In re Stafford — 94 N.Y.S. 194

Majority

p. 194

(105 App. Div. 46.)

In re STAFFORD.

(Supreme Court, Appellate Division, Fourth Department.

May 10, 1905.)

Headnote

1. Exemptions—Premises Bought with Pension Money.

' Under Code Civ. Proc. § 1393, declaring pensions tor military or naval services exempt from execution, land bought by a judgment debtor’s husband with pension money, and conveyed to the judgment debtor, is exempt trbm execution.

p. 195

2. Estates—Merger—Union of Lesser Estate with Fee.

Whether a lease for life becomes merged in the fee when subsequently acquired by the lessee depends upon the intention of the lessee at the time the acquisition is made.

3. Execution—Supplementary Proceedings—Appointment of Receiver. .

Under Code Civ. Proc. § 2464, authorizing the appointment in supplementary proceedings of a receiver of the property of the judgment debtor, whether a receiver should be appointed rests very largely in the discretion of the court, and, while such appointment should be made if the evidence fairly indicates that there is any property applicable to the payment of the judgment, yet there should be no appointment where the judgment debtor has no property applicable to thé judgment, and where it may result in harassing him without any benefit to the petitioning creditor.

Appeal from Special Term, Oswego County.

In the matter of the examination of Helen M. Stafford, judgment debtor. From an order denying the petition of the judgment creditor for the appointment of a receiver, petitioner appeal's.

Affirmed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

F. T. Cahill, for appellant.

Up to and prior to 1883, Helen M. Stafford (then Helen M. Carson) was the owner of certain premises situate in the city of Oswego. In January of that year she conveyed the same to her sister Emma Hunt, taking back from said grantee a lease for life. On the 18th day of January, 1897, said grantee reconveyed said premises by warranty deed to said Helen M. Stafford. The petitioner is the judgment creditor of Helen M. Stafford, having recovered a judgment for $52.60 on the 4th day of October, 1904. Proceedings supplementary to execution were had on said judgment, and the judgment debtor was examined pursuant to the order in said proceeding. An application was made in said proceeding for the appointment of a receiver, which application was denied. The judgment debtor testified that her husband, who was a pensioner, paid out of his pension money the purchase price of the premises which were conveyed to his wife. This being so, the fee of the premises is exempt from levy and execution. Code Cm Proc. § 1393. The petitioner, however, contends that the income from said real estate, by reason of such life lease, can be made amenable to the payment of this judgment. Whether by the union of this lesser estate with the fee of the premises the former was merged in the greater depends upon the. intention at the time the conveyance was made. Washburn on Real Property, vol. 1 (6th Ed.) § 740 et seq.; Gerard on Titles to Real Estate (4th Ed.) p. 192 et seq.; Thomas on Mortgages (2d Ed.) § 383. The record shows that Mrs: Stafford has- been the owner of these premises since the reconveyance to her in 1897, and there is nothing to indicate that there lias been any continuance of the life tenancy as distinguished, from the estate in fee. Pier intention is paramount in the determination of the effect to be given to the uniting of these

p. 196

two estates, and there should be something to indicate that she does still retain a life estate before the possession of the property is túrned over to a receiver. Whether a receiver is appointed in proceedings supplementary to execution rests very largely in the discretion of the court to whom the application is made. Code Civ. Proc. § 2464. The record in this case shows that at the time of the application for the appointment of a receiver the statements of Mrs. Stafford, the judgment debtor, and her sister Mrs. Williams, the former owner of the premises, were taken by the judge with the assent of the attorney for the judgment creditor. What comprised these statements does not appear. In support of the order of the county judge refusing the application for the appointment of a receiver, it is fair to assume that the statements taken satisfied him that there was a merger of these two estates, and that the purchase price of the fee of the premises was paid from pension moneys of the husband. While a receiver should be appointed if the evidence fairly indicates that there is any property applicable to the payment of the judgment, yet there should be no appointment where the proof shows that the judgment debtor has no property applicable to the lien of the judgment, and where it may result in harassing her without any benefit accruing to the petitioner. The order should be .affirmed, without costs.

Order affirmed, without costs. All concur.