265 A.D. 20 | N.Y. App. Div. | 1942
Lead Opinion
Petitioner, judgment creditor of a legatee of the estate of Leopold Edelmuth, deceased, has a garnishee execution under section 684 of the Civil Practice Act against the income due and to become due to one Bella G-reenbaum, life beneficiary of a trust fund established under the will. The garnishee execution was served upon the executor and trustee on April 25, 1937, but no payment has been made.
We think the learned Surrogate properly denied petitioner’s demand for a compulsory accounting in the estate. As defined by subdivision 10 of section 314 of the Surrogate’s Court Act, petitioner is neither an assignee nor a person otherwise interested in the estate but has a remedy by action against the
The order appealed from should be affirmed, with twenty dollars costs and disbursements.
Dissenting Opinion
The petitioner is a judgment creditor in whose favor a garnishee execution has been issued against the income of a trust established by the last will and testament of Leopold Bdelmuth, deceased. The surrogate denied the petitioner’s application to compel the respondent Katz, the sole executor and trustee of the estate, to account upon the ground that it had no interest sufficient to maintain the proceeding.
Leopold Bdelmuth died on November 20, 1934. By his will Bella G-reenbaum, his sister, during her life receives the income of a trust, the principal of which amounts to about $50,000. The trust fund was duly established but there has been no accounting since November, 1935. On April 7, 1937, the petitioner recovered a judgment for upwards of $600 against Bella G-reenbaum and, no part of the judgment having been paid, it secured a garnishee execution pursuant to section 684 of the Civil Practice Act against the income due or to become due on the trust fund. Although a copy of the order was served on the executor and trustee, no payments have been made to the petitioner.
If the petitioner were merely a judgment creditor of Bella G-reenbaum it is very evident that it could not maintain this proceeding under the provisions of section 259 of the Surrogate’s Court Act, which, so far as material, limit the right to petition for an accounting against an executor or administrator to a “creditor or person interested in the estate or fund” and against a testamentary trustee to “any person beneficially interested in the execution of any of the trusts”. The garnishee execution, however, and the express provisions of section 684 of the Civil Practice Act, by operation of law, have created a
The order should be reversed and the application granted.
Mabtin, P. J., Townley, Glennon and Dobe, JJ., concur in Per Curiam opinion; Untebmyeb, J., dissents in opinion.
Order affirmed.