
    In the Matter of the Examination of Helen M. Stafford, Judgment Debtor, Respondent, in Proceedings Supplementary to Execution upon the Application of Fred T. Cahill, Judgment Creditor, Appellant, under a Judgment Recovered in an Action Entitled, Justice’s Court, City of Oswego, N. Y., Fred T. Cahill v. Helen M. Stafford.
    
      Receiver in supplementary proceedings — his appointment is largely discretionary — not appointed where the judgment debtor originally held a lease for life of real property, the title in fee to which was paid for out of her husband’s pension money and was acquired by her before the docketing of the judgment — merger of the leasehold intei'est in the fee.
    
    In 1883 Helen M. Stafford, the owner of certain real property, conveyed such, property to her sister, taking back from her sister a lease thereof for her (Helen M. Stafford’s) life. In 1897 her sister reconveyed the premises to her ' by warranty deed, the purchase price being paid by her husband, a pensioner, out of his pension moneys. Thereafter, in 1904, a judgment was rendered against Helen M. Stafford, upon which proceedings supplementary to execution were instituted.
    
      Held, that an order made in the supplementary proceedings refusing to appoint a receiver of the property of Mrs. Stafford should be affirmed;
    That the fee of, the premises, having been purchased with pension moneys, was, under section 1393 of the Code of Civil Procedure, exempt from levy and sale-under execution;
    
    That the question whether the life lease was merged in the fee of the premises-depended upon the intention of the parties at the time of the conveyance of the fee;
    That whether a receiver in supplementary proceedings shall be appointed rests largely in the discretion of the court to which the application is made, and that, in support of an order refusing to appoint a receiver, it would be fair to assume that satisfactory proof has been furnished, to the effect that there had been a merger of the life estate in the fee, and that the purchase price of the fee had been paid from pension moneys. ■ .
    Appeal by the judgment creditor, Fred T. Cahill, from an order-made by a-judge of the County Court of Oswego county, entered in the office of the clerk of the county of Oswego on the lltli day of November, 1904, denying the appellant’s application for the appointment of a receiver.
    
      Fred T. Cahill, appellant, in person.
    
      
       See Smith v. Blood (106 App. Div. —).— [Rep.
    
   Spring, J.:

Up to and prior to 1883 Helen M. Stafford (then Helen M. Carson) was the owner of certain premises situate in the city of Oswego. In January of that year she conveyed the same to her sister, Emma Hunt, taking back from said grantee a lease for life. On the 18th day of January, 1897, said grantee reconveyed said premises by warranty deed to said Helen M. Stafford.

The petitioner is the judgment creditor of Helen M. Stafford, having recovered a judgment for fifty-two dollars and sixty cents on the 4th day of October, 1904. Proceedings supplementary to execution were had on said judgment, and the judgment debtor was examined pursuant to the order in said proceeding. An application was made in said proceeding for the appointment of a receiver, which application was denied. The judgment debtor testified that her husband, who was a pensioner, paid out of his pension money the purchase price of the premises, which were conveyed to his wife. This being so, the fee of the premises is exempt from levy and sale by virtue of an execution. (Code Civ. Proc. § 1393.)

The petitioner, however, contends that the income from said real estate, by reason of such life lease, can be made amenable to the payment of this judgment. Whether by the union of this lesser estate with the fee of the premises the former was merged in the greater, depends upon the intention at the time the conveyance was made. (Washb. Real Prop. [6th ed.] § 740 et seq.; Gerard Titles [4th ed.], 192 et seq.; Thomas Mort. [2d ed.] § 363.)

The record shows that Mrs. Stafford has been the owner of these premises since the reconveyance to her in 1897, and there is nothing to indicate that there has been any continuance of the life tenancy as distinguished from the estate in fee. Her intention is paramount in the determination of the effect to be given to the uniting of these two estates, and there should be something to indicate that she does still retain a life estate before the possession of the property is turned over to a receiver.

Whether a receiver is appointed in proceedings supplementary to execution rests very largely in the discretion of the judge to whom the application is made. (Code Civ. Proc. § 2464.) The record in this cake shows that at the time of the application for the appointment of a receiver, the statements of Mrs. Stafford, the judgment debtor, and her sister, Mrs. Williams, the former owner of the premises, were taken by the judge with the assent of the attorney for the judgment creditor. What comprised these statements does not appear. In support of the order of the county judge refusing the application for the appointment of a receiver, it is fair to assume that the statements taken satisfied him that there was a merger of these two estates, and that the purchase price of the fee of the premises was paid from pension moneys of the husband. While a receiver should be appointed if the evidence fairly indicates that there is any property applicable to the payment of the judg: ment, yet there should be no appointment where the proof shows that the judgment debtor has no property applicable to the lien of the judgment, and where it may result in harassing her without any benefit accruing to the petitioner.

The order should be affirmed, without costs.

All concurred.

Order affirmed, without costs.  