
    Stokes v. Ammerman et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    1. Trusts—Powers of Trustee—Judgments.
    A person who is appointed trustee, and takes from his predecessor an assignment of the trust-estate, takes the legal title to a judgment in favor of his predecessor as trustee, and has the right to sue upon it as a judgment creditor.
    2. Life Insurance—Rights of Creditors.
    Under Laws N. Y. 1810, c. 80, as amended by Laws 1858, c. 187, and Laws 1870, c. 277, making the insurance on the husband’s life for the wife’s benefit exempt from the husband’s debts, but providing that, when the premium paid in any year shall exceed $500, the exemption shall not apply to so much of the premium as shall exceed $500, an action by a creditor for such excess can be maintained during the husband’s life-time.
    Appeal from special term, Kings county.
    Action by Stephen B. M. Stokes, as sole trustee for the benefit of Mary A. Hewett, under the last will and testament of Caroline L. Stokes, deceased, against Richard Ammerman, Eleanor Ammerman, Frances TI. Walker, impleaded with the Equitable Life Assurance Society of theUnited States, to recover the excess over $500 a year paid by Richard Ammerman as premium on a policy of insurance on his life in favor of his wife, Eleanor Ammerman. Defendants appeal from an order overruling their demurrer to the complaint.
    Argued before Barnard, P. J., and Dykman, J.
    
      Bristow, Peet & Opdyke, (David Willcox and L. E. Opdyke, of counsel,) for appellants. Stephen B. M. Stokes, pro se.
    
   Barnard, P. J.

The complaint states facts which make a good cause of action. The plaintiff is now the sole trustee under the last will and testament of Caroline L. Stokes, deceased. The defendant Richard Ammerman was once one of the trustees under that will, but, for waste of the funds, was permitted to resign, and the remaining trustees recovered a judgment against him for the amount of such waste and misappropriation of the trust funds. This judgment was recovered on the 5th of November, 1886, and filed on the same day in the clerk’s office of the city of New York. Execution was at once issued, but was returned unsatisfied. The amount of the judgment was $4,-537.58, with interest from February 1, 1873. The plaintiff was appointed sole trustee in 1881, and not only took the trust-estate by force of the appointment, but took an assignment of the estate from the old trustee. The plaintiff has the legal title to the judgment, with power to sue upon it in his own name as trustee; and this makes him a judgment creditor of the defendant, in legal signification. .

In 1871, the defendant, Eleanor Ammerman, caused her husband, the judgment debtor, to be insured in the Equitable Life Insurance" Society for $20,-000 for her benefit, if she survived her husband. ,The application was made by the debtor, and he has paid out of his property and funds over $500 in yearly premium for each year. The husband and wife are still living. It is not necessary that the husband be dead, and that the wife survive, to give the creditor a right of action for the excess. The debtor’s money has been put into the policy. Chapter 80 of Laws of 1840, and the amendatory acts (chapter 187, Laws 1858; chapter 277, Laws 1870,) make the loss payable to the wife free of creditors’ claims in ease she survives her husband. Then follow the words which permit this action: “But, when the premium paid in any year out of the property or funds of the husband shall exceed five hundred dollars, such exemption from such claims shall not apply to so much of said premium so paid as shall be in excess of five hundred dollars; but such excess, with the interest thereon, shall inure to the benefit of his creditors.” Under this law the premium paid would all be subject to claim of creditors. The law only exempts $500 of yearly premium. In Baron v. Brummer, 100 N. Y. 372, 3 N. E. Rep. 474, which was a precisely similar action to this one, the court of appeals held that payments in excess of $500 could not be reached by a creditor whose debt was contracted after the payment of the premiums sought to be reached. The court apparently saw no objection to the action itself being brought while both husband and wife were living. Assuming' a right of action, it is immaterial to discuss objections which go merely to the form of the decree. The j udgment should therefore be affirmed, with costs.  