
    Theresa E. McGlynn, Plaintiff, v. Henry J. McGlynn et al., Defendants.
    (Supreme Court, Kings Special Term,
    January, 1902.)
    Equity — When a wife may reach, for arrears of alimony and counsel fee in her action for a separation, a surplus of income of a trust fund created for her husband’s benefit.
    Where a husband goes beyond the jurisdiction after his wife, without resources and having children, has obtained against him an order, for alimony during the pendency of her action for a separation from him as well as for a counsel fee, and he has no property within the jurisdiction which can be taken on execution or by sequestration, .she may as his creditor maintain an equitable action against him and his father’s executors to reach a surplus of a beneficial income given him by his father’s will and apply it to arrears of the alimony and counsel fee, to the end that she may have support during the prosecution of and may prosecute her action for a separation.
    Action by the plaintiff wife against the defendant husband and the executors who act as such under the will of the father of the husband, to reach a part of the beneficial income to be paid as. directed by the will to the husband.'
    Howard A. Sperry, for plaintiff.
    •Matthew E. Ennis, for defendant McGIynn.
    Rollin M. Morgan, for Donnolly, executor.
   Russell, J.

The plaintiff wife sues the defendant husband and the executors, who act as such under the will of the father of the husband, to reach a part of the beneficial income to be paid as directed by the will to the husband.. On the 14th of July, 1896, the plaintiff, Mrs. McGIynn, in an action brought for a separation against her husband, the defendant McGIynn, obtained an order pending litigation of alimony for the maintenance of herself and her children of ten dollars a week, and for thirty dollars counsel fee, no part of which alimony or counsel fee has been paid except the sum of seven dollars. An execution against the personal property of the husband has been issued and returned unsatisfied, and the husband has been duly adjudged in contempt for noncompliance with the order, but no sequestration proceedings have been had, he having no property to sequester, nor are his whereabouts known so as to make the contempt proceedings effective. The plaintiff is apparently without means to prosecute her separation action or to maintain herself and her two minor children. little light has been thrown by the evidence in this case upon the amount required for the necessities of the husband, but the net income currently to be paid him is evidently at least two and a half times the amount which the court awarded to the wife for the support of herself and children, and, giving force to the inferences which may be drawn from the adjudication in the controversy between the husband and wife, if she and the children can live on ten dollars per week, a single man according to the station of life as viewed by the court in the former action, and who had taken upon himself the obligation of providing for that wife and those children whom he brought into this world, ought to be able to live upon half as much again as the three dependents. ISTor is it to be presumed that the courts will listen with much forbearance to a plea on his part, in view of his duties, that he may live beyond the jurisdiction of the court over his person with the free choice of idleness though an able-bodied man, in order to exempt his income from sacred obligations, especially as his deceased father did not fetter the payment of the income to him by any limitation that it was to be devoted to his support alone.

Is the law impotent to help this wife and these children? May the husband and father enjoy the luxury of a comfortable income to be expended solely for his own selfish purposes, while they whom he is bound to support must depend upon the charity of others? Is she obliged to forego the prosecution of her separation action, and the opportunity to prove its necessity, because she cannot get the means which the court has adjudged she sbn.ll have and which the husband is fully able to pay?

By the unanimous judgment of our Court of Appeals it was decided to be the law of this State, that a judgment in an action for divorce awarding alimony to the wife made her a creditor' of the husband so that, even as a claimant creditor, she was entitled to maintain her action for a diversion of the surplus of an income coming from the husband’s father by will though that income was limited to the use of the son for life. The court went still farther and placed its judgment on a broader and deeper ground. It maintained that, the husband and wife being one in the eyes of the law, the wife should be entitled to a part of a provision for his support, especially as it was his duty to maintain her. Wetmore v. Wetmore, 149 N. Y. 520.

In the opinion, the following cases were approved: Thompson v. Thompson, 52 Hun, 456; Williams v. Thorn, 70 N. Y. 270; Tolles v. Wood, 99 id. 616; Sillick v. Mason, 2 Barb. Ch. 79.

In the Thompson case the wife obtained a direction compelling the trustee to pay the alimony out of the trust income going to the husband.

Does it make any difference because her right to support is determined only by an order of this court, which the husband prevents from ripening to a final judgment by his refusal to pay? There can be no essential difference in the present status of the pecuniary as well as marital right whether she gets alimony by order or judgment. She is just as much a creditor because the arrears are sums directed by the court to be paid for present needs as though such provision was by later judgment for the remaining years of her life, and just as much a wife entitled to support as she would be after separation by court decree. Her right to the moneys cannot be attacked collaterally. Aldridge v. Walker, 73 Hun, 281.

The order on motion is as effective in subsequent litigations as though confirmed by' judgment. Dwight v. St. John, 25 N. Y. 203.

The pecuniary basis of the claim survives to the administrator of the deceased even against a fraudulent transferee of the husband’s property. Bouslough v. Bouslough, 68 Pa. 495.

And arrears may be recovered against the. estate of a deceased husband. Knapp v. Knapp, 134 Mass. 353.

A decree for alimony made by a Hew York court is properly enforcible by suit in equity in another State. Barber v. Barber, 21 How. (U. S.) 582.

The wife has exhausted the legal remedies. An execution has been returned unsatisfied. Sequestration proceedings are useless and therefore unnecessary. Code Civ. Pro., § 1773.

Must she go through the formal proceeding of getting a judgment on the arrears already adjudicated to be due, and then proceed as any contract creditor ? How much then would her status be altered in substance?

The reach of equitable remedy does not simply extend to a statutory power conferred in cases where a debtor refuses to apply property rights not to be reached by execution. It may well halt on grounds of public policy in an effort to impress a lien in favor of a mere indebtedness unless the procedure provided is complied with; but it never hesitates for want of a mere form, useless to follow, where the right reaches into the thing sought, but aids the effort by direct remedy. Such equitable power antedates any statute. Harvey v. McDonnell, 113 N. Y. 526; National Tradesmen’s Bank v. Wetmore, 124 id. 241.

The law of Hew York as to the pecuniary marital rights of wife and husband has been in a transitional condition for over half a century; this State was the pioneer in the emancipation of her property from his unjust control; and it may be well — very well — for the courts of this State to heed the significant hint of Judge Haight in Wetmore v. Wetmore, concurred in by all the judges sitting in that case in the Court of Appeals, that the wife’s right to support in the assured income of the husband may be enforced in equity even though unsupported by any other form of cruelty than forcing her and her children to hunger while he lives in luxurious ease, and to declare that, if the State can by compulsion upon him save a few dollars of public burden for the support of his dependents, her far weightier claims will secure in a righteous case direct and speedy recognition.

It is obvious that courts cannot intervene to adjust controversies between husband and wife, based upon their differences as to the adequacy of the support alone; but judicial relief may be given where the acts of the husband amount to a repudiation of all obligation. Such intervention would not tend to disrupt family ties but rather help, as a restraining and preventing influence, to discourage a total rupture.

In this case the wife does not rest solely on her original right to support, but has the sanction of a duly made order of this court, fi-x-fng the precise obligation, and also the proof that no other resource is left her but the aid of the court to enforce her right and its decree.

Judgment is directed that the arrears of alimony be paid out of the son’s income, with the costs of this action.

Judgment accordingly.  