STUCKERT, to the use of his assignees v. HARVEY, 1 Miles 247

The opinion of the Court was delivered by Pettit, President. The interest of David Stuckert. in the property in dispute, was vested as soon as the will of Susanna Stuckert took effect. The words, “ all his estate, real and personal,” used in his assignment, were broad enough to cover it; and the question is thus presented, does the clause in the said will, “ without the control of any person or persons whomsoever, and without being subject or liable to their debts, contracts or engagements,” prevent, the said interest from passing under the deed for the benefit of creditors.

The authorities cited on behalf of the defendant do not apply. So far as David Stuckert. was concerned, the agency of the trustee was merely to grant, convey and assign to him on the death of Peter Stuckert. Neither before nor after the death of Peter was the interest of David to be under the control of the trustee.

Whether at the date of the assignment, which was before Peter’s death, David’s interest would have been protected by the trust from adverse process at the suit of David’s creditors, it is not necessary to inquire, though it may be remarked that the authorities of the defendant’s counsel do not go so far as to prove even that. It is a well settled principle, however, that it is not permitted to a party to give an estate to another, and deprive that other of the legal consequences annexed to it. 4 Term Rep. 604.

As the will gives to David an interest which he could transfer as completely and effectually as if the legal estate were vested in him, any words limiting him in the disposition of it, would be repugnant. The will is to receive, if possible, such a construction as shall not be contrary to law. Where it cannot be so construed it is void. If then the restriction plainly contemplated the case before us, it would be inoperative. But it does., not expressly relate to any voluntary act of the party upon whom the estate is conferred.

To concede then to David Stuckert the right to make a conveyance for the benefit of creditors, does not seem to require the rejection of the clause as void ; while to deny to him that right is to infer a meaning which is not declared, and is to violate the policy of the law. There should then be Judgment for the plaintiff.