be to invest him with a right to be both a faithless husband and a vicious citizen. This case reaches beyond the concern of the immediate parties to it. It affects the status of the family as being the foundation of society and civilization, and hence in a very certain sense is of wide public concern.
'There is still another great factor to be considered in this case, the legal unity of husband and wife, and it is a unity which must continue to be recognized, however much modern laws enlarge the separate rights and privileges of each. And with this merger of existence and interests, established from the most ancient times in all civilized lands, how can it be claimed that the status of creditor and debtor is established between them, when it is a question of the mutual performance and fulfillment of fundamental duties as husband and wife, which the obligations of humanity impose and the safety of society requires from both?'
The court pointedly added that 'property available for the purposes of pleasure or profit should be also answerable to the demands of justice.' While the court indicated that under the peculiar circumstances of the case, the creator of the trust could not have intended to exempt the income from the claim of the wife to alimony, it also predicated its decision on the broader ground that such an income should generally be subject to the rights of the wife and children to support.
The rule that the income of a spendthrift trust may be diverted to the support of the beneficiary's wife and minor children, has been followed in a number of other States, among them Illinois, Oregon, and Nebraska, Keller v. Keller, 284 Ill.App. 198, 1 N.E.2d 773; Cogswell v. Cogswell, 178 Or. 417, 446, 167 P.2d 324; In re Will of Sullivan, 144 Neb. 36, 40, 12 N.W.2d 148. Maryland has likewise adopted the same doctrine. It must be borne in mind that the decisions of Maryland courts on questions of common law and equity jurisprudence, necessarily carry great weight in this jurisdiction, because the District of Columbia derives its common law and principles of equity through Maryland. In Safe Deposit & Trust Co. v. Robertson, 192 Md. 653, 663, 65 A.2d 292, 296, it was held that while spendthrift trusts are valid as against contract creditors, the exemption should not extend to claims for support or alimony. The court summarized its views as follows:
'We think the rule that gives legal effect to spendthrift provisions as against contract creditors should not be extended to claims for support or alimony. In such situations the wife is a favored suitor, and her claim is based upon the strongest grounds of public policy.'
On the other hand, some jurisdictions, among them California, Iowa, and Minnesota, hold that the income of a spendthrift trust is not liable for the payment of alimony or maintenance of a wife or minor children, and place such claims on a par with debts, San Diego Trust, etc., Bank v. Heustis, 121 Cal.App. 675, 683 et seq., 10 P.2d 158; Roorda v. Roorda, 230 Iowa 1103, 1107-1108, 300 N.W. 294; Erickson v. Erickson, 197 Minn. 71, 77, 266 N.W. 161, 267 N.W. 426.
The modern trend in the direction of applying the income of spendthrift trusts to claims for alimony and maintenance, is graphically illustrated by the development of the law of Wisconsin on this point. In Schwager v. Schwager, 7 Cir., 109 F.2d 754, which was decided under the law of Wisconsin, it was held by a vote of two to one, that in the absence of any decision of the highest court of that State on this point, the income of a spendthrift trust should be deemed exempt from the rights of a wife and minor children to support. The views of the protagonists of this doctrine are set forth in the majority opinion as follows:
'It would serve no good purpose for us to enter into a castigation of the husband for his plain and apparently willful disregard of an obligation imposed upon him by the law of Wisconsin and, in fact, by the laws of all civilized jurisdictions. No doubt there is a thoroughly established public policy which imposes such obligation upon a husband. We are convinced, however, that there is nothing in such policy which requires or, in fact, permits the destruction of a spendthrift trust under the circumstances presented. In the first place, the policy that a person may dispose of his property according to his own wishes, is equally well established. In the instant case, for instance, the testatrix was under no obligation to her son's wife and children. She was under no obligation to bequeath her property to her son in trust or otherwise. She was at perfect liberty to give it all to a stranger had she so desired. Being thus empowered, it is difficult to ascertain by any ordinary process of reasoning, how or why she should be precluded from disposing of its as she did. The wife and children were not damaged -- they were no worse off than before. They were deprived of no means afforded by the law to enforce the duty imposed upon the husband for alimony and support.' 109 F.2d at pages 759-760.
The dissenting opinion in that case emphatically and eloquently summarized the contrary position, which, it is believed, today represents the greater weight of authority, 109 F.2d at page 763:
'it would seem not unlikely that the various states (including Wisconsin) which have not spoken, may, in the light of the difference of opinion (not limited to judicial opinion), refuse to sanction a scheme whereby a spendthrift may live in comfort (or even luxury) and flout the obligations which he owes to the children he brought into existence or to a society which today humanely assumes a keen interest in their welfare as well as in the wife who has been deserted. It is not at all unlikely that the courts of the states which have not spoken may conclude that a provision of a spendthrift trust, which exempts the trust from the claims of alimony and children's support, is against public policy.'
About three years later, the Supreme Court of Wisconsin had occasion to speak on this subject in Dillon v. Dillon, 244 Wis. 122, 11 N.W.2d 628. It distinguished the Schwager case, which has just been discussed, and adopted the rule that the income of a spendthrift trust might be reached to meet the claims of a wife and minor children for support. In so doing it relied largely on the Pennsylvania case of In re Moorehead's Estate, supra, and quoted at length from the opinion.
The family is the foundation of society. The duty of a married man to support and protect his wife and children is inherent in human nature. It is a part of natural law, as well as a requirement of the law of every civilized country. It is not an ordinary indebtedness, such as a contractual obligation or a judgment for damages arising out of a tort. It is a responsibility far superior to that of paying one's debts, important as the latter obligation is. No part of a man's property or income should be exempt from meeting this liability, for he is under at least as great a duty to provide shelter, clothing, and food for his immediate family as he is to furnish them for his own person. The law should not regard with complacency any man who repudiates or ignores this obligation, which is instinctive in mankind, and should not permit him to flout it with impunity.
On the basis of the demands of natural justice, as well as on principle and the greater weight of authority, the court reaches the conclusion that, irrespective of the validity of a spendthrift trust, which need not be passed upon in this case, the income of such a trust may be reached for the purpose of meeting the claims of a wife and minor children for alimony and maintenance.
Accordingly, the motion to quash the traverse is denied, and an appropriate order and judgment may issue in accordance with the foregoing views.