75 N.Y.S. 728 | N.Y. App. Div. | 1902
The plaintiff, a judgment creditor of the defendant Morse, commenced this action as a judgment creditor’s action to reach the. income of certain trust funds held by the defendant, the United States Trust Company, as trustee under the last will and testament of' Phoebe J. Cross, deceased. The complaint alleges the recovery of judgment against the defendant Morse and the return of an execution unsatisfied; that Phoebe J. Cross, the mother of the defendant, was a resident of the State of Rhode Island at the time of her death; that the defendant Morse is a beneficiary under the last will
The plaintiff seeks to maintain this action in two aspects; in the
There was a direct attack upon the validity of this trust by the next of kin of the testatrix which was determined in Cross v. United States Trust Co. (131 N. Y. 330). It was there held that in determining the validity of this trust, as well as the competency of the testatrix to make a will, and also the execution thereof, the law of the State of Rhode Island, the domicile of the testatrix, must control; and that if the law of that .State declared this trust valid, it is binding upon us by comity. The trust having been upheld because it was valid by the laws of the State of Rhode Island, we are now asked to apply the income of this trust fund to the payment of the creditors of the beneficiary, because if this trust fund was in Rhode Island and the plaintiff had obtained a judgment against the beneficiary there, the courts of the State of Rhode Island would so apply it.
The question presented in this action, however, is not as to the validity or enforcement of the trust. By its terms, the income is to be paid to the defendant, and the appropriation of such income to a judgment creditor of the beneficiary would be a violation of the terms of the trust, and not an enforcement of it. Whether or not there shall be such an appropriation must depend upon the laws of the State in which the application to reach the fund, situated as this is, is made; and the question is whether the income of the trust property situated here is applicable to the payment of a judgment against the person to whom the income is payable. The law of this State has provided that under certain conditions the income of a
Applying the law of this State, it would seem that a creditor’s bill cannot be maintained. Judgment creditors’ actions are regulated by sections 18Y1 to 1819 inclusive of the Code of Civil Procedure. By section 1819 it is provided that “ this article does not apply to a case * * * ' or any money, thing in action, or other-property held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor.” The property held in trust for the defendant is for a person other than the person who» created the trust. Nor do we think that the court in this case can,
There is, however, a provision of the statute of this State under which the plaintiff could maintain an action to have the surplus of such income, over and above that neceásary for the education and support of the beneficiary, applied to the payment of the judgment (1 R. S. 729, § 57, now re-enacted as part of the Real Property Law, Laws of 1896, chap. 547, § 78); and it was under the provisions of this statute that the case of Williams v. Thorn (70 N. Y. 270) was decided. The allegations of this complaint are not sufficient to justify a proceeding under this statute. There are no allegations as to the amount of the income necessary for the education and support of the beneficiary and of those subject to the beneficiary, or that there is a surplus over and above such an amount.
"We think, therefore, that the judgment appealed from was right and should be affirmed, with costs, with leave to the plaintiff within twenty days to serve an amended complaint upon payment of costs in this court and in the court below.
Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.
Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.