
    The Aultman & Taylor Company, Respondent, v. Frederick J. Syme and Mary Allen Syme, Appellants.
    
      Creditors suit — what is not a fraudulent convey anee as to creditors—an execution issued after five years without leave will not sustain a creditor’s suif. .
    
    An assignment by a husband to his wife, in payment of an indebtedness, of á legacy largely in excess of the debt, will not be set aside as being fraudulent as to creditors to the extent of such excess where it appears that at the time the husband had ample property to pay the only other indebtedness. that he is shown to have had and there exist no other circumstances on which to base a charge of fraud.
    An execution issued without leave of the count after the expiration of five years from the entry of the judgment will not support a creditor’s suit.
    ' Appeal by the defendants, Frederick J. Syme and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1897, upon .the decision of the court rendered after a trial at the New York Special Term.
    
      E. F. Brown, for the appellants.
    
      Wm. H. Blymyer, for the respondent.
   Patterson, J.:

This is an action, by a judgment creditor to set aside a transfer or assignment made by Frederick J. Syme, its debtor, to his wife, of. all the assignor’s interest as a residuary legatee under the will of David H. Syme. The assignment referred to, which it was sought to set aside, so far as may be necessary to enable the plaintiff to realize its judgment from the assigned property, was made at the city of New York on the 18th day of September, 1890, and its recitals declare that both the assignor and the assignee are of the city, county and State of New York. David H. Syme was a resident, at the time of his decease, of the city of New Orleans, in the State of Louisiana. His will was proven in Louisiana, and the distribution of 'his estate was -had in that State. By one of it's provisions he bequeathed to Frederick J. Syme the sum of $25,000 in certain securities. The will was filed in the court of Louisiana, in August, 1890, and it appears by the account of the executors of his estate that Frederick J. Syme received $20,100 of the particular legacy. The evidence also discloses that, under the will of one John Syme, the defendant Frederick J. Syme was entitled to a legacy of $10,000, that will being also filed in the court of Louisiana in the. month of May, 1890. Frederick J. Syme was also, as stated, the residuary legatee under the will of David Syme, and it was his interest as a residuary legatee that passed to his wife under that assignment assailed in this action. There was a consideration for tliat assignment, namely, the sum of $10,000, moneys of his wife, which the assignor had received from her. That much of the consideration of the assignment is not attacked, nor is it claimed by the , plaintiff that it was incompetent for the assignor to pay his indebtedness to his wife out of his interest in the residuary estate. The ' action proceeds upon the theory that the instrument of assignment is fraudulent as to creditors to the amount of the excess of the residuary estate over the debt due from the husband to the wife. The parties to the instrument of assignment being residents of the State of R'ew York, its validity, like that of all other contracts, is to be determined by the law of the place at which it was made. While the administration and the disposition of the residuary estate in the hands of the executors of David IT. Syme is to be regulated and controlled by the laws of Louisiana, yet the contract being made in this State, its validity must be determined by our laws. Certainly the assignment is good to the extent of $10,000. That is not disputed. It can be avoided, if at all, as to the surplus of the interest assigned, only upon the establishment by competent proof of such facts as would authorize the setting aside-of any conveyance made with intent to hinder, delay and defraud creditors. There is no adequate proof in this case of any intention on the part •of the wife to participate in a fraud, nor is there sufficient evidence of any intent on the part of the assignor to dispose of his residuary interest in this estate to prevent its being reached by his creditors. There is nothing to show that at the time of the assignment, namely, in September, 1890, Frederick J. Syme' was indebted to any one but this plaintiff. There is no evidence that he made any general or particular disposition of property to his ivife or any one else, other than of this residuary interest in his uncle’s estate. It is not shown that, at the time that transfer was made, he knew the extent of that residuary interest, nor is it shown that .by the disposal of that interest he left himself without property with which to pay all indebtedness he might have owed.:' He still remained' the owner of a particular legacy under the will of David Syme and of a particular legacy under the will of John Syme, and there is no act nor thing appearing in the record from which an inference can be drawn that he was not in such a position, as would authorize him to make, in addition to the payment of his wife’s debt, a gift to her of the excess of his interest in. the residuary estate of David Syme. Here there are no circumstances beyond the mere fact of the execution and delivery of the instrument of assignment and the apparent disproportion between the consideration and what was ascertained to be the amount of the interest assigned, on which to predicate a charge of fraud. It also appears, inferentially at least, that Frederick J. Syme retained a large amount of property, consisting of the particular legacies,, vastly more in amount than enough to pay the plaintiff’s claim, which is the only debt we are informed of as existing at the time the assignment was made.

Upon the merits of the case, therefore, we must hold that the proof was insufficient to authorize the judgment; but in addition it must be considered as the settled law of this particular case that the plaintiff was not in a position to bring this action. The execution which was returned unsatisfied and made the basis of this suit was issued more than five years after the judgment was entered, and without the permission of the court being obtained. It is unnecessary to discuss the point as to whether that was a mere irregularity or not. It was decided by the General Term of the Supreme Court as to this particular execution that it could not be made the basis of an order for an examination in supplementary proceedings* it not-having been issued until after the expiration of the proper time and no application to the court having been made; and that, therefore, the court had no jurisdiction. (Aultman & Taylor Co. v. Syme, 87 Hun, 295.) The question seems to have been reargued with the same result. (Aultman & Taylor Co. v. Syme, 91 Hun, 632; 148 N. Y. 755.)

If the execution were not sufficient to support an order of the character referred to, it was not sufficient as a foundation for the creditor’s bill. The same requirement exists as to both the special proceeding and the action. Until all the remedies available under an execution have been exhausted, supplementary proceedings are not available. (First National Bank of Canandaigua v. Martin, 49 Hun, 571.) The adjudication, therefore, of the Supreme Court which declared the execution on the plaintiff’s judgment to be insufficient to confer jurisdiction to support supplementary proceedings-, also .determines that it was insufficient to support the creditor’s bill.

Upon these views, it follows that the judgment appealed from was wrong and must he reversed and the complaint dismissed, with costs.

Van Brunt, P. J., Williams and Ingbaham, JJ., concurred.

O’Brien, J.

(concurring):

Upon this record I think there was sufficient evidence to ' justify the conclusion reached by the trial judge that the assignment as to the amount over $10,000 .was with intent .to defraud. It is useless, however, to spend time summarizing it as I agree that the judgment must fall because of the failure to issue the execution within five years.

Judgment reversed and complaint dismissed, with costs.  