majority">Kellogg, J.

This is an action of trover for a colt, one yearling and two two-years-old cattle, and one lamb, attached by the defendant as an officer on writs in his hands against one «George E. Sias, and subsequently sold on the executions issued on the judgments rendered against said George in said suits. *31The question for decision is, whether, on the facts appearing in the case, the property in question legally belonged to the said George, so that it was subject to attachment on his debts, at the time of the conversion complained of.

It appears that this stock was raised on a farm in Danville which was owned by Judge Samuel Sias, the grandfather of said George ; and there can be no doubt that Judge Sias, under the contract between him and George, was the legal owner of the stock and other property on the farm at the time of his decease in December, 1857. By his will, which was duly proved, he devised and bequeathed to the plaintiffs the said farm, stock, and other property to be by them held in trust for the said George and his wife and children during the natural life of the said George and his wife, and, at their decease, to be divided equally between their children, with authority to permit the said George “ to have the management and control of said trust .property at any time, and 'so long, as from his habits for industry, frugality, temperance, economy, and strict attention to his home and family, they should think it safe and prudent so to do.” It also appears that George had lived on said farm for several years previous to the decease of his grandfather, and that he was destitute of property, and somewhat shiftless and improvident; and the purpose of this testamentary provision manifestly was to keep the title of this property in the hands of the trustees, leaving it to their discretion how far and when to trust George with it. The property which was attached by the defendant was all raised from stock on the farm at the time of the testator’s death, and the legal title to it passed to the plaintiffs as trustees under the provisions of his will. The said George comes into his connection with this property only through these trustees, and he is one, but not the only one, of the cestuis que trust for whose benefit the testator made this provision.

It is claimed on the part of the defendant that the trustees having suffered the property to remain in the possession and under the control and management of George, the trust became so far executed as to divest them of their legal title to the property, and to make the products of the farm and the increase and growth of the stock his absolute property. It was undoubtedly *32competent for the trustees to surrender the control of this property to him whenever they saw fit, so as to vest in him the ownership as well as the temporary possession and management of it; but without some positive act indicating an intention on their part to do this, the legal title to the property should be considered as remaining in the trustees. The mere fact that he was suffered by the trustees to live upon and carry on the farm, and to manage aud take care of the stock, and to appropriate the avails of the same for the support of himself and his family, is not, in •our opinion, an act of that character; as such use, management, and appropriation of the property by him under • the oversight and control of the trustees is ‘the precise object which the tes.tator had in view when he made this provision in his will. The county court have found that after the property passed into the hands of the trustees, they took, and since have had, the general charge and supervision of it, and we find nothing in the case to show that they ever parted with their legal title to it. It is, claimed by the defendant that the value of the property has been enhanced by the labor of George, but this, if true, would give to him no separable interest in any specific article of the pro-, perty, although it might furnish ground for an equitable claim, on the part of his creditors and become the proper subject of an accounting in a court of equity. But there is nothing in the-facts found in this case which shows that the labor which.George-expended in the care and management of the property was worth any i-nore than the amount of the avails of the property received by him or appropriated to the support of himself and his family; and, unless this did appear, there would be no ground for any equitable claim to the property on the part of his creditors. We are satisfied that the facts, as found by the county court, will not justify the conclusion that the trust property was ever so severed or surrendered by the trustees to him as to transfer to him the legal title to the property.

The ease of Trask v. Donoghue, 1 Aik. 370, is cited by the defendant as an authority which is decisive in favor of his defence in this suit. In that case, it was held that if real and personal estate be devised to trustees to the use of a cestui que trust during his life, and the trustees put him in possession and *33suffer Mm to occupy the same without account, the products of such estate may be attached by his creditors. In that case, there was but a single cestui que trust, and in this respect it is unlike the present case; but we think that the ground of that decision may justly be questioned. It is stated by Hutchinson, J., interrogatively, in these words : . “ Can one be cestui que trust of personal property not exempt by law from attachment, and have the sole visible possession of that property, and add much to its value by his own industry, which, but for this strategem, might produce some other property for his creditors, — and can he hold this property to the «Kclusion of his honest creditors? The court are of opinion that he cannot.” The point of the decision seems to be that such a possession of the trust property by the cestui que trust is in itself a fraud in law upon his creditors, if he bestows any labor upon it, or in the care of it, because, but for this, his industry might produce some other property for them. There would seem to be equal force in the proposition that the trust itself would be a fraud in law, on the ground that by making any provision whatever for the support of the cestui que trust, he would, to the extent of such provision, be relieved from the ordinary incitements to industry, and more especially so in a case in which the provision was ample enough to enable him to live without labor. But perhaps, if the cestui que trust was so entirely helpless as to be unable to labor, such a case would not .come within the reason or spirit of this decision. The fraud of such a possession of the t»ust property by the cestui que trust, as to his creditors, would, in the light of this decision, rest not upon the possession itself nor upon any fact existing at its commencement, but upon the possession coupled with the fact that the labor of the trustee had added something to the value of the trust property. This is the only ground upon which the creditor could seek to pursue the trust property on a debt* against the cestui que trust, and, in our opinion, the claim of the creditor to be allowed the benefit of the increased value of the trust property in satisfaction of his debt in such a case would be one cognizable in a court of equity and not in a court of law.

The judgment of the county court in favor of the plaintiffs is affirmed.

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