HENDERSON, J., delivered the opinion of the Court.
Mary Anna Robertson, obtained a divorce a vinculo from her husband, John L. Robertson, Jr., in the Circuit Court of Baltimore City, on April 6, 1938. The decree ordered the defendant to pay the complainant $53 per month as "permanent alimony * * *, subject to the further order of this court in the premises." Subsequently, he took up his residence in New York and allowed the alimony payments to fall in arrears. On June 17, 1948, she filed a petition for judgment on the award and obtained an order to show cause, which appears from the docket entries to have been served on the defendant. Upon petition of the defendant, the time for showing cause was extended, but the defendant did not do so, and thereafter his solicitor struck out his appearance. On August 6, 1948, she obtained an order reducing the arrears to judgment in the amount of $4,229, and an attachment was laid in the hands of the appellant on October 8, 1948. The garnishee filed a motion to quash, reciting that the only assets in its hands consisted of accrued income payable to John L. Robertson, Jr., under valid spendthrift trusts created by the will of his father, John L. Robertson, Sr., and the will and a deed of trust of his mother, Lily D. Robertson.
The provison in the will of John L. Robertson, Sr., who died in 1937, was that "all payments are to be made into the hands of the beneficiaries direct and not into the hands of others, whether claiming by their authority
The provision in the deed of trust, executed by Lily D. Robertson in 1941, was that: "All payments hereunder (whether of income or principal) are to be made into the hands of the respective beneficiaries direct and not into the hands of others, whether claiming by their authority or otherwise, without power of anticipation and without being subject to execution or attachment; this provision, however, not to prevent payments to any guardian or committee of any beneficiary, nor to limit any discretionary powers lodged in said trustee in regard to expenditures out of principal or otherwise under this instrument nor to prevent the deposit of funds payable to beneficiaries to their credit in any bank or other financial institution, nor to prevent the discretionary application by the trustee of any funds due to or authorized in respect to any ill, minor or otherwise incapacitated beneficiary, to his or her support, maintenance, education and care, nor in any otherwise to limit or restrict any discretionary powers lodged in said trustee under the provisions of this instrument." An identical provision was incorporated in the will of Mrs. Robertson, executed in 1939, which became effective upon her death in 1947. In none of these instruments was there any direct reference to Mary Anna Robertson, as a beneficiary or otherwise.
The chancellor overruled the motion to quash, and signed an order directing the garnishee to bring into court all the funds due the judgment debtor and pay the
The chief question presented is to what extent, if any, the rule prohibiting attachment in the case of spendthrift trusts is relaxed when the claim is for alimony. A subsidiary question relates to the form of the relief granted by the chancellor's decree.
The appellant relies strongly upon the case of Bauernschmidt v. Safe Deposit and Trust Company, 176 Md. 351, 354, 4 A.2d 712. In that case Mrs. Bauernschmidt obtained a divorce from her husband in California, and a decree for separate maintenance pursuant to an agreement between the parties. She brought a non-resident attachment proceeding here to recover arrears out of the income due him under two spendthrift trusts. The plaintiff, invoking the rule of comity, argued that in California an award based on an agreement was nevertheless considered to be alimony, citing Miller v. Superior Court, 9 Cal.2d 733, 72 P.2d 868, although in Canfield v. Security First National Bank, 8 Cal.App.2d 277, 48 P.2d 133, earlier cases, it was held that the income from a spendthrift trust was not attachable on such a claim, apart from statute. Judge Sloan, speaking for this court, said [176 Md. 351, 4 A. 713]: "The plaintiff comes into Maryland and asks this court to do two things, one, to recognize
Since the court found it unnecessary to discuss the rights of the wife of a spendthrift cestui que trust, the determination of that question was left open. We think the court did not mean to indicate, in the sentence last quoted, that attachment for contempt would be the only remedy, but merely that it would be an equally efficacious one, if the court had jurisdiction of the person charged with payment of alimony. In any event, the statement could not be regarded as more than a dictum. The holding of the court was that a wife's claim based upon an agreement stands upon no higher footing than that of any other creditor.
The validity of spendthrift trusts was established in this state in Smith v. Towers, 69 Md. 77, 14 A. 497, 15 A. 92, 9 Am. St. Rep. 398, over the vigorous dissent of Chief Judge Alvey. It was conceded that the English authorities took the other view, and that the English
In Mercantile Trust Co. v. Hofferbert, D.C., 58 F.Supp. 701, 704, Judge Chesnut, after reviewing the Maryland authorities, held that income payable to a beneficiary under a spendthrift trust was subject to a claim of the United States for income taxes due by the beneficiary. He said: "In some of the States where the spendthrift trust is held valid as against creditors, the income of
`(a) by the wife or child of the beneficiary for support, or by the wife for alimony;
`(b) for necessary services rendered to the beneficiary or necessary supplies furnished to him;
`(c) for services rendered and materials furnished which preserve or benefit the interest of the beneficiary.' See also Griswold, Spendthrift Trusts, c. 5, p. 289; Scott on Trusts, vol. 1, § 157."
