Patterson v. Caldwell , 124 Pa. 455 ( 1889 )

Opinion,

Me. Justice McCollum :

If Mrs. Lynde has a vested interest in the principal of the estate of her father this attachment can be sustained; if she has not, it must fall.

Her interest in' the estate is defined by Iris will. It secures to her a share of the net income of the estate for a period designated in it. By its terms it creates an inalienable personal provision for her, which cannot be anticipated, pledged, or assigned, or made liable by legal proceedings for her debts, engagements, or contracts. It constitutes a spendthrift trust, and it is conceded that the income thus secured to her is not within the grasp of this attachment.

But it is claimed that she has an interest in the principal of the estate which may be attached and appropriated to the payment of her debts. The will appoints a time for the distribution and vesting of the principal of the estate. The persons who are then the recipients of the income of it will take it absolutely. But it is impossible to determine now who will at that time be entitled to receive the income and constitute the beneficiaries under the provisions of the will which dispose of the principal. We think, therefore, that Mrs. Lynde’s interest in the principal of the estate is contingent. These conclusions result from a consideration of the whole will and are in accord with the manifest intention of the testator. It is quite evident that it was not lfis purpose to subject the principal of his estate to seizure and sale for the debts of his children and grandchildren, while he carefully placed the income of it beyond the reach of their creditors!

Reed’s App., 118 Pa. 215, is relied on by defendants in error as sustaining their view that Mrs. Lynde has a vested interest in the principal of the estate. In that case the testator, having nine grandchildren, directed his executors to sell a certain portion of his farm, to divide the net proceeds of the sale into nine equal parts, and for the period of twelve years from the time of Ms decease to keep said net proceeds at interest and pay one-ninth of the interest annually to each of said grandchildren, “ or, if any of them have died leaving hems, then pay the same to said heirs and at the full expiration of twelve years from my decease shall in like manner pay over the principal.” In determining that the legacies to the grandchildren were vested at the death of the testator, it was said, inter alia, “ It is to be noted that there is not in this will the faintest trace of an intent in case of the death of any of the grandchildren before the expiration of the twelve years to give the shares of those so dying to the survivors. The share of a grandchild that shall ‘have died,’ is to go to his heirs.” But in our case, if Mrs. Lynde dies before the period appointed for the vesting of the estate, what she might have received had she survived that period, goes, not to her heirs, but, at a time fixed by the will, to persons designated by the null to receive it.

It is further contended by the defendants in error, that whatever may pass by an assignment is subject to attachment. This proposition is not tenable. In law an assignment is not effectual unless the subject matter of it has actual, potential existence. But equity will uphold assignments of contingent interests and expectancies, and things resting in mere possibility, if fairly made, and not against public policy; not as a transfer operating in prresenti, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse: Power’s App., 63 Pa. 443; East Lewisburg L. & M. Co. v. Marsh, 91 Pa. 96.

These assignments are enforced on the ground that the assignee is entitled to have immediate specific performance of the contract to assign, as soon as the property comes into existence in the hands of the assignor: Bispham’s Eq., 215. An attachment execution reaches effects and interests that cannot be ' taken on a writ of fieri facias, but it is execution process and its office is to appropriate the property of the defendant to the judgment which supports it. That which has a present and certain existence although its possession and enjoyment may be postponed for a time, may be seized by it, but it cannot grasp expectancies or contingent interests. The consequences of a contrary doctrine are well described by Mr. Justice Gke:en in Day v. New England Life Ins. Co., Ill Pa. 507. The first specification is sustained and this makes a discussion of the second unnecessary.

Judgment reversed.