erty are turned over to the daughter the title shall vest absolutely in her. Now, the cardinal rule of construction applied to wills is to ascertain and give effect to the intention of the testator. If that intention can be gathered from the instrument it will always be carried into effect, unless to do so would violate some rule of law. Construing the clauses of the will together, there can be no doubt as to the testator's intention. It is clear that he did not intend that the daughter should have the property in question, nor the control or management of it, until the trustees, in their discretion, should see fit to give it to her. The provisions for the daughter show that the testator did not intend to give her title or possession of the property. If she held title, she might convey or incumber the real estate, or dispose of the personalty, and thus put it out of the power of the trustees to execute the trust. The very fact that they were required to take possession of the property, collect rents, and invest the funds, and pay over, from time to time, to the daughter, so much of the income as was necessary for her support, comfort, and education, implies that the interest of the trustees in the estate should be something more than mere control of it, subject to the will of the daughter. If, as the plaintiff contends, the will makes the daughter the absolute owner of the property, thereby vesting in her the absolute right of disposal of it at any time she sees fit, then is the intention of the testator set aside, and he might as well have given it all to her absolutely, without creating any trusteeship, 617 because his provision therefor could be rendered ineffective at any moment the daughter saw fit to exercise her right of disposal of the property. In other words, the only way effect can be given to the manifest intent of the testator is to hold that the will creates a trust, and that the trustees take the legal title for the use and purposes provided in the will.

It is true that, in terms, the property in the case at bar is not bequeathed or devised to the trustees, nor need it be in order for them to take title. Where trustees are named in a will the law looks to see what powers are conferred upon them, what duties are required of them, and presumes that it was the testator's intention to give them such an estate as will enable them to execute the powers given, and perform the duties required: Webster v. Cooper, 14 How. 499. And it has been held "that, though no trust is declared in express terms, nor even mentioned, still the intention of the

donor to create the trust, and the existence of the trust itself, may be necessarily inferred from the powers and authority given to the grantee; and in case of wills, even where no estate is directly devised to the executors, but the whole estate is apparently given to the beneficiaries, the trust may be necessarily inferred from the powers and authority conferred upon the executors, and thus, from a construction of the entire will, the intention may be shown that the executors are to take the legal title as trustees of an express active trust ": 2 Pomeroy's Equity Jurisprudence, sec. 1011; Tobias v. Ketchum, 32 N. Y. 327. A well-known exception to the rule prohibiting restraints upon the alienation of property, legal or equitable, is where a trust is "so created that no interest vests in the cestui que trust; consequently, such interest cannot be alienated; as, where property is given to trustees to be applied, in their discretion, to the use of a third person, no interest goes to the third person until the trustees have exercised 618 this discretion. So, if property is given to trustees to be applied by them to the support of the cestui que trust and his family, or to be paid over to the cestui que trust for the support of himself and the education and maintenance of his children. In short, if a trust is created for a specific purpose, and is so limited that it is not repugnant to the rule against perpetuities, and is in other respects legal, neither the trustees nor the cestui que trust, nor his creditors or assignees, can divert the property from the appointed purpose. Any conveyance, whether by operation of law or by the act of any of the parties, which disappoints the purposes of the settler by diverting the property or the income from the purposes named, would be a breach of the trust ": 1 Perry on Trusts, sec. 386 a; Rife v. Geyer, 59 Pa. St. 396; 98 Am. Dec. 351; Barnes v. Dow, 59 Vt. 530. The case at bar, in our judgment, comes within this exception. In Barnes v. Dow, 59 Vt. 530, the testator devised all his estate to his nephew, excepting the support of his sister during his lifetime. He then gave his estate in trust to his executor, and gave to the sister a support out of the estate during her life, and the remainder after the termination of the trust to the nephew. The court held that, to carry out the intention of the testator, the legal estate must be held to be in the executors in trust. It said: "If it appears from the will that it was the intent of the testator that the beneficiary should have nothing that she could dispose of, it will be as effectual

to protect the trust as if there was an express clause against alienation": Keyser v. Mitchell, 67 Pa. St. 473; Perkins v. Hays, 3 Gray, 405.

2. The next question that arises is, Is the will, as thus construed, void, as in contravention of our statute against perpetuities? That statute reads: "Every disposition of property is void which suspends the absolute power of 619 controlling the same for a longer period than during the lives of persons then in being, and for twenty-one years thereafter": Code, sec. 1920. Under our law the word "property," used in the statute, includes personal as well as real property: Code, sec. 45, subd. 10. It may be conceded that the rule of law is "inflexible that every limitation is void unless it takes effect ex necessitate, and in all possible contingencies within the prescribed period": Sears v. Putnam, 102 Mass. 5; Dana v. Murray, 122 N. Y. 604. Suppose the conditions upon which the trustees are under the will authorized to transfer this property to the cestui que trust do not appear to them to exist during the lifetime of the latter. What, then, becomes of the estate? The testator has made no absolute provisions for such a contingency. He has not, in terms, provided in whom the estate shall vest in the supposed case. Clearly, the death of the cestui que trust before the transfer of the estate to her would terminate the trust, and the estate so held by the trustees would pass to the heirs of the cestui que trust. The whole will shows an intent on the part of the testator to dispose of all his estate. Under our construction of this will the legal title is given to the trustees, and they are vested with certain powers and charged with the execution of certain duties relating to the property, but this legal title is held for the cestui que trust, to be transferred to her upon certain contingencies. If the legal title still rested in the trustees at the death of the cestui que trust, then at her death both titles would merge and the estate pass to her heirs: See Toner v. Collins, 67 Iowa, 375; 56 Am. Rep. 346. If this be so, then the will is not open to the objection that the estate-the legal title-may not vest within the time fixed by the statute, as, if not vested by the trustees in the cestui que trust during her lifetime, in any event it would vest in the heirs of the cestui que trust at her death.

