Bellamore's Estate, In re

• Decision Date: 19 December 1960
• Citation: 211 N.Y.S.2d 826,27 Misc.2d 118
• Parties: In re ESTATE of Muriel K. BELLAMORE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 826

211 N.Y.S.2d 826

27 Misc.2d 118

In re ESTATE of Muriel K. BELLAMORE.

Surrogate's Court, New York County.

Dec. 19, 1960.

Max Solorsky, New York City, for petitioner Helen P. bellamore.

Matthew W. Wood, New York City, individually and with respondents Hanover Bank as executors and trustees.

JOSEPH A. COX, Surrogate.

This application is made to require the trustees of a trust created by the testator's will to pay the income of such trust pursuant to an assignment executed by the income beneficiary. The petitioner for this relief is the wife of the income beneficiary and the assignment was made in connection with an action instituted by the wife against her husband and as an adjustment of the husband's obligation to support his wife and children. The assignment is in fact part of a separation agreement.

This situation is not novel and the applicable law has been stated in a number of judicial decisions including Matter of Littauer's Estate, 285 App.Div. 95, 135 N.Y.S.2d 582; Matter of Newman's Estate, 17 Misc.2d 578, 187 N.Y.S.2d 934; and Matter of Yard's Estate, 116 Misc. 19, 189 N.Y.S. 190. The cited decisions are authorities for the fact that enforcement of this assignment would not contravene Personal Property Law, § 15 and the further fact that the trustees will be protected by a judicial direction to them that the assignment be recognized.

The trustees raise a question as to the identity of the assignee and it does seem that the assignment is somewhat vague in this respect. The instrument designates an individual and a firm of attorneys as the payees under the assignment, in trust capacity, and permits such payees to be changed by written designation in a manner prescribed in the instrument. Accordingly the trustee will be required to recognize the assignment and comply therewith only after a particular individual or individuals, rather than an unincorporated firm, shall be designated as payee or payees pursuant to the terms of the agreement.

The trustees also raise a question as to whether the agreement can be regarded as one for support and maintenance if it is the fact that the assigned amounts may be used by the payee-trustee for the payment of bills incurred for luxuries as distinguished from usual living expenses. This question could require further exploration of the facts were the assignment intended as solely for the benefit of the wife and children of the beneficiary but the terms of the agreement, of which the...