
    George A. Bergmann, Respondent, v. Frances L. B. Leavitt, Individually and as Executrix, etc., of Samuel G. Ward, Jr., Deceased, and Marian Low, Appellants, Impleaded with Franklin B. Lord and Henry S. Van Duzer, as Substituted Trustees under the Last Will and Testament of George Cabot Ward, Deceased.
    
      judgment creditor a action against the executrix and sole heir of the deceased debtor and against the trustees of a trust for the hem-fit of the debtor to compel a discovery and to have the judgment declared a first lien on the interest of the heir — statutes regulating such action — when interest in trust inalienable — when such creditor has only rights of debtor at time of judgment —proper remedy.
    
    Judgment affirmed, with costs, on the opinion of "the court below (Bergmann v. Lord, 51 Misc. Rep. 213), with leave to defendants to withdraw demurrer and to answer on payment of costs in this court and in the court helow. Order-filed.
   Present'—O’Brien, P. J., Ingraham, McLaughlin, Clarke and Houghton, JJ.; Ingraham and McLaughlin, JJ., dissented. Appeal from interlocutory judgment overruling demurrer to complaint.

Ingraham, J. (dissenting):

This is a creditor’s action to enfqrce a judgment recovered by the plaintiff against Samuel G. Ward, Jr. The complaint alleges that on the 4th day of May, 1887, George Cabot Ward died at the city of-New ■ York, leaving him surviving his widow, Frances Ward, and his only children the defendant Marian Low and the judgment debtor Samuel G. Ward, Jr., now deceased, and leaving a last will and testament which was duly admitted to probate in the county of" New York; that by this last will and testament he left to his executors as trustees the sum of §50,000 in trust, to invest the same and to collect and apply, the net rents, issues and income thereof to the use of his wife during her natural life, and upon and after her "death, he gave and bequeathed the capital of the said fund to such of his children as should survive him, and to the issue of any one who should die before him, leaving issue surviving; that the trustees set apart various securities described as constituting this trust, which securities'are now held by the defendants Lord and Van Duzer as substituted trustees under the said will of George Cabot Ward; that the plaintiff recovered a judgment in the Supreme Court of this State against Samuel G. JYard, Jr., on the 27th day of October, 18.94, for the sum of §4,355.06; that execution was issued on said judgment on the 27th day of October, 1894, which was returned wholly unsatisfied on the 3d day of December, 1894; that Frances M. Ward, the widow of the testator, is still living; that on the 16th day of November, 1900, the judgment debtor, Samuel G. Ward, Jr., died in the State of New Jersey where he was then a resident, leaving a last will and testament which was duly admitted to probate in the State of New Jersey, and letters testamentary were issued thereon to his widow Frances L. B. Ward, who thereupon duly qualified as such executrix, and ever since has been and still is acting as sole executrix of the said last will and testament of said Samuel G. Ward, deceased, in New Jersey; that no ancillary letters testamentary or letters of administration on the estate of said judgment debtor have been issued in the State of New York; that by his last will and testament the said Samuel G. Ward, Jr., the judgment debtor, gave, devised and bequeathed all his property, both real and personal, to the defendant Frances L. B. Leavitt; that at the time of his death, as well as for more than seven years prior thereto, the said judgment debtor, Samuel G. Ward,, Jr., was a resident of the State of New Jersey. The complaint demands judgment that the judgment obtained against Samuel G. Ward, Jr., be adjudged to be a first lien upon the interest of the defendant, Frances L. B. Leavitt, formerly Frances L. B. Ward, individually and as executrix of the last will and testament of Samuel G. Ward, Jr., in the said legacy of $50,000; that the defendants Franklin B- Lord and Henry S. Van Duzer, as substituted trustees under the last will .and testament of George Cabot Ward, deceased, be directed to come, into this court and make discovery concerning the nature and value of the securities in which said legacy of $50,000 is held and set apart into two equal parís securities and funds in .which said legacy and the accretions of the capital thereof are held; that the interest in the said legacy of $50,000 and the accretions of the capital thereof of the defendant Frances L. B. Leavitt, formerly Frances L. B. Ward, individually and as executrix of the last will and testament of Samuel G. Ward, Jr., deceased, be sold to the highest bidder at public auction upon such notice and by or under the direction of a re. ei-ver, or of such other appointee of this court as the court should deem proper, and that such receiver or other appointee of this court be directed to convey to the purchaser thereof a full and complete title thereto and to pay to the plaintiff or his attorney the net proceeds received therefor, less his reasonable fees and necessary disbursements, .to the satisfaction of or on account of-the plaintiff’s aforesaid judgment, the interest thereon and the costs' and expenses of this action; and that the defendants Franklin B. Lord and Henry S. Van Duzer and their successors be ordered and directed, upon the death of the said Frances M. Ward, to pay over and deliver to the purchaser of the aforesaid interest in said legacj^ and the accretions thereof of the defendant Frances L. B. Leavitt, the securities and funds in which such interest may be held at the time of the death- of said Frances M. Ward, and for other and further relief. To this