
    Seymour Jones et al., as Executors, etc., Plaintiffs, v. Garry M. Jones et al., Defendants.
    (Supreme Court, Oneida Special Term,
    July, 1899.)
    1. Devise — Creating a life estate and not a trust — Bights of creditors of life tenant under a clause, “ not to be liable for any debt.”
    A provision in the will of a wife, giving her husband the use of all her property for life for his support, “ the same not to be liable for any debt existing against him ”, with remainder to her children, creates no trust for the husband, but simply a life estate in him, and its income or increase may be levied upon by his creditors.
    2. Same — Taxes payable by life tenant before his creditors will be paid.
    Where, however, he is also charged with the duty of keeping up taxes and expenses, the court will have their amount determined and paid, so that that duty may be performed before his creditors are allowed to enforce levies made by them.
    About December 30, 1896, one Julia A. Jones, residing in the county of Oneida, died. She left a husband, the plaintiff Seymour Jones; also a last will and testament; also a farm and ■some personal property consisting for the most part apparently of live stock, etc., on the farm. The will was admitted to probate in January, 1897. It appointed the plaintiffs executors simply and not trustees, and it contained the following clauses for the benefit of the husband which furnish the occasion for the present controversy, viz.: “ First. I give, devise and bequeath to my husband, Seymour Jones, the use of all my property of every name, nature and description, both real and personal, for and during the term of his natural life for his support, the' same not to be liable for any debt existing against him.' Second. I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, to my children,” etc.
    ■ After the death of his wife and the probate of her will the husband was permitted by the executors to enter into and take possession of the property covered by the will and, subject to the acts of the sheriff hereinafter referred to, has since continued in such possession.
    Some time prior to the death of his wife a judgment had been recovered against the plaintiff Jones by the defendants Miller for upwards of' $4,000 and an execution returned unsatisfied.'■ Upon June 2, 1898, another execution was issued thereon to the defendant sheriff of Oneida county, who made a purported levy on some of the live stock, implements, etc., of which Jones then had possession and which was either property covered by his wife’s' will, as aforesaid, or produced therefrom. January 11, 1899, under the same execution, the sheriff made another purported levy upon other similarly derived personal property in the possession of said Jones. February 13, 1899, said Jones filed a petition in bankruptcy. He was adjudged a bankrupt and, March 18, 1899, the defendant Dennison was duly appointed trustee in bankruptcy of his estate. Somewhat later, but before the trial, said bankrupt and his trustee were duly discharged.
    It was claimed by the husband upon the trial that it took all of the income of the property possessed by him under his wife’s will to pay the taxes thereon.
    This action is brought for a construction of the will; to have it determined that the interest created by the will for the husband was a trust estate and not subject to levy and sale and to restrain the latter by the defendants Miller.
    E. L. Stevens, for plaintiffs.
    J. S. Baker, for defendants Beese and Miller.
    Bisley & Love, for defendant Dennison.
   Hiscock, J.

In my opinion Seymour Jones took a simple life estate in the property of his wife and no trust was created. There certainly can be no question but that the first part of the clause under review whereby the testatrix gave him “ the use ” of all her property for and during the term of his natural life ” created such estate, especially when read in connection with clause 2. which gives remainder to the children. Matter of McDougall, 141 N. Y. 21; Place v. Burlingame, 75 Hun, 432; covenhoven v. Shuler, 2 Paige, 122.

It is urged by the plaintiffs, however, that the further words “ for his support, the same not to be liable for any debts existing against him,” are sufficient to create a trust estate. But that does not seem so to me. It goes without saying that the testatrix might very easily have created an estate which would be in trust and would give the beneficiary the use and income of her property for his support during his life and free from his debts. On the other hand, she could with equal ease give him a life estate without any trust. The question is simply, which did she do? There is no trust in form or any trustee. There is a gift of an absolute estate for life. Having made this, the testatrix further says that it is for the support of her husband. But she might have that purpose and secure that result and still not thereby so modify her language previously employed as to turn the estate created into one in trust. Swarthout v. Rainer, 143 N. Y. 499.

So with reference to the expression used that the estate created for the benefit of the husband was not to be subject to the payment of his debts. If I am right that she had already created an estate for life, this provision tacked on with reference to debts would not be sufficient to change the nature of the estate created or exempt the property from the liabilities incident to such estate. Bramhall v. Ferris, 14 N. Y. 41, 44.

Concluding that the husband Jones, took, under his wife’s will, an estate for life, the executors had the right to let him have possession of the personal property owned by his wife and comprised in such estate, and. the income and increase thereof (subject to one condition hereafter to be noted) was his to dispose of as he saw fit and subject to the payment of his debts. Matter of Washbon, 38 N. Y. St. Repr. 619; Matter of McDougall, 141 N. Y. 21; Miller v. Delamater, 12 Wend. 433, 438.

The condition referred to is that current taxes, expenses, etc., upon the property, constituting the principal and corpus of the life estate, should be paid by him as life tenant. This was a duty which he owed to the estate and to the remaindermen and which the latter could, if necessary, enforce. It was, and is, an equitable charge against the income having precedence over ordinary claims against the beneficiary. Cairns v. Chabert, 3 Edw. Ch. 313.

So far as the plaintiffs and defendants, outside of the defendant Dennison, are concerned, no question is raised as to the sufficiency or legality in form of the levies made by the sheriff. The plaintiffs expressly allege the same in their complaint. I fail to see how the defendant Dennison is in position to raise that or any other question. He has been discharged as trustee in bankruptcy and has no interest in or lien upon the property.

While some evidence was given upon the trial as to what of the property levied upon was increase or income and not principal of the life estate, it is not sufficiently definite to enable me to pass upon that question intelligently. It will be necessary to have a reference to determine this and also to decide what taxes, etc., if any, are unpaid upon the principal of the life estate which it is the duty of the life tenant to pay, and to the end that if necessary the proceeds of the property to be sold upon execution, if any, may be first applied to the payment of such unpaid taxes, etc., if any. This course of application of proceeds will avoid the necessity which might otherwise arise for the appointment of a receiver of the property.

Findings and interlocutory judgment, in accordance herewith, may be settled upon two days’ notice if not agreed upon.

Ordered accordingly.  