138 N.Y.S. 790 | N.Y. App. Div. | 1912
Lead Opinion
The judgment appealed from was entered upon a decision of the court at Special Term and plaintiff appeals from the judgment so entered, upon the decision, no case having been made. The facts, therefore, are not in dispute.
The court found that Hudson Hoagiand died on J anuary 30, 1904, leaving a last will and testament which was duly admitted to probate; that said will gave to the executors in trust the sum of $25,000 to pay the income thereof to Charles F. Hoagiand during his life and upon his death to pay the principal of the said sum to his children, with a further provision that in the event of the death of the said Charles F. Hoagiand leaving no children surviving him the sum of $25,000 should become a part of the residuary estate; that the said trustees are now in possession of that trust administering it as provided by the said will; that on or about February 21, 18H, the plaintiff' and the said Charles F. Hoagiand became husband and wife, but prior to the year 1905 they had separated and plaintiff had commenced an action of divorce against the said Charles F.
It thus appears that prior to the death of Hudson Hoagland and the institution of this trust for the benefit of Charles F. Hoagland, the plaintiff and Charles F. Hoagland were married and by such marriage the defendant Charles F. Hoagland assumed the obligation to support the plaintiff as his wife and . that obligation was in existence on the creation of this trust. Subsequent to the creation of the trust this action of divorce was commenced and the plaintiff obtained a divorce from the defendant and the extent of the obligation of Charles F. Hoagland which he had assumed on his marriage with the plaintiff was settled by that decree, the amount of alimony to be paid by Charles F. Hoagland was fixed and determined, and the source from which such alimony was to be derived was also determined by the court. The court had jurisdiction of the subject-matter and had jurisdiction over the persons of the parties to this marriage. It made a final decree by which as it. became due the income to which defendant Charles F. Hoagland was entitled under this trust fund was apportioned in the sum of $416, to be paid each year to the plaintiff in discharge of the obligation assumed by Charles F. Hoagland for the support of his wife. We will assume that Charles F. Hoagland would have no power to assign or transfer his future income from the trust fund and it may be that such a direction as that contained in the judgment of divorce apportioning the income from this trust fund and requiring the defendant Hoagland and the trustees to pay to the plaintiff a sum of money each year out of such income existing should not have been inserted in the judgment if the defendant Charles F. Hoagland had
It is now settled in this State that the Supreme Court has jurisdiction to reach the income of trust property held for the benefit of a husband in favor of a wife who has obtained a divorce to satisfy the provisions of such decree requiring the payment of alimony. (Wetmore v. Wetmore, 149 N. Y. 520.) In that case the- plaintiff had obtained a decree of divorce against the defendant which provided for thé payment of alimony.. The defendant in that case, as in this, was the beneficiary of a trust fund, the income of which was payable to him. He left the jurisdiction of the court, refused to pay the alimony directed, and, after the usual sequestration proceedings had been had without result, an action in equity was commenced in the Supreme Court to reach the income of the trust fund as it became due and have it applied to the payment of the alimony directed to be paid to the plaintiff in the action: The jurisdiction of the court to reach the income of the trust fund as it became due for the payment of the alimony was sustained, and a judgment was entered requiring the trustees to pay to the wife the income of the trust fund so far as it was necessary to discharge the' husband’s obligation to pay for the support of his wife. The trustees, who were parties to the action in equity, raised in that case, as the defendants do in
The court, by the divorce judgment, as between the plaintiff and the defendant Charles F. Hoagland, has ascertained and determined the amount that should be paid by Charles F. Hoagland for the support of" his wife. It has provided that that payment should be made out of the income of the trust fund, which should be applied for that purpose as it became due, and Charles F. Hoagland having refused to comply with the judgment and having withdrawn himself from this State and the jurisdiction of the court, leaving no money or property in this State by which the judgment can be enforced, the court in this action is asked to enforce the mandatory provisions of the judgment and to - make it effective by decree that out of the income of the trust property as it became due the trustees shall pay to the plaintiff the amount that this judgment directed. The trustees will be absolutely protected in following this judgment, as the defendant Batchis, who is the claimant of this reserved income, merely claims as an assignee of Charles F. Hoagland who was bound by the judgment; and the assignee can take no greater rights in this accumulated income than Charles F. Hoagland, who is also a defendant. It seems to me, therefore, that the court below was in error in refusing to enter a judgment for the plaintiff upon the facts found.
It follows that the judgment appealed from should be reversed, and judgment directed for the plaintiff as prayed for, with costs to the plaintiff .in all courts against the defendants Charles F. Hoagland and Edmund Batchis.
McLaughlin, Clarke and Scott, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
I believe that the case of Wetmore v. Wetmore (149 N. Y. 520) is clearly distinguishable. from the case at bar, for that was a judgment creditor’s action and was sustained as' such, and it was alleged and proved therein that the wife had exhausted all her legal remedies to obtain payment before resorting to a suit in equity.. The case at bar proceeds upon no such theory. The interest of a cestui que trust of a fund such as the one in question is inalienable (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 15; Stringer v. Young, 191 N. Y. 157), and an assignment or trust forbidden and void cannot be validated by a judgment, with or without the consent of the parties (Douglas v. Cruger, 80 id. 15), nor can any consent or agreement between the parties give to a judgment any greater effect than the law gives to it. (Lanning v. Carpenter, 48 N. Y. 408.) I believe, therefore, that the judgment appealed from should be affirmed, with costs.
Judgment reversed, and judgment directed for plaintiff as demanded in complaint, with costs against defendants C. F. Hoagland and E. Batchis in all courts. Order to be settled on notice.