PRESENT: All the Justices 

GREER P. JACKSON, JR., ESQ., ADMINISTRATOR, 

D.B.N, C.T.A., AND SUBSTITUTE TRUSTEE FOR THE 

ESTATE OF GERTRUDE PIERCE WORTHINGTON 

 OPINION BY 

v. Record No. 041308 JUSTICE G. STEVEN AGEE 

 March 3, 2005 

FIDELITY AND DEPOSIT COMPANY OF MARYLAND 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Randall G. Johnson, Judge 

 Greer P. Jackson, Jr., Esq., Administrator, d.b.n., c.t.a. 

and Substitute Trustee for the Estate of Gertrude Pierce 

Worthington (the “Trustee”) appeals from the judgment of the 

Circuit Court of the City of Richmond which subjects the Trustee 

to garnishment for the debts of a spendthrift trust beneficiary. 

For the reasons set forth below we will reverse the judgment of 

the trial court. 

I. BACKGROUND AND PROCEEDINGS BELOW 

 Gertrude Pierce Worthington (Gertrude) died testate on 

August 6, 2000. Gertrude’s will divided her residuary estate, 

which was the bulk of her estate, into two testamentary trusts 

for her sons. Seventy-five percent of the residuary estate 

would be held in trust for Craig W. Worthington (Craig’s Trust). 

The remaining twenty-five percent would be held in trust for 

Bradford N. Worthington (Bradford’s Trust).1

 1

 The will established a trust for a portion of the 

residuary estate for Gertrude’s husband, Norman W. Worthington, 
Bradford qualified as administrator of Gertrude’s estate 

after the named fiduciaries declined to serve. Fidelity and 

Deposit Company of Maryland (Fidelity) executed a bond in the 

amount of $ 296,000 as corporate surety for the faithful 

discharge by Bradford of his duties as administrator. 

Without approval by a court or authority under Gertrude’s 

will, Bradford took estate funds to invest in his personal 

business, a breach of his fiduciary duties as administrator. 

Bradford failed to file fiduciary accountings as required by law 

or return the misappropriated funds to the estate. The 

Commissioner of Accounts for the City of Richmond filed a 

petition to remove Bradford as administrator of Gertrude’s 

estate and to forfeit the bond. After a hearing, the trial 

court removed Bradford as administrator of the estate and 

ordered him to file a final accounting. The trial court stayed 

consideration of forfeiture of the bond until Bradford filed a 

final accounting and the Commissioner of Accounts filed a final 

report. The Trustee was appointed by the trial court as 

 

if he survived her. It does not appear from the record that he 

did survive Gertrude and nothing in the record indicates such a 

trust was established. In any event, that factor has no bearing 

on the issues in this appeal. 

2
administrator d.b.n.c.t.a. of Gertrude’s estate and trustee of 

the testamentary trusts.2

Bradford never filed an accounting and Fidelity paid the 

amount of $127,808.60 to the Trustee as administrator of 

Gertrude’s estate representing the entire amount of Bradford’s 

defalcation and costs and making the estate whole. The trial 

court entered an order relieving Fidelity of its obligations as 

surety and awarding Fidelity a judgment against Bradford in the 

amount of $127,808.60, plus interest. Fidelity obtained a writ 

of fieri facias and instituted a garnishment proceeding against 

the Trustee to seize funds in Bradford’s Trust in partial 

satisfaction of the judgment against Bradford. 

Fidelity filed a motion to require the Trustee to show 

cause why he had not answered the garnishment summons. In 

response, the Trustee alleged that Gertrude’s will created a 

spendthrift trust for Bradford’s benefit and, therefore, trust 

funds could not be paid to a creditor of any beneficiary of such 

a trust. 

 The trial court conducted a hearing on the show cause 

motion and ultimately ruled “that a spendthrift trust was 

 2

 The Trustee succeeded Karen E. Dunivan, who was originally 

appointed as Administrator to replace Bradford but was removed 

due to a conflict of interest. 

3
created for Bradford” under Gertrude’s will.3 Nonetheless, 

the trial court held that Bradford’s interest in Bradford’s 

Trust in the hands of the Trustee could be garnished to 

satisfy Bradford’s debt to Fidelity. The trial court based 

its judgment on two grounds. First, it opined that 

Gertrude intended Bradford’s Trust to have less spendthrift 

protection than Craig’s Trust. Second, the trial court 

concluded there was a public policy exception to 

spendthrift protection if that would “allow one 

beneficiary, through his or her misconduct, to deprive the 

other beneficiaries of their entitlements.” 

We awarded the Trustee this appeal. 

II. ANALYSIS 

A spendthrift trust is a trust created for the maintenance 

or benefit of a beneficiary which is secured against his 

improvidence, placing it beyond the reach of his creditors. See

Alderman v. Virginia Trust Co., 181 Va. 497, 512-13, 25 S.E.2d 

333, 340 (1943). Accord In re Wilson, 3 Bankr. 439, 444 (Bankr. 

