Robins v. Jenkins

221 A.D. 838 | N.Y. App. Div. | 1927

Pee Cubiam.

It is clear that the principle of law applicable to this case is that stated in Smith v. Reid (134 N. Y. 568, 575), where it is said: “The rule is well settled that a voluntary conveyance by one indebted at the time is presumptively fraudulent,” and that the property must be held subject to the payment of the debts. The balance, therefore, after paying the debts, belongs to the defendant Jenkins. As Mr. Justice Story put it: “ Satisfy the creditors and the conveyance stands.” (Story Eq. Juris. [5th ed.] § 361.) The judgment appealed from should, therefore, be modified and judgment granted to the plaintiff directing that the amount received from the notes as they fall due shall be deposited with the chamberlain of the city of New York, to be subject to the further order of the court herein or of the Surrogate’s Court of the county of New York, to enable the administratrix, in the event that there be not assets of the estate sufficient to pay the decedent’s debts in full, to charge against said sum the due proportion sufficient to pay the debts of, the deceased as between this sum and any other assets left by the deceased, and thereafter to pay the balance of said sum to the defendant E. Loretta Jenkins, with interest thereon, less the lawfful commissions of the chamberlain of the city of New York, and as so modified affirmed, without costs. Present — Dowling, P. J., Finch, MeAvoy, Martin and O’Malley, JJ. Judgment modified as indicated in opinion and as so modified affirmed, without costs. Settle order on notice.