78 A.D. 366 | N.Y. App. Div. | 1903
This is a suit in equity to impress a trust fund in the hands of the appellant, being the proceeds of an insurance policy on the life of Louis J. Jordan, which was payable to his estate, with the lien of a judgment recovered by the respondent against said Louis J. Jordan and John Lynch. The judgment was recovered and execution was issued and returned unsatisfied during the lifetime of Jordan. He left a last will and testament and his wife was sole executrix. The executrix duly published notice for creditors to present claims, but
Payment of this judgment could not be enforced against the next of kin or beneficiaries under section 1837 of the Code of Civil Procedure, for the reason that no part of the fund has been “ paid or distributed to them.” The creditors are entitled to payment of their claims out of the estate of a decedent (Code Civ. Proc. § 2719), and when his property has been distributed to his widow and next of kin or legatees before the payment of all claims, the creditors have a right of action for the amount thus distributed. (Code Civ. Proc. § 1837.) This fund has not been paid or distributed within the meaning of said section 1837 of the Code, but it remains intact and is in equity, so far as creditors are concerned, still part of the estate of the testator, and it is readily identified and should be followed and impressed with the lien of the respondent’s judgment to the extent necessary to satisfy the same.
It follows that the judgment should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Judgment affirmed, with costs.