W.D. Va. 1980). In Virginia, spendthrift trusts are authorized 

by statute. See Code § 55-19. 

 3

 The trial court initially ruled that Bradford’s Trust was 

not a spendthrift trust. However, the Trustee moved for 

reconsideration, and the trial court changed its ruling. 

Fidelity did not assign cross error to this finding of the trial 

court so its argument that Bradford’s Trust is not a spendthrift 

trust will not be considered. Rule 5:17(c). 

4
Spendthrift trusts, not repugnant to the law, are 

allowed to give effect to the will of the donor and 

not because of any special consideration for the 

donee. . . . Any conveyance whether by operation by 

law or by act of any of the parties, which disappoints 

the purposes of the settlor by diverting the property 

or the income from the purposes named, would be a 

breach of the trust.

Alderman, 181 Va. at 518, 25 S.E.2d at 342 (citation and 

internal quotation marks omitted).

 Article VIII of Gertrude’s will provides, in pertinent 

part, as follows: 

To the extent permitted by law, the principal and 

income of any trust shall not be liable for the debts 

of any beneficiary or subject to alienation or 

anticipation by a beneficiary, except as otherwise 

provided. Neither Norman William Worthington, Craig 

William Worthington, or any other beneficiary of any 

other trust under this agreement shall have the right 

to anticipate, sell, assign, mortgage, pledge or 

otherwise dispose of or encumber all or any part of 

the trust estate nor shall any part of the trust 

estate including income, be liable for the debts or 

obligations of any kind of the Beneficiary or be 

subject to attachment, garnishment, execution, 

creditor’s bill or other legal or equitable process. 

 Although the trial court determined this provision 

qualified Bradford’s Trust as a spendthrift trust, it 

nonetheless entered judgment for Fidelity permitting it to 

garnish assets in Bradford’s Trust while in the hands of the 

Trustee. Because Bradford was not mentioned by name in Article 

VIII, but was only included as “any other beneficiary of any 

other trust under this agreement,” the trial court opined that 

5
. . . this is a fairly strong indication that the 

testator wanted the assets of Norman Worthington and 

Craig Worthington to have more protection than the 

assets of Bradford Worthington . . . . Shielding 

Bradford Worthington’s assets from garnishment would 

not do that. 

Citing Blakemore v. Jones, 22 N.E.2d 112, 113 (Mass. 1939), for 

the principle that “the interest of a beneficiary under a 

spendthrift trust may be taken to make good his liability for a 

breach of trust in his capacity as trustee,” the trial court 

essentially ruled that public policy permitted the garnishment 

of the spendthrift interest under the instant circumstances. 

 The Trustee contends the trial court erred as a matter of 

law. He argues that the will’s plain language contains no 

provision limiting the spendthrift protection accorded by 

Article VIII. Furthermore, the Trustee contends the applicable 

statute governing spendthrift trusts, Code § 55-19, contains no 

provision which supports the trial court’s ruling. 

 Fidelity responds that Gertrude could not have intended to 

safeguard Bradford from the consequences of his own fiduciary 

misconduct because Craig’s Trust is larger and contains a more 

detailed description of the fiduciary duties with regard to 

expenditures and actions on Craig’s behalf.4 Further, Fidelity 

 4

 Article III of Gertrude’s will sets out a five-page 

detailed trust for Craig’s benefit, particularly addressing 

Craig’s special needs. By contrast, Bradford’s Trust consists 

of the following: 

6
avers it is against public policy to grant anti-alienation 

protection to a beneficiary’s trust interest for debts created 

by the beneficiary’s defalcation as a fiduciary of that trust. 

We agree with the Trustee. 

 The scope of our inquiry is well settled. 

In construing a will there are two inquiries to be 

made. The first is, What is the intention of the 

testator as expressed by him in the words he has used? 

This is the animating spirit, the essence, the soul of 

the will. The words are the clothing, the mere 

vehicle used, to convey his ideas. When we once 

ascertain the intention of the testator, that is the 

governing principle, and must prevail, unless it 

violates some rule of law. 

Sheridan v. Krause, 161 Va. 873, 884-85, 172 S.E. 508, 511 

(1934) (citations and internal quotation marks omitted). 

 Gertrude’s intent is plainly and unequivocally expressed in 

Article VIII. All trust beneficiaries under her will, without 

limitation of any kind, are accorded the anti-alienation 

protection of the spendthrift provisions. The fact that Craig 

 

Article IV 

BRADFORD N. WORTHINGTON TRUST 

A. My Trustee may pay to or for the benefit of Bradford N. 

Worthington during his lifetime as much of the net income or 

principal of the Trust as my Trustee may deem appropriate for 

his support and health. My Trustee may distribute principal in 

kind while income is accumulated and shall annually add any 

undistributed income to principal. 

