Brothers v. Tiffany , 102 N.Y.S. 1047 ( 1907 )

Lambert, J.:

The complaint in this action alleges the recovery of a judgment by plaintiff against Burnett,Y. Tiffany for necessaries furnished by it with ’the consent of defendant trustees and the return of execution unsatisfied; the bankruptcy of Burnett Y. Tiffany, and the appointment of the defendant Hosmer as. trustee; the death of Charles L- Tiffany, .the probating of his will and the. appointment and qualification of defendants as trustees thereunder ; .the giving by said will to said trustees of certain property, the income from which was tó be applied in their discretion to the use of Burnett Y. Tiffany, and that fhey have been and now are paying the latter $.18,000 annually, the amount fixed by them in'their discretion as proper for his support ; that such sum exceeds the amount necessary-for Burnett Y. Tiffany’s proper support, and that the sum of $3,000-is sufficient therefor, “ and the remainder of the said annual income of $18,00p is surplus income, properly applicable to the payment of the debts of the defendant Burnett Y. Tiffany'; * * *-that there has already accrued of said surplus-income ” a large amount of money remaining in the trustees’ hands and not paid over to Burnett Y. Tiffany; and that the trustees have received and now retain moneys in trust for the use of Burnett Y. Tiffany applicable to the.payment ’ of his debts. The relief asked is (1) for an accounting by the trustees of moneys received in which Burnett Y. Tiffany has an interest; (2) that.such portion of "the $18,000 in excess of the amount determined by the court to be necessary -for his support be applied to the paymént of plaintiff’s judgment; (3) that the. trustees be enjoined from paying over such excess; (4) that a receiver be appointed, and (5) for further relief.

The “ first and separate defense ” of the answer here demurred tp sets forth the death of Charles L. Tiffany leaving a will, which is annexed to and madp a part of the allegation ; the probate of the same and the appointment and qualification of defendants as trustees ; that pursuant, to said will and codicil, in the exercise of their discretion, the trustees fixed upon the sum of $18,000 as the proper amount to be paid Burnett Y. Tiffany annually, and the payment of the balance of the income of the trust property to certain other persons according to the directions of the will and codicil. The will and codicil referred to gives the trustees discretion to pay to Burnett Y. Tiffany such portion of the income as they deem necessary for his proper support.

' The judgment creditor seeks to reach a surplus income in excess ' of the amount necessary for the support of Burnett Y. Tiffany. If the latter, under the will and codicil, was to receive the whole income of the trust estate, there is no question but that plaintiff’s judgment could be satisfied out of such surplus, were any shown to exist. ( Williams v. Thorny 70 H. Y. 270; Tolies v. Wood, 99 id. 616.) Following the reasoning adopted in Matter of Hoyt (116 App. Div. 217), it is evident that the income from the trust estate came into the hands of the trustees for the benefit of Burnett Y. Tiffany primarily, and could be transferred to him, if in the opinion of the trustees the entire income was necessary for. liis proper maintenance. If, however, they deemed that a portion only should be used for this purpose, his right to the excess over such portion was liable to be divested, and the amount remaining to be paid to certain other persons. Here we have an allegation that there are certain moneys in the trustees’ hands belonging to Burnett Y. Tiffany, and not necessary for his support, out of which a judgment for necessaries, furnished him with the knowledge and consent of the trustees, should be satisfied. The facts alleged state, in my opinion, a good cause of action.

The defense demurred to, that the trustees have fixed upon a certain sum as the proper amount to be paid Tiffany, and have turned over the balance to the persons entitled thereto, appears to me to constitute no defense to such a'cause of action. The defense'■ does not allege that the whole $18,000 has been paid Tiffany as fast as it accumulated1, and that no part thereof remains in their possession which would disclose a complete disposition of the trust income ; nor can such' an allegation be read into'the portion of the complaint which shows that the' trustees have been and 'noware paying Tiffany this amount. On the contrary, the latter allegation implies that the income is gradually accumulated, and affirmatively shows its disposition at intervals. A portion of whatever income, if any, shown to be held by the trustees, may or may not be' surplus, and is a matter to be determined upon the trial of the action.

Bor these reasons the interlocutory judgment sustaining the demurrer should be affirmed, with costs, with; leave to the defendants to amend their answer within twenty days.

Patterson, P. J., Laughlin and Houghton, JJ., concurred; IngraHam, J., dissented.