Kelsey v. Webb

Chase, J.: No claim is made in this court that the defendant is entitled to commissions or pay for services performed for the estate which can be taken by a receiver for the benefit of the plaintiff, nor is there proof that any equitable or legal claim for commissions or services exists. Plaintiff claims that the income from the real and personal property left by the defendant’s father to his executors in trust is subject to be taken by the defendant’s creditors. In this he is mistaken. The intention of the testator was, first, to secure the income for the personal support of Ms son, the defendant. The payment and application of the income toward such support is left to the executors, and any amount remaining in their hands continues trust property: If the' income exceeds a reasonable amount for such support, such excess of income is the property of the children of the defendant. Ordinarily, an order appointing a receiver in supplemental proceedings will not be reversed on appeal. If the defendant denies that he has any property, but there remains a real controversy or doubt about the correctness of his claim, the appointment of a receiver should not be disturbed, but no reason for the appointment of a receiver can exist if it is clear and certain that there is nothing to receive. If property is subsequently acquired it can be reached by execution, or, if necessary, a new proceeding can be instituted. Where there has been an unrestricted examination [575] of the defendant, and it is clear that the defendant has no vested or contingent interest in any property applicable to the payment of his debts (Hancock v. Sears, 93 N. Y. 79, 81; Bryan v. Grant, 87 Hun, 68,70; Gibney v. Reilly, 26 Misc. Rep. 275; De Camp v. Dempsey, 10 Civ. Proc. Rep. 210, 213; Bradn. Supp. Proc. [2d ed,] 180, 181), and particularly where, in addition thereto, as in this case, the order appointing a receiver was undoubtedly made upon a misapprehension of the creditor’s right to appropriate the income of the trust property to the payment of his debt, and the court has directed a delivery to said receiver of property and money, when the persons to whom the order is directed have neither property nor money to which the receiver is entitled, such order can only be used to harass and annoy the defendant, and it should be reversed. All concurred. Order reversed, without costs.