North American Trust Co. v. Aymar

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 B. Smith Clark and Mary C. Clark, the grandparents of the defendant. It appears that under the wills of Ms 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 estaté. 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 Mm 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 be any, over and above that which is sufficient for the proper support of the cestui que trust, can be reached. Brewster v. Power, 10 Paige, 562; Williams v. Thorn, 70 N. Y. 270 ; Graff v. Bonnett, 31 N. Y. 9 ; Salsbury v. Parsons, 36 Hun, 12 . My attention has not been called to any decision where the right to levy an

Ordered accordingly.