Mumford v. Murray, 1 Paige Ch. 620

Mumford v. Murray

1 Paige Ch. 620 | New York Court of Chancery | 1829

*621The Chancellor :—The wife is entitled to a reasonable amount out of the property for her support. That amount must also include the necessary provision for her children. *In Steinmitz v. Halthen, (1 Glyn. & Jam. 64,) it was holden that the wife’s equity to a support out of her separate property, for herself and children, attached the moment a bill was filed in respect to it; so that if she died before payment, her children were entitled to a support out of it, to the exclusion of the assignees of the husband, who had been declared a bankrupt.

I see no necessity for proceeding by bill in this case. The fund is in the hands of an officer of the court. And if the wife’s equity did not attach thereon the court would order the receiver to pay it over to the assignees on their petition. The right must be reciprocal, unless there are sufficient grounds laid to authorize the court to direct a more formal proceeding by bill. The rights of both parties in this case may be equally well protected by a reference.

If the wife asks equity here she must do equity; and if she has in her possession, or has appropriated to her use, or the support of herself or her children, any property which belonged to her husband at the time the attachment was taken out against him, she must surrender such property or refund the value thereof to the assignees before she is entitled to the fund in court.

There must be a reference to a master to ascertain what will be a reasonable amount to be allowed the petitioner out of her share of the property, for the support of herself and children. He must also inquire and report what property, which belonged to the husband at the time the attachment issued, is now in the hands of the wife, or has been appropriated by her for the support of herself and children, or otherwise since that time; with leave to the trustees to examine her on oath before the master in relation thereto. All other questions are reserved until the coming in of the master’s report.