Hann v. Van Voorhis — 15 Abb. Pr. 79

Majority

p. 79

HANN against VAN VOORHIS.

Supreme Court, First District;

Special Term, December, 1873.

Headnote

Injunction.—Creditors’ Action.—Surplus op Trust Fund.

The surplus arising upon a trust for the benefit of a debtor created by a third person, cannot be reached by an action commenced before such surplus has actually accumulated.

An injunction does not lie to restrain the trustees from expending more than is necessary for support, &c., of the cestui que trust.

Anne R. Hann brought this -action against Barker Van Voorhis, and Elias W., and Maria D. Van Voorhis, alleging that she had recovered judgment, and had issued execution which was unsatisfied, against the defendant Barker ; and that the defendants Elias W. and Maria D. were executors under the will of Elias W. Van Voorhis, deceased, and were trustees for the benefit of the defendant Barker, under a trust to receive the rents and profits of the estate, and pay a part of the same to the judgment debtor semi-annually. She alleged that twenty-seven hundred dollars was payable thus, in each year, and that the sum of six hundred dollars was sufficient for the reasonable support and maintenance of the debtor; and she asked that the trustees be enjoined from paying over to the debtor during the pendency of the action, any part of his income except said sum of six hundred dollars; and that the residue be applied to the payment of the plaintiff’s judgment. At the time of the commencement of the action there was no surplus in the hands of the trustees.

The plaintiff moved for an injunction pending the action.

p. 80

Townsend & Weed, for the motion.

George W. Stevens, opposed ;

Cited Leggett v. Perkins, 2 N. Y. [2 Comst.], 297 ; 1 Rev. Stat., 728; 2 Id., 174 ; Clute v. Pool, 8 Paige, 86 ; 1 Barb. Ch., 727 ; Stewart v. McMartin, 5 Barb., 443 ; Hallett v. Thompson, 5 Paige, 587 ; Campbell v. Foster, 35 N. Y., 361 .

The right of the plaintiff to the relief sought upon this motion is controlled by the case of Campbell v. Foster ( 35 N. Y., 361 ), and a further discussion of the question is unnecessary. The consideration of the provisions of the revised statutes therein in reference to trusts, and of the adjudged cases, leads to the conclusion that no part of an income such as that of the defendant can be reached by a judgment creditor, unless it has accumulated beyond the wants of the cestui que trust, and is in surplus by accumulation arising from the failure of the latter to spend or appropriate, or from some other cause. It is in other words only the surplus beyond the sum necessary for the education and support of the cestui que trust, after it is ascertained that it is not wanted and has not been applied to his support as it became due, that is liable to the claims of his creditors. There is no such fund or surplus in this case.

Motion therefore denied.