Hann v. Van Voorhis

15 Abb. Pr. 79

• Court: New York Supreme Court
• Decided: December 15, 1873
• Status: Published

Opinion

Brady, J.

The right of the plaintiff to the relief sought upon this motion is controlled by the case of Campbell v. Foster (35 N. Y., 361), and a further discussion of the question is unnecessary. The consideration of the provisions of the revised statutes therein in reference to trusts, and of the adjudged cases, leads to the conclusion that no part of an income such as that of the defendant can be reached by a judgment creditor, unless it has accumulated beyond the wants of the cestui que trust, and is in surplus by accumulation arising from the failure of the latter to spend or appropriate, or from some other cause. It is in other words only the surplus beyond the sum necessary for the education and support of the cestui que trust, after it is ascertained that it is not wanted and has not been applied to his support as it became due, that is liable to the claims of his creditors. There is no such fund or surplus in this case.

Motion therefore denied.