In 1 Scott, Trusts, § 157.1, it is said: "Even though ordinary contract creditors cannot reach the interest of the beneficiary of a spendthrift trust, it has been held in a number of cases that his interest can be reached by his wife or children to enforce their claims against him for support. There are several grounds on which this result has been reached.
"In the first place, it has been held in a number of cases that a provision in the terms of the trust that the interest of the beneficiary should not be subject to the claims of creditors was not intended to apply to dependents of the beneficiary. They are not `creditors' of the beneficiary, and the liability of the beneficiary to support them is not a debt. Where the trust is created for the support of the beneficiary, it has been held that the fact that he has dependents is to be taken into consideration in determining the amount to which he is entitled under the trust, that the support of a person includes the support of those whom it is his duty to support. There have been suggestions also that his dependents are entitled
"Even though it is clear that the settlor intended to exclude the beneficiary's wife and children from enforcing their claims for support against his interest in the trust, it has been held in some cases that they are not thereby precluded from reaching the trust estate. This result has been reached on the ground that it is against public policy to permit the beneficiary to have the enjoyment of the income from the trust while he refuses to support his dependents whom it is his duty to support. The claim of a wife and dependent children to support is based upon the clearest grounds of public policy. They are in quite a different position from ordinary creditors who have voluntarily extended credit. It would be shocking indeed to permit a husband to receive and enjoy the whole of the income from a large trust fund and to make no provision for his needy dependents * * *."
Similar views are expressed in Griswold, Spendthrift Trusts, § 339; 1 Bogert, Trusts and Trustees, § 223; and 1 Glenn, Fraudulent Conveyances, Rev. Ed., § 189a.
An examination of the cases on the subject shows a wide divergence of opinion. One of the leading cases, cited by appellee, In re Moorehead's Estate, 289 Pa. 542, 137 A. 802, 52 A.L.R. 1251, was followed in Re Stewart's Estate, 334 Pa. 356, 5 A.2d 910, with the assertion that a statute, adopted in that state, merely afforded an additional remedy. However, in Lippincott v. Lippincott, 349 Pa. 501, 37 A.2d 741, the court refused to apply the rule to alimony awarded in a decree of absolute divorce, and seems to have confined the holding in the Moorehead case to the claim of a deserted wife. See note 51 Dickinson Law Review 1. The present Pennsylvania Statute seems to be broader. 20 P.S. § 301.12. In New York, Missouri, Kentucky and a number of other states the matter is controlled by statute. Several states
As we have indicated, the question is an open one in this State. We think the view expressed in the Restatement is sound. The reason for the rejection of the common law rule, that a condition restraining alienation by the beneficiary is repugnant to the nature of the estate granted, was simply that persons extending credit to the beneficiary on a voluntary basis are chargeable with notice of the conditions set forth in the instrument. Smith v. Towers, supra. This reasoning is inapplicable to a claim for alimony which, in Maryland at least, is "an award made by the court for food, clothing, habitation and other necessaries for the maintenance of the wife * * *." Dougherty v. Dougherty, 187 Md. 21, 23, 32, 48 A.2d 451, 457. The obligation continues during the joint lives of the parties, and is a duty, not a debt. "If there are any installments of alimony unpaid in his lifetime, payment may be enforced by contempt, or by execution (Code, Art. 9, § 29, article 16, § 211) in the manner pointed out in Marshall v. Marshall, 164 Md. 107,
It has been suggested by Scott, upon limitations in some of the cases cited, that there is perhaps an intermediate view, whereby the dependents of a spendthrift beneficiary can reach only so much of the income as may appear reasonable to the court having control over the administration of the trust. This view seems to be based upon the proposition that if the wife is allowed the full amount of her claim the beneficiary may be left destitute. We think that danger is remote, because in Maryland at least, an alimony decree is always open to revision in the light of changed circumstances or conditions. Knabe v. Knabe, 176 Md. 606, 616, 6 A.2d 366, 124 A.L.R. 1317.
We think the action of the chancellor in overruling the motion to quash was correct, but, in view of what we have said, we see no occasion for impounding the fund with the Clerk of the Court, upon default of the defendant to appear and subject himself to imprisonment for contempt. We think the appellee is entitled to a judgment of condemnation, upon disclosure of the amount of assets held by the trustee, according to the regular course of procedure in attachment on judgment. The
Order affirmed in part and reversed in part and case remanded for further proceedings. Cost to be paid out of the fund.