B. Upon Bradford N. Worthington reaching the age of 

sixty (60), my Trustee shall distribute the remaining principal 

and any accrued or undistributed income of the trust outright to 

him upon his written request. If Bradford N. Worthington dies 

before the termination of his separate trust, my Trustee shall 

7
is mentioned by name, while Bradford is encompassed as “any 

other beneficiary of any other trust under this agreement,” is a 

distinction of no meaning or significance. Neither the larger 

allocation of assets to Craig’s Trust, nor the more extensive 

provisions for his care, limits the plain and unequivocal 

language of Article VIII establishing spendthrift protection for 

all beneficiaries. No provision of Gertrude’s will negates or 

limits the spendthrift protection accorded Bradford’s Trust or 

suggests that Gertrude’s will means anything other than its 

plain language provides. 

The trial court’s conclusion to the contrary ignores the 

plain language of the will and is clearly error. A court has no 

authority to interpolate words into a will. See Gasque v. 

Sitterding, 208 Va. 206, 210, 156 S.E.2d 576, 580 (1967) (words 

are not to be added or deleted in construing a will); Rady v. 

Staiars, 160 Va. 373, 376, 168 S.E. 452, 452-53 (1933) (same). 

It is the duty of the court to construe the will which the 

testator has made and not to speculate as to his intention, or 

to make a will for him. See Owens v. Bank of Glade Spring, 195 

Va. 1138, 1148, 81 S.E.2d 565, 572 (1954). 

Accordingly, the testator’s clear intent expressed in 

Article VIII establishing spendthrift protection for Bradford’s 

 

distribute the remaining trust estate to his descendants, per

stirpes, but if there are none, to my descendants, per stirpes. 

8
Trust can be abrogated in Fidelity’s favor only if a rule of law 

requires it. To answer that inquiry, we review this Court’s 

application of the law of spendthrift trusts and the statutory 

foundation of current Code § 55-19. 

At common law, spendthrift trusts allowing testators or 

grantors to protect conveyances from future alienation by the 

transferee were not recognized at law or in equity. As this 

Court noted in Hutchison v. Maxwell, 100 Va. 169, 176-77, 40 

S.E. 655, 657 (1902), “[i]t is also well settled in England that 

the right of alienation and liability for debts are inseparable 

incidents of a life estate, whether limited by way of trust or 

otherwise.” This principle of the common law was codified by 

the General Assembly as early as 1787 and expressed in § 2428 of 

the Code of 1887 as follows: 

Estates of every kind, holden or possessed in trust, 

shall be subject to debts and charges of the persons 

to whose use or to whose benefit they are holden or 

possessed, as they would be if those persons owned the 

like interest in the things holden or possessed, as in 

the uses or trusts thereof. 

Id. at 178, 40 S.E. at 658 (citing 12 Henings Stat. at 

Large, ch. 62, p. 157; 1 Rev. Code of 1819, ch. 99, sec. 

30). 

 Accordingly, we declined in Maxwell to validate spendthrift 

provisions that would bar a creditor from seizing a 

beneficiary’s interest: 

9
The legislation of this State shows that it was the 

object and policy of the Legislature to make all 

estates, where the owner is sui juris, liable for 

debt, whether legal or equitable, except such as might 

be exempt by express statutory provisions. The effect 

of upholding spendthrift trusts would be to encourage 

idleness and lessen enterprise, and to foster a class 

who become more and more reckless and indifferent to 

their honest debts from a sense that they are hedged 

in by the law beyond the reach of their creditors. 

Id. at 179, 40 S.E. at 658. 

 In 1919, the General Assembly amended former Code § 2428 by 

adding the following language to new § 5157: 

[B]ut any such estate, not exceeding one hundred 

thousand dollars in actual value, may be holden or 

possessed in trust upon condition that the corpus 

thereof and the income therefrom, or either of them, 

shall be applied by the trustee to the support and 

maintenance of the beneficiaries without being subject 

to their liabilities or to alienation by them; but no 

such trust shall operate to the prejudice of any 

existing creditor of the creator of the trust. 

Code § 5157 (1919). 

 In Sheridan, we confirmed that this action of the General 

Assembly established the enforceability of spendthrift trusts so 

that the assets of a trust beneficiary, while in the hands of 

the trustee, were shielded from his creditors within the limits 

of the statute. We declared that spendthrift protection was to 

be liberally construed: 

The new part of section 5157 is clearly remedial and 

not restrictive, and is to be so interpreted. As we 

interpret it, the intention of the General Assembly in 

enacting the new matter contained in section 5157 was 

not merely to provide a begrudged exception to the 

application of the doctrine of Hutchinson v. Maxwell

10
or to the rule laid down in the old part of that 

section as it had been interpreted by this court in 

that case. Its intention was to make a material 

change in the public policy of the state on this 

subject, and to liberalize and humanize the rule of 

Hutchinson v. Maxwell. 

