment, unless from the language of the trust or from the reasonable inferences to be drawn therefrom, the court finds it was the fair intendment of the’settlor to so charge the trust. In other cases, namely, where the settlor either negatives an intention to charge the trust with alimony and children’s support claims, or when no intent of any kind in respect to the matter is inferable, the trust is not to be subjected to such claims. This should, and would, settle the matter as the majority opinion holds but for the fact that I am unable to satisfy myself that the number of state court opinions is sufficiently large and sufficiently persuasive as to make applicable the rule of stare decisis. Moreover, the reasons for a contrary conclusion are far more persuasive. First, as to the weight of authority. Not one in five states of the Union has ruled on this question. If my study is correct, only nine states have spoken through their^ Appellate Courts. *† Two states have statutes on the subject. Where statutes have been enacted, regardless of the court decisions, they express a policy which denies to the settlor of a spendthrift trust the right to exclude a wife’s or children’s claims for support. The existence of such statutes at *762 least indicates in which direction public policy is pointing. We are here endeavoring to state the law of Wisconsin, which has not spoken a word directly on this subject either through its legislature ** or its courts. Should we, or must we, then find that this Wisconsin trust is free of these claims because the state of X has so ruled? If only one state has spoken, or even if five have so spoken, should we fall into line because of the doctrine of stare decisis? Is this rule so controlling that honest differences. of opinion must be abandoned so that harmony of decisions on a question of public policy may obtain ? Nor can it be said that there is unanimity of opinion. In many cases the holdings are not unequivocal. The question is evidently a debatable one. Not only does the restatement of the law, which surely has weighty support, coming from such a worthy group of students of the law, deny the law to be as stated by the few courts that have spoken, but I find like expressions from other respectable authority. The note in 104 A.L.R. 779, at page 781 states: “In a number of the more recent decisions it has been held that the income from a spendthrift trust is liable for alimony due the divorced wife of the beneficiary * * * “The income from spendthrift trusts has, in most recent cases where the question has arisen, been held to be subject to a claim for maintenance of the wife and children of the beneficiary.” The conclusion of the commentary in the case note appearing in 35 Yale Law Journal, page 1025, is “Therefore, while the instant case is undoubtedly in accord with precedent on the particular issue, a contrary view might seem so be justified by the policy which in other situations has taken alimony out of the category of mere debts.” See also Griswold, Spendthrift Trusts, §§ 333-350; 34 Michigan Law Review, 1269; 35 A.L.R. 1035 ; 52 A.L.R. 1259 . Griswold in his work on “Spendthrift Trusts,” Section 339 discusses the claim of alimony against a spendthrift trust. He says: “The right of a wife to reach the interest of a beneficiary of a spendthrift or discretionary trust to satisfy a judgment for alimony has been presented to the courts several times, with varying results. The question, of course, is closely related to the wife’s right to reach the interest for support, but it has been treated more or less distinctly. It is sometimes asserted that alimony is not a debt, but is simply a substitute for the wife’s right to support. Other cases, however, have said, that alimony is a debt, and that the wife stands no better than any other creditor. “In Pennsylvania, it was early held a wife could not reach the beneficiary’s interest to enforce a judgment for alimony, and the same result has been reached concerning discretionary trusts in Iowa and New Hampshire. In New York, however, the wife may reach the interest of the beneficiary; and though her legal standing may not be better than that of any other creditor, yet in practice she seems to be more successful. In Illinois, it has been held that the beneficiary’s interest may be reached in satisfaction of a judgment for alimony, in spite of the complete statutory restriction against the rights of creditors. * * * “(Sec. 340) Further support for the conclusion that the wife may reach such an interest in satisfaction of a judgment for alimony is found in cases allowing recovery for claims of this sort out of funds received by the husband as veteran’s compensation, which by federal statute are exempt from the claims of creditors. It is also generally held that the usual statutory exemptions from execution do not apply to proceedings to enforce the payment of alimony or support. Cases such as these would seem to form a very strong basis for the conclusion that interests in a spendthrift trust should not be exempt from claims of this sort. The fiat of the settlor should not be able to create an exemption more potent than the legislature of the state itself has established against the wife’s claim.” These quotations and citations do not of course outweigh judicial decisions in the states where the courts have spoken. Moreover, the force of the restatement of the law quotation may well be challenged on the ground that such opinion was not writ *763 ten as an expression of that body’s views on this question but merely as an attempted statement of what it believed the holdings of the courts which have spoken, to be. All of this criticism I readily accept. They are well taken exceptions to these authorities. Nevertheless these quotations strike me as proof, and, somewhat persuasive evidence, too, of a difference of opinion on this phase of spendthrift trusts which has, as yet, not been widely discussed or adjudicated. Nor have the judicial opinions which have been found and