# Wunsch v. Burlington State Bank > Court of Appeals of Texas · November 22, 1922 · 248 S.W. 135 URL: https://www.frixlaw.com/law-library/cases/9827778 ## Case - **Full name:** WUNSCH v. BURLINGTON STATE BANK Et Al. - **Court:** Court of Appeals of Texas - **Decided:** November 22, 1922 - **Citations:** 248 S.W. 135 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Jenkins - **Cited by:** 1 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/9827778 ## Opinion text On Motion for Rehearing. Appellant asserts that, in our holding to the effect that he had no interest in the issue involved on this appeal, we have overruled our opinions in the cases of Lindsey v. Rose, 175 S. W. 829 , and Hoffman v. Rose, 217 S. W. 424 . Those cases differed from the instant case in the following particulars: 1. The right of the trustee to maintain the suit or to prosecute an appeal therefrom was not called in question in either of those cases. Lindsey v. Rose was an agreed case under the statute, the issue being: “Whether or not any of said real estate of the said Peter McClelland, Sr., or any of the funds arising therefrom or rent or profits in the hands of said defendant, John, IC Rose, trustee, is subject, either in law or in equity, to the debts of Peter McClelland, Jr.” We construed the will of Peter McClelland, Sr., as it had formerly been construed by this court, to constitute a spendthrift trust, which according to the American doctrinéis: “That it is lawful for a testator or grantor to create a trust estate for the life of the cestui que trust, with the provision that the latter shall receive and enjoy the avails at times and in amounts either fixed by the instrument or left to the discretion of the trustee, and that such avails shall not be subject to alienation by, the beneficiary nor liable for his debts.” In other words, we held, in accordance with numerous decisions in reference to spendthi-ift trusts, that Peter McClelland, Jr., had no interest, legal or equitable, in the estate devised, and consequently he had nothing upon which execution could be levied. We further held ■ that the legal and equitable title was vested in the trustee during the continuance of such trust; such being the case, the sale of the property under execution or order of sale would have clouded the title of the trustee. Not only this, but we held that the manifest purpose of Peter Mc-Clelland, Sr., as evidenced by his will, was that Peter McClelland, Jr., should not be able to squander any portion of the estate other than that paid over to him from time to time by the trustees. Such being the case, he evidently could not have sold his interest in the estate nor mortgaged the same, for the reason that he had no interest. But, if he should have been permitted to incur debts, and his creditors had been allowed to obtain judgments against the same, and levy execution upion the property held in trust, this would have accomplisheu indirectly what the will clearly forbid to be done directly. *139 Tlie case of Hoffman v. Rose followed tie decision in Lindsey v. Rose, and further held that a creditor of Peter McClelland, Jr., had no right to sell the property held t>y the trustee under execution, notwithstanding the fact that he did not propose to interfere with the administration of the estate in the hands of the trustee during the life of the trust. This was immaterial, for the reasons above stated; that is, that Peter McClelland, Jr., had nothing to sell under execution or otherwise, and that to permit his creditors to sell the property held by the trustee would, in effect, allow Peter McClelland, Jr., to squander the estate, even though the possession of the trustee was not interfered with. 2. In the cases referred to, what was attempted to be sold was the interest of Peter McClelland, Jr., the cestui que trust. In the instant case, there was no attempt to sell the interest of Katie Wunsch, the cestui que trust. In the two cases above referred to, the remainder was clearly a contingent remainder. In the instant case, the trial court held that the remainder was a vested remainder in I. B. Wunsch, upon the grounds, we presume, that the will itself named the party who would take the remainder after the death of Katie Wunsch, an event that was certain to occur, and the remainderman being made certain by the terms of the will. Inasmuch as no one was injuriously affected by this holding of the trial court, except I. B. Wunsch, and, as he did not appeal from the judgment, we decline to decide the issue as to whether the interest of I. B. Wunsch was • a contingent or a vested remainder. We think it a good practice for an appellate court, where a case is affirmed, not to decide any issue which is merely academic in so far as the appellant is concerned. If I. B. Wunsch had desired this issue to be decided, he should have appealed from the judgment of the trial court. The appellant herein has no interest in that issue. The motion for rehearing is overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9827778. Public record. Not legal advice.