620 3. We have, then, an estate, the legal title to which is in the trustees, and the equitable in the cestui que trust; and the question arises, Has the cestui que trust such an interest in the

property, under the terms of the will, as that the trustee can be made liable for her debts, as garnishee? We think the trustee cannot be held liable. If creditors of the cestui que trust may thus reach the property itself, or its income or increase, it must of necessity follow that, if their claims are large enough, the whole estate might be taken, and the purpose and object of the testator in creating the trust be defeated. The trust could not be executed, as the trustees would be deprived of the means of carrying out the testator's intention. It is certain that the testator endeavored to provide against just such an emergency as has arisen in this case. He intended to place the property and its income beyond the reach of the cestui que trust to squander. This he had a perfect right to do. He was disposing of his bounty without any valuable consideration, and we know of no rule of public policy or sound morals being violated by a proper attempt to provide against the misfortune or improvidence of the object of his bounty. No creditor can complain, as it could hardly be claimed that credit was, in such a case, extended on the faith of property held by the cestui que trust, when the legal title was not in her. As was well said by Morton, C. J., in Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504: "Under our system creditors may reach all the property of the debtor not exempt by law, but they cannot enlarge the gift of the founder of a trust, and take more than he has given." This language was used in a case where property was conveyed in trust, with a condition that the income should not be alienated by the beneficiary by anticipation, or be subject to be taken by his creditors, although there was no limitation over of the estate on the happening of such 621 an event. Justice Miller, in Nichols v. Eaton, 91 U. S. 716, said: "No case is cited, none is known to us, which goes so far as to hold that an absolute discretion in the trustee-a discretion which, by the express language of the will, he is under no obligation to exercise in favor of the bankrupt-confers such an interest on the latter that he or his assignee in bankruptcy can successfully assert it in a court of equity, or any other court." The doctrine announced is fully supported by the authorities: Rife v. Geyer, 59 Pa. St. 393; 98 Am. Dec. 351; White v. White, 30 Vt. 338; Leavitt v. Breirne, 21 Conn. 1; Pope v. Elliott, 8 B. Mon. 56; Smithy. Towers, 69 Md. 77; 9 Am. St. Rep. 398; Barnes v. Dow, 59 Vt. 530; Beck's Estate, 133 Pa. St. 51; 19

Am. St. Rep. 623; Drake on Attachment, sec. 454. It is the settled rule of law that the creditor's situation with reference to the fund is the same as Ada Blanche Wilde's would be if she was suing the trustees; that is, the creditor has no better right to it, as against the trustees, than the beneficiary has. Tested by this rule, how can it be successfully claimed that the creditor can hold the garnishee liable? Mrs. Briggs could not maintain an action against the trustees for any part of this property. They are clothed with a certain discretion, vested in them by the terms of the will; and certainly no court would, under such circumstances, compel the trustees, while the trust was alive, to violate its terms, and convey or turn over the property to the beneficiary. Nothing is due the cestui que trust. The trustees have not as yet, under the discretion vested in them, seen fit to turn over the property to her. That discretion, wisely, as we think, vested in the trustees, cannot ordinarily be controlled by the courts. To hold this trustee subject to plaintiff's garnishment is to subvert the very purposes of the trust, and invade the domain where the testator's will, being in conformity to the law, is supreme. 622 The testator was not compelled to so dispose of his estate to his daughter as that creditors might reap the benefits of it, instead of its being preserved to the object of his bounty. They are presumed to know the contents and legal effect of the will, and it can not for a moment be conceded that they were misled into extending credit under a well-founded belief that Mrs. Briggs held the legal title to the property. As the right of the cestui que trust, against the trustee, to recover the property is the measure of the rights of the creditor as against the property in the hands of the garnishee, and as the cestui que trust has no right to the property which she can enforce, it follows that the action of the court below was proper, and its judgment is affirmed.

WILLS-TRUSTS-ALIENATION OF PROPERTY BY BENEFICIARY.-A devise of a beneficial life estate, so as to secure its enjoyment to the beneficiary, without making it alienable by him, or subject to the claims of his creditors, will be respected by the courts of Maryland: Smith v. Tower, 69 Md. 77; 9 Am. St. Rep. 398, and extended note. See, also, the extended note to Doggett v. Hart, 58 Am. Dec. 474, where the question is discussed as to when the legal title vests in the cestui que trust.

TRUSTS-CREATION-NECESSITY FOR DECLARATION OF INTENTION.-The intention of a testator to create a trust must be apparent from the face of his will: Boyle v. Boyle, 152 Pa. St. 108; 34 Am. St. Rep. 629; Estate of