116 Misc. 19 | N.Y. Sur. Ct. | 1921
The testatrix 'by her will directed that part of the income of a certain trust be paid to William W. Yard, Jr. The latter’s wife applies in this proceeding for the payment of one-half of the income bequeathed to him. Prior to 1919 the husband and wife separated and are now living apart. A separation agreement was entered into between them which makes specific provision for the payment of one-half of his interest in this estate for her support and maintenance. The husband now opposes this application on the ground that the separation agreement is an assignment and thereby void under section 103 of the Real Property Law and section 15 of the Personal Property Law, which prohibit the transfer of trust income. The trustee is neutral. The portion of the income claimed by the wife amounts approximately to $50 per month. The allowance fixed in the agreement is extremely reasonable. This court under the equity powers granted to it by section 2510 of the Code of Civil Procedure (old § 2472a) has complete jurisdiction in this proceeding. ■ Matter of Malcomson, 188 App. Div. 600; Matter of Coombs, 185 id. 312; Hull v. Hull, 225 N. Y. 342, 352. The application will, therefore, be granted.
I see no difference between the direction in a decree of alimony, and the amount allowed in the separation agreement. In the former case there is an element of compulsion although within the proper jurisdiction of a court of equity. In the latter case, the husband consents to the allowance, thereby recognizing the duty to provide and the reasonableness of the amount fixed by both parties. Indeed under all the authorities, the terms of a valid separation agreement seem to be equally as forceful and effectual as a judicial allowance of alimony, and they are conclusive as to the amount of alimony either temporary or final. Galusha v. Galusha, 116 N. Y. 635; Greenfield v. Greenfield, 161 App. Div. 573; Benesch v. Benesch, 182 id. 221; Winter v. Winter, 191 N. Y. 462; Gewirtz v. Gewirtz, 189 App. Div. 483; Van Ness v. Ransom, 164 id. 483; affd., sub nom., Parsons v. Macfarlane, 220 N. Y. 605. Such a contract is biding upon both parties, unless set aside or impeached.
But the husband here asserts that this court cannot direct payment of one-half of the income, and that she should be remitted to the Supreme Court for her relief; that she should be compelled to reduce her claim for the unpaid allowance to judgment, to exhaust her remedies at law as a judgment creditor and thereafter to bring action in equity for the payment by the trustee, who is now a party before this court. I do' not agree with this litigious contention. This court cannot allow the husband to repudiate a written contract directing payment of his trust income for the
Decreed accordingly.