88 N.Y.S. 4 | N.Y. App. Div. | 1904
No claim is made in this court that the defendant is entitled to commissions or pay for services performed for the estate which can be taken by a receiver for the benefit of the plaintiff, nor is there proof that any equitable or legal claim for commissions or services exists.
Plaintiff claims that the income from the real and personal property left by the defendant’s father to his executors in trust is subject to be taken by the defendant’s creditors. In this he is mistaken. The intention of the testator was, first, to secure the income for the personal support of Ms son, the defendant. The payment and application of the income toward such support is left to the executors, and any amount remaining in their hands continues trust property: If the' income exceeds a reasonable amount for such support, such excess of income is the property of the children of the defendant.
Ordinarily, an order appointing a receiver in supplemental proceedings will not be reversed on appeal. If the defendant denies that he has any property, but there remains a real controversy or doubt about the correctness of his claim, the appointment of a receiver should not be disturbed, but no reason for the appointment of a receiver can exist if it is clear and certain that there is nothing to receive. If property is subsequently acquired it can be reached by execution, or, if necessary, a new proceeding can be instituted. Where there has been an unrestricted examination
All concurred.
Order reversed, without costs.