| N.Y. Sup. Ct. | Jan 15, 1901
This application is made by defendant to vacate a certain levy made by the sheriff upon certain property of the defendant. The warrant was served upon the executors and trustees of the estates of R. Smith Clark and Mary C. Clark, the grandparents of the defendant. It appears that under the wills of his said grandparents a certain share of each of the estates is left to the executors, in trust, to receive the rents, issues and profits, and to apply the same to the use of defendant, and that defendant is entitled to no part of the principal of the estate. It appears that from this source defendant receives about $8,500 per annum, which defendant swears is necessary to the support of himself and family, he having no other property or income. Defendant claims that the income thus payable to him is the income of a trust estate, and is, therefore, exempt from levy under an attachment. Section 644 of the Code provides for the levy by the sheriff, under a warrant of attachment, upon the property of defendant “ not exempt from levy and sale by virtue of an execution.” The income of a trust fund cannot be the subject of a levy upon execution. It can only be reached by a creditor, after exhaustion of his legal remedies, by a suit in equity, and then only the surplus, if there he any, over and above that which is sufficient
Ordered accordingly.