Wetmore v. Wetmore

• Decision Date: 26 May 1896
• Citation: 149 N.Y. 520,44 N.E. 169
• Parties: WETMORE v. WETMORE et al.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 520

44 N.E. 169

WETMORE

v.WETMORE et al.

Court of Appeals of New York.

May 26, 1896.

Appeal from supreme court, general term, First department.

Action by Annette B. Wetmore against Sarah Taylor Wetmore, individually, and as trustee under the will of Samuel Wetmore, deceased, and another, to subject the income of a trust fund to the payment of a judgment for alimony. A judgment for plaintiff was affirmed by the general term (29 N. Y. Supp. 440), and defendant appeals. Modified.

S. P. Nash, for appellant Sarah Taylor Wetmore.

G. I. Whitehead, for appellant William B. Wetmore.

Flamen B. Candler, for respondent.

HAIGHT, J.

This action was brought to obtain a judgment applying the accumulated income of a trust estate created for the benefit of the defendant William B. Wetmore in satisfaction of the plaintiff's judgment for alimony due, and which may accrue to her in the future. The plaintiff was his wife, and on the 1st day of April, 1892, obtained a judgment of absolute divorce in the supreme court, which required him to pay her, as alimony, the sum of $3,000 per year, and the further sum of $1,000 per year for each of her three infant children until they should respectively become of age. To secure such payments he was required to give a bond in the penal sum of $50,000, with two sufficient sureties. At the time of entering the judgment, he resided in the city of New York, but shortly thereafter removed to the state of New Jersey, and ever since has remained absent from this state, and has not given the bond required by the judgment, nor paid any of the alimony. After the sum of $4,500 of the alimony had become due and payable, a judgment was entered against him in favor of the plaintiff for that amount, on which an execution was issued and returned unsatisfied. Proceedings were then instituted to sequester his property found within the state, but none was discovered, and all attempts to collect the alimony due, either by action or proceedings, failed. Trust Co. v. Wetmore, 67 Hun, 9, 21 N. Y. Supp. 746.After exhausting the remedies given the plaintiff by law, this action was commenced, and the chief question brought up for review is as to the jurisdiction of the court to award the judgment appealed from. It is claimed that it subverts, and, in effect, abrogates, the provisions of the will of Samuel Wetmore, made for the support of his son, the defendant William B. Wetmore. Samuel Wetmore was a resident of the city of New York, and on the 6th day of March, 1885, died, leaving a last will and testament, in which, among other things, he gave and bequeathed to his executors $100,000 upon trust, to keep the same invested, and collect the profits therefrom, and to apply the net income, from time to time, as it should accrue, to the use of his son so long as he should live. By the eighth clause of his will he directed that ‘no person for whose benefit any trust is hereby created shall have power to anticipate or to dispose of any income directed to be paid or applied to the use of such person until the same shall have fully accrued and become payable to such heir, and the trustees of said respective trusts are empowered and requested to disregard and defeat every assignment or other act in contravention of this clause in my will.’ By the ninth clause he provided: ‘I declare that this, my will, and every part thereof, is made with reference to the present existing laws and statutes of the state of New York relating to trusts and trust estates, and the disposition of personal estates by will or legal distribution, and without regard to the laws and regulations of any state or country where I may happen to be at the time of my decease, or where any portion of my estate may be situated.’ Section 57 of the Revised Statutes, with reference to uses and trusts, provides that, ‘where a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person in the same manner as other personal property which cannot be reached by an execution at law.’ It has been held that this provision of the statute is equally applicable to a trust created to receive and pay over the income of personal property, and that an action may be maintained by a judgment creditor, after the return of an execution unsatisfied, to reach the surplus income, beyond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent upon him. Williams v. Thorn, 70 N. Y. 270;Tolles v. Wood, 99 N. Y. 616, 1 N. E. 251;Graff v. Bonnett, 31 N. Y. 9;Sillick v. Mason, 2 Barb. Ch. 79. Is the plaintiff such a creditor? As we have seen, a judgment has been entered in her favor for the alimony that had become due and payable. She is, therefore, as to that amount, a judgment creditor, and, as such, entitled to avail herself of all the remedies given by the statute. It is claimed that this judgment was irregularly entered. Its regularity is supported by the general terms. Miller v. Miller, 7 Hun, 208; Lansing v. Lansing, 4 Lans. 377; Code Civ. Proc. § 1240. But this question we do not consider now before us for determination. If the judgment was entered irregularly, or without authority, the judgment debtor should avail himself of appropriate remedies to rid himself therefrom, for judgments ordinarily will not be annulled in collateral actions, where they are incidentally brought in question. Inasmuch as the judgment entered for alimony past due does not cover all of the alimony that has accrued and is provided for in the judgment entered in this action, it becomes necessary to determine the effect of the judgment in the divorce action awarding alimony to the plaintiff.

In Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826, almony had been awarded to an innocent wife, as incidental to a decree of divorce in her favor, for her support and maintenance. It was held that the awarding of alimony was not the enforcement of a debt due to the wife from her husband, but was founded upon the marital obligation of support, from which he was not relieved by the decree. Its allowance is measured by the court, and is made specific, and while, in one sense, it is the property of the wife, it is a specific sum, provided for a specific purpose, created by equity, having the protection of equity, and consequently will not be applied in the payment of debts contracted by her prior to the decree. It will thus be seen that the awarding of alimony is not on account of any debt due and owing from the husband to the wife, but that it is based upon a duty devolving upon the husband to support her, and that in awarding judgment against him the court determines the amount necessary for such support, and requires the amount so fixed to be paid to her. His duty is thus determined, and from that time on he is, in effect, a debtor, owing his wife the amount adjudged and determined by the decree. While such amount is, in effect, the property of the wife, yet, it, being...