Crawford v. Winston , 54 N.Y.S. 246 ( 1898 )

INGRAHAM, J.

The complaint alleges that the defendants Walker Winston and Lillie Winston were married on or about the 10th day of February, 1890, and subsequently executed articles of separation, a copy of which is annexed to the complaint, and under which the plaintiff and the defendant William A. McQuaid became parties as trustees; that subsequently this respondent commenced an action for an absolute divorce from the defendant Walker Winston in the district court of the territory of Oklahoma, and that a judgment was entered in said action granting to the said Lillie Winston an absolute divorce from the said Walker Winston; that the defendant Walker Winston has paid to the trustees named in the said instrument the sum of money therein required to be paid, and that there is now in the hands of the plaintiff, as one of the trustees, the sum of $75; that the defendant Walker Winston has notified the plaintiff not to pay the same over to the respondent; that the plaintiff is ignorant of his duties in the premises, and cannot ascertain the same without the aid of the court, and therefore asks for instructions as to what disposition shall be made of the money in his hands, and whether the plaintiff and his co-trustee shall collect from the defendant Walker Winston any further sum under the agreement.

The agreement provides that it shall be lawful for the respondent to live separate and apart from her husband, giving to the respondent the sole custody, control, education, and bringing up of the infant child of the parties during her minority; that the defendant Walker Winston shall pay to the trustees the sum of $25 per month, in trust for the said wife, to be used for her support and the maintenance and education of the infant until the said infant shall arrive at age or shall have married. It is not alleged that either of the parties to the instrument has requested the enforcement of the obligations therein contained, or that the respondent has made any demand upon the trustees for the sum of money in their hands, or that any difference has arisen between the parties to the agreement as to the rights of either of the parties under it. There is no doubt as to the proper construction of the instrument itself, and the aid of the court is not required to determine the rights or obligations of the parties under it. The trust has not, by its terms, come to an end; so that a trust fund is in the hands of the trustees for distribution, and no accounting by the trustees is asked for, or would be proper, under the allegations of the complaint. We cannot see that any question is presented requiring the action of the court; nor does the protection of the plaintiff or his co-trustee require an application to the court. The court is simply requested to advise one of the trustees how to act, when there is no allegation of conflicting claims. Nothing is alleged to justify the trustees in submitting the parties to this agreement to the expense and annoyance of a legal proceeding, and we think that the court below correctly refused to entertain the action.

The judgment appealed from is affirmed, with costs. All concur; VAN BRUNT, P. J., in result.