
    Thompson v. Thompson et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    Wills—Constbuction—Rights oe Legatees.
    C. was a legatee under his father’s will, which gave a fund to a trustee in trust to pay the income to C., until the year 1895, when, if living, he should receive the principal, but, if he should die before that time, leaving issue, the income should be paid to such issue until that time, when it was to be divided among them in equal parts. If he should leave a wife, but no issue, a provision was made by which she was to receive the benefit of a sum to be set apart for her. C. was adjudged to pay alimony to his wife, who obtained a divorce from him. Held, that the intention of the will was to provide as well for the support of C.’s wife and family as for that of himself, and that a sufficient part of the income should be set apart for the payment of the judgment for alimony, though other judgments were on record against C.
    Appeal from special term, Rensselaer county.
    Action by Amelia T. Thompson against Charles E. Thompson and Mary T. McConihe, executrix of and trustee under the will of Gilbert G. Thompson, deceased. The plaintiff obtained, on the 19th day of April, 1888, a judgment of divorce against her husband, the defendant Charles Thompson. The judgment directed the defendant to pay the plaintiff yearly the sum of $800 for her support and that of their child, whose custody was awarded her. The defendant is entitled under the will of his deceased father, Gilbert G. Thompson, to the income of an estate valued at $39,344. That income is found in this action to be $1,600 yearly. The defendant Mary T. McConihe is the executrix and trustee under the will, and has the custody of the estate charged with the payment of said income. The will provided that the income of testator’s estate should be paid to his son Charles E. Thompson until January 1, 1895, when, if living, he should receive the principal. If he should die before that time the income was to be paid to his issue, and at that time the principal was to be equally divided among such issue. If he should die without issue, but leaving a widow, she was to receive $10,000 out of testator’s estate. This action was brought to subject the income to the payment of the alimony mentioned. Judgment for plaintiff, and the trustee appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Long & Maxwell, for appellant. Merritt & Ryan, for respondent Amelia T. Thompson. R. C. Jennyss, for respondent Charles E. Thompson.
   Landon, J.

The appellant has no grievance. She is simply directed to pay a portion of the income of the trust-estate in her hands to the plaintiff, the wife of the defendant Charles Thompson, instead of paying it to Thompson himself. The sum directed to be paid is the alimony and allowance awarded by the judgment obtained in an action for divorce by the plaintiff against her husband, Charles Thompson. In this action the defendant Charles Thompson appears by his attorney, and suffers default. The appellant must pay the income of the trust-estate, and this judgment protects her in paying a portion of it to the plaintiff. The only persons who can claim that they are not bound by this judgment are the judgment creditors of Charles Thompson. The trial court held, and we think properly, that the trust created by the will of Gilbert G. Thompson for the support of Charles Thompson extends also to the support of his wife and child, and that a judicial provision for their support out of the income is a proper application of a portion of the income, and paramount to the rights of judgment creditors. Tolles v. Wood, 99 N. Y. 616, 1 N. E. Rep. 251. Should a judgment creditor hereafter attempt to impeach such provision, the court would extend the necessary protection to the appellant as trustee. We think the judgment right, and that it should be affirmed. Judgment affirmed; costs of both parties payable out of the fund. All concur.  