Thompson v. Thompson — 24 N.Y. St. Rep. 108

Majority

p. 108

Amelia T. Thompson, Resp’t, v. Charles Thompson, Resp’t, and Mary T. McConihe, Executrix, etc., of Gilbert G. Thompson, Dec’d, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

1. Trustee-tMay be compelled to make what payment prom income op TRUST ESTATE.

The plaintiff seeks to compel the defendant McConihe to pay to her, out of the income payable to her husband, under the will of her testator, the amount allowed her in a certain divorce action. The defendant Charles Thompson, plaintiff’s husband, appeared, but interposed no defense to plaintiff’s claim. Held, that the defendant must pay the income of the trust estate, as adjudged; that the judgment protects her in paying a portion of it to plaintiff, and that the only persons not hound by the judgment are the judgment creditors of defendant, Charles Thompson.

2. Same—Trusts—To whom trust extends.

By the terms of the will, of which defendant McConihe is executrix and trustee, she is directed to account for and pay over the net income thereof to defendant Thompson until the year 1895, and if she dies before that time, leaving children, then upon further trusts to pay such income to

p. 109

said children until 1895. ITdd, that the trust created for the support of the defendant Thompson extends also, to the support of his wife and child, and that a judicial provision for their support out of the income is a proper application of a portion of the income^ and paramount to the rights of judgment creditors.

Appeal iiom a judgment in favor of the plaintiff entered apon the decision of. the courts iipoil a trial at the Rensselaer ■special term. . , ■

5he plaintiff óM»iB.ecl,''óa the-iDth'dayrci. April, 1888, a of-divoro»-againyt her linsaa-tid,. fee deieisdast,. üíwleo Thompson™ The judgmivith' dizeéteá.the defend*,n-iio pay the plaintiff yearly the sum of §890 for her puppoyi; and that of théíi- child, whose ehstody was awarded her, Ths defendant is entitled, under the will of his deceased father, to fee income, upon an estate valued at §39,344, That income is found m this action to be $1,600 yearly. The defendant, Mary T. McCónih© is the executrix and trasteo cmdei? the will, and has the custody of the estate charged with the payment of said income. The plaintiff seeks, ip tills action, to compel the trustee to pay to her, out of the income payable to her husband, the amount allowed her in, the divorce action. The defendant, Charles ^Thompson, appeared by attorney, but interpose^, no angwef, „ From the judgment in favor of the plaintiff, the trustee appeals.

JT K, Long," for applt; Merritt & By an, for resp3t.

The appellant has no grievance. She is simply directed to pay a portion of the income of the trust estate in her hands to the plaintiff, the wife of the defendant, Charles Thompson, instead of paying it to Thompson himself. The sum directed to be paid is the alimony and allowance awarded by the judgment obtained in an action for divorce by the plaintiff, against her husband, Charles Thompson. In this action the defendant, Charles Thompson, appears by his attorney and suffers default. The appellant must pay the income of the trust estate, and this judgment protects her in paying a portion of it to the plaintiff. The only persons who can claim that they are not bound by this judgment, are the judgment creditors of Charles Thompson. The trial court held, and we think, Íroperly, that the trust created by the wül of Gilbert G. hompson, for the support of Charles Thompson, extends, also, to the support of his wife and child, and that a judicial provision for their support out of the income is a proper application of a portion of the income, and paramount to the rights of judgment creditors. Tolles v. Wood, 99 N. Y., 616 .

Should a judgment creditor hereafter attempt to impeach such provision, the court would extend the necessary protection to the appellant as trustee.

We think the judgment right, and that it should be affirmed.

p. 110

Judgment affirmed; costs of both parties payable out of the fund.

Learned, P. J., and Ingalls, J., concu'r.