complaint the defendants Leavitt and Low demurred upon the ground that the-cóurt had not jurisdiction of the subject of the action and that, the complaint does not state facts sufficient to constitute a cause of action. This demurrer was overruled at the Special Term, and the defendants appeal. Judgment creditors’ actions were regulated by the Revised Statutes (l R. S. 730, §§ 38, 39). These provisions were re-enacted in sections 1871, 1873 and 1879 of the Code of Civil Procedure. Section 1871 provides that -“Where an execution against the property of a judgment debtor, issued out of a court of record,, as prescribed in the next section, has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor and any other person to compel the discovery of any thing in action, or other property belonging to the judgment debtor, and of any money, thing in action, or other property due to him, or held in trust for him; to prevent the transfer thereof, or the payment or delivery thereof, tó him, or to any other person; and to procure satisfaction of the plaintiff’s demand, as prescribed in” section 1873. SectionT873 provides that “the final judgment in'the action must direct and provide for the satisfaction of the sum due to the plaintiff, out of any money, thing in action, or other personal property, belonging to, or due to the judgment debtor, .or held in trust for him, which "is discovered in the action, whether the same might or-might not have been originally taken, by virtue of an execution.” Section 1879 provides that “This article does not apply to a case where'the judgment debtor is a corporation, created by or under the laws of the State. Nor does it authorize the discovery or seizure of, or other interference with, * * * any money, thing in action, 'or other property, held in trust for a judgment debtor,, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor.” Section 3 of the Personal Property Law (Laws of 1897, chap. 417) provides that “the right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply i.t to the use of any person, can not be transferred by assignment or otherwise, but the right and interest of the beneficiary of any other .trust in personal property-may be transferred.” The trust created by this will was. clearly a trust to receive the income of personal property, and the judgment debtor was a beneficiary who could enforce the performance of that trust in equity. He was not entitled to receive the rents and profits during the continuance of the trust, but was entitled to receive the remainder upon the termination of the trust. It is clear that the relation of trustee and cestui que trust existed. I assume it would not be claimed-that upon the death of the life beneficiary (the testator’s widow) either of his children to whom he bequeathed the trust fund upon the death of his wife, could have maintained an action at law to recover from the trustee the corpus of the trust fund. It must be conceded that this judgment debtor did not have at the time of his death, nor have his personal representatives or legatee now, a right to call these trustees to account for the trust funds in their possession. By the provisions of section 1879 of the Code, the provision which authorized a judgment creditor to bring such an action did not apply and it was, therefore, the intention to restrict the right to file a bill in equity by a j udgment creditor to require a trustee to account for property held in trust for a judgment debtor, to a case where the trust was created by the judgment debtor. The respondent, however, bases his right to maintain this action upon the proposition that while the trustees have in their possession the $50,000 fund, they hold it in trust, not for the judgment debtor, but for the life tenant only, and that on the death of the life beneficiary the trustees will become mere stakeholders and will not then hold the fund in trust. It is a familiar principle that personal property bequeathed to a trustee in trust vests in the trustee the property subject to the trust and that the interest of a beneficiary in such property is to call the trustee to account in equity. In Schenck v. Barnes (156 N. Y. 816) both in the prevailing and the dissenting opinions it was recognized that a trust created in favor of a judgment debtor could not be reached in equity for the payment of a debt. Thus, Judge Bartlett says: “ A trust created by a debtor and under which he is the beneficiary is not affected by the provision of the Revised Statutes (1 R. S. p. 780, § 68) which prohibits a person beneficially interested in a trust for the receipt of the rents and profits of lands from assigning or disposing of the same. The policy of this statute is clear when applied to trusts created by third parties, but is without force when the debtor creates the trust.” Judge Gray, concurring, says: “The statutory provision, relied upon as affording a general protection .to all'beneficiaries irrespective of the manner of the creation of the trust, does not when fairly read imply a trust founded by the beneficiary himself. That ‘ no person beneficially interested in a trust for the receipt of rents and profits of land can assign or in any manner dispose of such interest,’ not only imports by the language that the founder of the trust and the beneficiary are two different persons; but such is the meaning required by the policy of the law._ * * * The principle which underlay the statutory provision, "making the interest of the beneficiary in a trust created by another inalienable, was that of affording protection to a provision which, in theory of law, had been made for the helpless, the unfortunate or the improvident. That is a j ust principle and one which the policy of the law sanctions. The creditor cannot complain if he is unable to reach the estate of his debtor under a trust created in the property of a third person.” This principiéis clearly expressed by Mr. Justice Cullen, delivering the opinion of this court in the second department, in Rhodes v. Caswell (41 App. Div. 339), in which he says: “ The rule in cases of personalty and in those of realty is not the same. ‘ If, however, the subject-matter of the. gift to trustees is personal estate, the whole legal interest will vest in them without words of limitation. They may generally dispose of personal estate absolutely, being compelled to account for it.’ (Perry Trusts, §318.) * * * In trusts of this character we think it must be considered that the whole title to the trust fund is in the trustee and that all the remaindermen have is the right to an account.’L In Lockman v. Reilly (95 N. Y. 64) this principle was applied as relating to real estate acquired by an executrix upon the foreclosure of a mortgage belonging to the estate, and Judge Rapallo there said: “ In the present case the effect of the conveyance to the executrix "was to make the land in her hands take the place of the mortgage, as personal estate, and she was liable to account for it as such. * * * It did not belong to the testator when the will took effect, and the beneficiaries under the will never acquired any direct estate or interest whatever, legal or equitable, in the property as land. ■ They only had the right to require the executors to account for it as for any other item of personal estate in her hands as executrix. The entire legal title.was vested in her and she represented the equitable interests of those who were thus entitled to call her to account.” The whole title to this property, therefore, vested in the trustees, and the interest of the beneficiaries, "whether for life or in remainder, being to compel the trustees to account in equity, the plaintiff, b)r virtue of its judgment against one of those interested in the estate, became entitled to the same rights to be enforced in a judgment creditor’s action as his judgment debtor had when the action was commenced. As a judgment creditor he could not maintain this action to reach property held in trust for the judgment debtor, for that the statute which authorized a judgment creditor’s action expressly forbids. - The judgment debtor had no right to call upon the trustee to account, for his interest in the trust property was future only, and under the express provisions of the instrument creating the tiust the ' judgment debtor was entitled to no interest in the trust property until the death of the testator’s widow. Upon the death of the testator’s widow this judgment debtor would then have a right to call upon the trustee to account for the trust funds in which he would be entitled to a moiety; and assuming that when that right accrued it could not be enforced by a judgment creditor, "as the right does not now exist, the court has no jurisdiction at the request of a creditor, to do what the debtor could not do. Whether or not a judgment creditor could sell under an execution any right of his judgment debtor in personal property held in trust for him, and by such a sale acquire a right to enforce the trust, when that right vested in the judgment debtor, it is not necessary to decide. The plaintiff here appeals to a court of equity to reach assets of the estate of his judgment debtor equitable in' their nature and which he cannot reach by execution. The question is whether, under the facts alleged, such an-action.can be maintained. No obstacle has been created by the judgment debtor which prevents a creditor from reaching his property which the aid of a court of equity is invoked to set aside, but upon the facts showing that at some future time the judgment debtor will have a right to call a trustee to account for property in his hands to which the judgment debtor will then be entitled, no cause of action is alleged which justifies the present interference of the court. If this property were real, estate, and not personalty, a remainder "would vest in the jndgment debtor which the creditor could sell under execution. It would not, I think, be claimed that in such a case a court of equity would assume jurisdiction to sell such a vested remainder; and assuming that the position-of the plaintiff is correct, that his judgment debtor had such a vested remainder,, which was subject to the payment of the judgment, the remedy of the creditor would be to proceed under his execution to sell the debtor’s property or, in supplemental proceedings, to acquire title to the judgment debtor's interest in this fund. There is nothing -that makes application to "a court of equity necessary. If, on the other hand, the title to the whole trust property vests in the trustee, the judgment debtor’s interest therein is to compel the trustee to account when he has a right to a portion of the trust funds. As the time has not arrived when the debtor could enforce the trust, the right of a creditor to apply to a court of equity to enforce the trust must be postponed until the debtor has such a right. Upon no aspect of the case, therefore, as I view it, Will a court of equity now assume jurisdiction. It follows, therefore, that the complaint alleges no cause of action and that the judgment-appealed from must be reversed, with costs, and the demurrer sustained,- with costs, with leave to the plaintiff to amend the complaint upon payment of costs in this court and in-the court below. McLaughlin, J., concurs. 
      
      This statute was amended by chapter 87 of filie Laws of 1903.— [Rep,
     
      
       Code Civ. Pi-oc. chap. 15, tit. 4, art. 1.— [Rep.
     
      
      3 R. S. 173, 174, §§38, 39.—[Rep.
     