delivered the opinion of the court, May 8th 1882.

It is unnecessary to examine and discuss the assignments of error seriatim. One error we think runs through, and affects them all. The learned judge below erred in affirming the defendant’s ninth point, viz: “If the jury find that William J. Fell, individually, was the landlord of the firm, for the store and mill, then this action cannot be sustained,- and the verdict must be for the defendant.” The whole case, it will be seen, was made to turn upon the question of fact whether William J. Fell received rent from the firm as an individual, or as a trustee. We think that this was an immaterial question.

The issue under the agreement of the parties, was simply whether the rent claimed was a part of the trust estate of Franklin Fell, and if so, the plaintiffs as substituted trustees under his will were clearly entitled to it. The mill and store in question were a part of that trust estate. By the will the property was devised, inter alia, to his son William, and the Fidelity Trust Co., “ in trust to let and manage the real estate, and to collect, recover and receive the rents, and income thereof, or to allow my said son William Jenks Fell, at his option, to use and occupy any "lands, messuages or tenements, belonging to my said estate, from time to time during his natural life, the taxes, assessments and repairs thereof to be paid out of the income of my estate.” It then proceeds to declare that the net income shall be paid to his son William, and adds “ in no event shall the principal or income thereof, be liable in any way or manner whatsoever for any of the debts liabilities, or engagements of my said son, or to any attachment or execution or proceeding in the nature thereof.” It is too plain 'for argument that the main object of the testator in creating this trust was, to protect his estate or that part of it which he meant for the support of his son William, both principal and income, from his creditors. It was necessarily an active trust, and the clause permitting William at his option to occupy or use any part of it, did not prevent that result: Rife v. Geyer, 9 P. F. Smith 393. If William exercised this option it did not make him the owner of the property. He might occupy it himself or permit others to occupy. Iiis receipt of the rent, would discharge the tenants. When he received the rent he could do what he pleased with it. He could then invest it in his own name — he could pay his debts with it — he could give it away. But until it was received by him it belonged to the trust. In renting it or permitting his firm to occupy it at a stipulated rent he was act*259ing but as the agent of the trustees. The permission and option of were of necessity revocable. He had no power except as trustee to make a lease or reserve rent to himself individually. If he could do so, the rent, as soon as it was due, could have been attached by his creditors. He might on the same principle, have appropriated the entire estate to himself, as an individual ; and the whole income might have been swept from him by his creditors, and then he would by his own act have destroyed the trust created by the will. On the contrary, it is evident that though the trustees might under the will permit William at his option to receive the rents and income, the moment any of his creditors claimed to arrest them, before their actual receipt by him, it was their right and duty to intervene and protect the trust, and prevent it from going where the testator had prohibited it from going. The fact that William, when applying to be discharged as trustee, had declared under oath that lie bad never done any thing as trustee, upon which so much stress was laid by the learned judge in his instructions to the jury, was altogether insignificant. Whether he acted as trustee or cestui que trust under the option made no difference. It could not and did not change the active operative character of the trust. We have treated the case as if there was evidence of an actual occupancy by William, and of a renting by him to his firm. The fact was, it seems, that Franklin Fell, in his lifetime, rented the property to the firm of which his son was a member. An account in his name on the books of the firm, had been credited with the rent of the premises, and after his death an account was opened with “ W. J. Fell, executor ” in which the rent was credited. We have no doubt that the trustees had a right to distrain for the rent in arrear, and that upon the evidence the jury should have been directed to find a verdict for the plaintiffs.

Judgment reversed and venire facias de novo awarded.