38 N.Y.S. 363 | N.Y. App. Div. | 1896
The defendant Leonard- is a daughter of Jéremiah P. Robinson,, who died leaving a large estate. .By..the terms of his will, so. far as essential to any cpiestion arising in this case, the devise, to his daughter was in trust as follows: “ Her share shall be held and kept invested, for the life of said daughter by my executors, or the survivors or survivor of them, and the net interest and income thereof shall, as it accrues,, be paid to- her,, or applied to' her uSe so-long as she shall live.” The will also devised to his wife, Elizabeth Robinson, certain personal property and one-fourth of his estate.. His Wife has since died, leaving a will which, so far as affects any interests here, makes, the same disposition of her property as was made by the will of her husband.
. Since the death of both husband and wife' the property has been kept together and managed by the executors, who are the testator’s-children, as trustees. The business as it was carried on during the lifetime of Jeremiah P. Robinson, has been substantially conducted by the executors in the same manner, the son Jeremiah having its-active management. The income of the estate from August 31, 1892, to the same date ■ in 1894, was respectively $119,789.30, $117,007.89, $59,694.91, making a total income for that period of' $296,492.10, and the net income $79,319.24. . The average income during this time to which Mrs. Leonard was entitled, is $6,609.93. From September 1, 1894,. to July 1, 1895, the. net income was
The plaintiff is a judgment creditor of Mrs. Leonard’s, and the basis for the judgment is the purchase price of clothing furnished for her personal use. The present action is in the nature of a creditor’s bill to reach surplus income. The allegations of the bill are, among other things, that the income received from the trustees by Mrs. Leonard is more than sufficient to provide for her suitable support and maintenance, and that the surplus is properly" applicable in equity to the payment of the judgment. And plaintiff asks in her
The conclusion is first, assailed upon the ground that there "has never existed any basis of legal right to maintain this action-. The defendant assigns as reason for" this claim that it was necessary for plaintiff to" show that a surplus income existed. To this we .'agree. Examination of "the* argument of the learned counsel for Mrs. Leonard, however, shows that this is not precisely what he means. And . in the light of further" statement we learn that what, is" "intended to be conveyed is that there must -have been an accumulation of some income, which, with the sum which may' be received, must be beyond the needs of the cestui, que trust-before equity can lay hold of.it; The Revised Statutes provide, “Where a trust is. created to receive the rents and profits of lands, and no- valid direction for accumulation is given, the surplus of such rents and" profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall' be.liable, in equity, to the claims of the creditors of stich person, in the same "manner ,as other personal property, Which cannot "be readied- by an éxecution at law.” (4 R. S. [8th ed.] 2438, § 57 ; Code Civ. Proc. § 1871.)
■ Tinder this statute, which- is authority for "this action, we"understand that the precise claim which-is urged here" was made and con-.
In the Williams ease the allegation of the complaint was that the income of the estate was much greater than was necessary for defendant’s support. Nothing appeared by it to show that there was any surplus of income in the hands of the trustee. And the decision, which was supported, provided, among other things, “ That the surplus over and above such allowance (i. e., that provided in the judgment), whether accrued ■ or hereafter to accrue, should be paid to the plaintiff,” etc. It is suggested that in fact, in this case, there was an accumulation of income when the action was commenced. If this’ be so, it is evident that the decision was not made to depend upon that fact, and as the point was raised and condemned, it may be assumed that it did not 'so appear. Nothing that appears ,in the report of this case, when again appealed ’(81 N. Y. 381), lends color' to the claim. On the contrary, the sum there commanded to be paid' over had; all accrued subsequent to the commencement of the action. In this' Connection it is interesting to note, that in the. Mann case,' which, as we have seen, was condemned, as reported.on' appeal (5 Hun, 425), shows that no surplus of. income' Was alleged to exist at the time' when the suit was commenced. ' It was with great reluctance, and evidently with a clear, conviction that the court was wrong, in Campbell v. Foster (35 N. Y. 361) that the Supreme Court sustained the demurrer therein. The con
In Kilroy v. Wood (42 Hun, 636), Moulton v. de ma Carty (6 Robt. 533), and Card v. Meincke (72 Hun, 299), there was a simple failure of proof to show that the income, not the amount on hand at any special time, was more than was necessary for the needs of the cestui que íroszí, and none .of them are authority, for the contention now urged. In Stow v. Chapin (4 N. Y. Supp. 496) nothing was before the court except the sufficiency of the papers, upon which the injunction granted therein was based. The allega^, tions were held insufficient, for the reason that there was no proof showing what would be a srifficient income for .the'defendant. There was no denial of the right to relief in a proper case, and the order provided for a future application upon -sufficient papers. So far as the note of Mr. Abbott to the case of Tolies v. Wood (16 Abb. N. 0. 1, 29, 30) assumes that there must be surplus in the hands of the trustees before the action Can be maintained, it is not in harmony, with the decision in the Williams -case. Where income has been, paid, its source and amotint explained, and its permanent basis established with certainty, an action to reach it is not premature within" the doctrine of any well-considered case. In this class of cases it' is-quite apparent that each must be largely determined upon its particular facts, aided by stich general rules as precedent has established. It is quite true that, in determining the amount of income necessary in a given case, due regard must be had for the station in life, the social standing and the accustomed manner of living of the party both before and since the income was provided. It is quite proper' in some cases to allow for the retention of servants and the- maintenance of an equipage, while in others no such considerations would be allowed. In Sillick v. Mason (supra;) it was said: “ They should not, upon, a fair construction of the statute on this subject, be permitted, to indulge in extravagant expenditures while the defendant’s creditors remain unpaid.” The proofs before the referee showed in detail about the method, style and cost of living of Mrs. Leonard and her family before and since the death of her father. Her son is now twenty-one years of age and the unmarried daughter eighteen. How the daughter lives is shown. Respecting the son, it is objected that there is no basis upon which the referee could
It follows from these views that the judgment was right, and should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.