161 Va. at 895, 172 S.E. at 581. 

 Code § 55-19, the successor to Sections 2428 and 5157, has 

expanded the remedial application of spendthrift trusts in that 

it contains no monetary limit or limitation “for the benefit of 

the beneficiaries.”5 The General Assembly has, however, 

specifically limited spendthrift trust protection in several 

enumerated circumstances set out in the statute. Thus a 

beneficiary’s debts in conjunction with an employee benefit 

plan, for child support, public assistance and medical 

assistance are enforceable by creditors against the 

beneficiary’s trust interest in the hands of the trustee 

regardless of any spendthrift provisions the trust contains. 

Code § 55-19(B)-(D). 

The debt Fidelity seeks to collect from Bradford, for 

breach of fiduciary duty, is not among the statutory exceptions 

 5

 The former monetary limit on spendthrift trusts under Code 

§ 55-19 was abrogated in 2001, the year after Gertrude died. 

Acts 2001 c. 81. In Virginia, the law applicable at the date of 

the testator’s death is applied in interpreting the will. See

McGehee v. Edwards, 268 Va. 15, 20, 597 S.E.2d 99, 102 (2004). 

There is no issue in the current appeal that is affected by the 

provisions of Code § 55-19 as amended after Gertrude’s death, 

and the law in effect at the date of her death is construed in 

this appeal. 

11
to the coverage of Code § 55-19. Fidelity nonetheless urges 

that this Court create a judicial exception, beyond the 

exceptions found in Code § 55-19, to statutory spendthrift trust 

protection. Fidelity contends that public policy should permit 

a creditor, whose debt is derived from the beneficiary’s breach 

of fiduciary duty, to reach the interests of that beneficiary 

while held in trust for his benefit. 

Fidelity’s argument must fail, however, because it ignores 

the plain language of the statute and the fact the General 

Assembly has set out with specificity any exemptions to its 

coverage. We presume that the “legislature chose, with care, 

the words it used when it enacted the . . . statute." Simon v. 

Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003) (citation 

omitted). Courts cannot “add language to the statute the 

General Assembly has not seen fit to include.” Holsapple v. 

Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003). 

“[N]or are they permitted to accomplish the same result by 

judicial interpretation.” Burlile v. Commonwealth, 261 Va. 501, 

511, 544 S.E.2d 360, 365 (2001) (citation and internal quotation 

marks omitted). Where the General Assembly has expressed its 

intent in clear and unequivocal terms, it is not the province of 

the judiciary to add words to the statute or alter its plain 

meaning. 

12
Code § 55-19 covers in express terms those debts not 

accorded spendthrift protection. “[T]he mention of . . . 

specific item[s] in a statute implies that other omitted items 

were not intended to be included in the scope of the statute." 

Smith Mountain Lake Yacht Club, Inc. v. Ramaker, 261 Va. 240, 

246, 542 S.E.2d 392, 395 (2001). Thus, because the statute 

specifically lists exceptions to spendthrift protection, those 

exceptions are the only ones allowed by law. To affirm the 

trial court’s addition of another exception would violate the 

principle of expressio unius est exclusio alterius. Under this 

principle, we have held that "when a legislative enactment 

limits the manner in which something may be done, the enactment 

also evinces the intent that it shall not be done another way." 

Commonwealth v. Brown, 259 Va. 697, 705, 529 S.E.2d 96, 100 

(2000) (citation omitted). Fidelity’s argument would require the 

Court to add an exception to the statute which the General 

Assembly has not seen fit to adopt. "Courts are not permitted 

to rewrite statutes. This is a legislative function." Anderson 

v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944). 

While the General Assembly may exclude from the protection of 

Code § 55-19 a beneficiary’s interest in a trust for his breach 

of fiduciary duty, that decision is solely within the province 

of the General Assembly. 

13
The trial court therefore erred in its judgment by creating 

a judicial exception to the spendthrift protection afforded by 

Code § 55-19. 

III. CONCLUSION 

 The trial court erred in ignoring the plain language of 

Article VIII of Gertrude’s will when it failed to accord full 

spendthrift protection to Bradford’s Trust and bar Fidelity’s 

garnishment. Further, the trial court erred in concluding that 

a non-statutory exception to the provisions of Code § 55-19 

could be created to permit a beneficiary’s creditor, such as 

Fidelity, to reach the beneficiary’s interest in a trust where 

that beneficiary had committed a breach of trust resulting in 

his liability. Accordingly, the judgment of the trial court 

will be reversed and final judgment entered on behalf of the 

Trustee. 

Reversed and final judgment. 

14