analyzed held so consistently for the defendant. It is significant that the Illinois courts have rather uniformly held such trusts subject to alimony claims. Certainly Keller v. Keller, 284 Ill.App. 198 , 1 N.E.2d 773 , and Tuttle v. Gunderson, 254 Ill.App. 552 , do not hold that spendthrift trusts are not liable for alimony and children’s support money even when the settlor has expressly excluded them from protection. These cases do not pass on such a fact situation. All that can be claimed for them is that they held the trust liable for alimony and children’s support claims, and with more facility than logic declared.that the language of the trust indicated an intention on settlor’s part to so charge the trust. It was seemingly easier to so construe the terms of the trust than to tackle the legal question arising in a case wherein the settlor either made no mention of an alimony claim or expressly excluded it from protection. And so I find myself — endeavoring to state the law of Wisconsin — without a Wisconsin decision to guide me, but enlightened by the views of courts and text writers who are not in accord. Approaching the question unaided by judicial views or text authorities, what should be the decision? Assuming Wisconsin— thus far a stranger to spendthrifts or at least to spendthrift trusts (though probably not a stranger to alimony and methods commonly and uncommonly adopted to avoid or evade alimony payments) — was to approach the question unvexed by precedents, harmonious or conflicting, judicial or legislative, what would be its approach to the question? What its answer? A spendthrift trust is a trust for the support and care of one who is a spendthrift. It may be said to be a kind of a substitute for a guardianship. • On the theory that the settlor who has the money to give, may do as she pleasfes with it, the argument is advanced that she may create a trust which will be immune from successful attack by dreditors of the designated beneficiary. In states where these trusts have arisen for enforcement, it has been held that such a scheme which provides for the avoidance of a spendthrift’s debts is not contrary to public policy. But the matter of public policy takes on real importance when such a trust is created by a prejudice bearing settlor who excluded the dependent neglected children from its protection. Without elaborating on the reasons which impel the conclusion which I reach, it would seem not unlikely that the various states (including Wisconsin) which have not spoken, may, in the light of the difference of opinion (not limited to judicial opinion), refuse to sanction a scheme whereby a spendthrift may live in comfort (or even luxury) and flout the obligations which he owes to the children he brought into existence or to a society which today humanely assumes a keen interest in their welfare as well as in the wife who has been deserted. It is not at all unlikely that the courts of the states which have not spoken may conclude that a provision of a spendthrift trust, which exempts the trust from the claims of alimony and children’s support, is against publiq policy. At least 'until more states have definitely and squarely so held, I do not feel bound by any doctrine of stare decisis. When Wisconsin courts have spoken this court must and will accept and apply its decisions as the controlling law of that state. Until it has finally announced its law, we are free to adopt that view which accords with our ideas of right and justice. The argument in favor of holding the trust’s exclusion of wife’s alimony and children’s support money void, as against public policy, in my opinion greatly outweighs the settlor’s right to dispose of her property as she sees fit uninfluenced and uncontrolled by familial obligations. Entertaining such views, I cannot, in the present state of Wisconsin law, give support to the conclusion expressed in the majority opinion. Cases in the various states passing’ upon the right to payment of alimony or support for children from a spendthrift trust of which the husband and father is beneficiary. California: Canfield v. Security First Nat. Bank, Cal.App., 77 P.2d 866 , divorced wife permitted to recover surplus of spendthrift trust. Illinois: England v. England, 223 Ill. App. 549 , permitted recovery of alimony; Tuttle v. Gunderson, 254 Ill.App. 552 , permitted recovery. Iowa: De Rousse v. Williams, 181 Iowa 379 , 164 N.W. 896 . Massachusetts: Bucknam v. Bucknam, Mass., 200 N.E. 918 , 104 A.L.R. 774 , denied recovery for alimony and child’s support; Burrage v. Bucknam, Mass., 16 N.E.2d 705 , divorced wife and child denied recovery. Michigan: Gilkey v. Gilkey, 162 Mich. 664 , 127 N.W. 715 . Minnesota: Erickson v. Erickson, 197 Minn. 71 , 266 N.W. 161 , 267 N.W. 426 , says settlor’s intention should control. New Hampshire: Eaton v. Eaton, 82 N.H. 216 , 132 A. 10 ; Id., 81 N.H. 275 , 125 A. 433 , 35 A.L.R. 1034 , denied wife’s alimony; allowed children’s support; Fowler v. Hancock, 89 N.H. 301 , 197 A. 715 , held in discretion of trustee to support beneficiary’s children. New York: Fink v. Fink, 139 Misc. 630 , 248 N.Y.S. 129 , recovery against surplus; Pruyn v. Sears, 96 Misc. 200 , 161 N.Y.S. 58 ; Sand v. Beach, 270 N. Y. 281 , 200 N.E. 821 ; Wetmore v. Wetmore, 149 N.Y. 520 , 44 N.E. 169 , 33 L.R.A. 708 , 52 Am.St.Rep. 752 . Pennsylvania: In re Moorehead’s Estate, 289 Pa. 542 , 137 A. 802 , 52 A.L.R. 1251 , permits recovery; Thackara v. Mintzer, 100 Pa. 151 , denied recovery; Thomas v. Thomas, 112 Pa.Super. 578 , 172 A. 36 , permitted recovery. † Washington: Knettle v. Knettle, 197 Wash. 225 , 84 P.2d 996 , § 157 of the Restatement of the Law of Trusts cited in obiter with approval. Wisconsin took its statutes on Uses and Trusts from New York. They nowhere mention spendthrift trusts, as such. It may be, Wisconsin will adopt New York decisions respecting applicability of general statutory provisions to spendthrift trusts. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641837. Public record. Not legal advice.