
    In the Matter of the Accounting of Oswald W. Knauth et al., as Trustees of the Trusts for the Benefit of Oliver D. Knauth, Established by Anna D. Knauth and Oswald W. Knauth. Agnes W. Martin, as Executrix of George W. Martin, Deceased, et al., Respondents; Oliver D. Knauth, Appellant.
    Argued January 14, 1963;
    decided February 28, 1963.
    
      
      Arnold Davis for appellant.
    I. It was contrary to the expressed intent of the 1931 trust agreement to permit the beneficiary thereof to make a valid assignment of the future income of the trust. The Referee erred in having held that an assignment of the future income of the 1931 trust from appellant to his then wife was irrevocable. (Matter of Cramer, 166 Misc. 713; Matter of Renn, 177 Misc. 195; Matter of Wentworth, 230 N. Y. 176; Metcalfe v. Union Trust Co., 181 N. Y. 39; Matter of Morgan, 223 Pa. 228. ) II. The clear intention of the settlor was to place the income and principal of the trust beyond the reach of any wife which appellant might have. (Matter of Waring, 275 N. Y. 6; Trowbridge v. First-Stamford Nat. Bank & Trust Co., 182 Misc. 180, 286 App. Div. 768, 294 N. Y. 785; Matter of Lake, 170 Misc. 840; Rogers v. Rogers, 174 Misc. 841, 262 App. Div. 798.) III. Appellant could not irrevocably assign the future income of the trust to anyone, including his wife. (Matter of Dieudonne, 186 Misc. 642; Matter of Oakley, 116 Misc. 494, 207 App. Div. 811; Matter of Goldman, 142 Misc. 790; Matter of Barnett, 21 Misc 2d 196.) IV. The assignment at bar does not fall into any recognized exception to the rule against the assign-ability of future income by the beneficiary of a spendthrift trust. (Thompson v. Thompson, 52 Hun 456; Wetmore v. Wetmore, 79 Hun 268, 149 N. Y. 520; Moore v. Moore, 143 App. Div. 428, 208 N. Y. 97; Hoagland v. Leask, 154 App. Div. 101, 214 N. Y. 645; Matter of Yard, 116 Misc. 19; Matter of Littauer, 285 App. Div. 95; Matter of Newman, 17 Misc 2d 578; Wetmore v. Wetmore, 162 N. Y. 503; Bertles v. Nunan, 92 N. Y. 152; Phillips v. Phillips, 1 A D 2d 393; People v. Morton, 284 App. Div. 413, 308 N. Y. 96.) V. The Referee violated the settlor’s intention in holding that the assignment was valid and sufficient to restrict appellant’s interest in the trust to no more than the right to receive $100 monthly from the income thereof. (Matter of Tompkins, 28 Misc. 351; Metcalfe v. Union Trust Co., 181 N. Y. 39.) VI. The Referee permitted an assignment of future income of a spendthrift trust in violation of the provisions of section 15 of the Personal Property Law.
    
      
      Frederick M. Schlater for Mary P. Knauth, respondent.
    The assignment of income to Mary P. Knauth was irrevocable, conclusive and binding upon Oliver D. Knauth. (Wetmore v. Wetmore, 79 Hun 268, 149 N. Y. 520; Thompson v. Thompson, 52 Hun 456; Matter of Yard, 116 Misc. 19; Borax v. Borax, 4 N Y 2d 113; Nichols v. Nichols, 306 N. Y. 490; Matter of Newman, 17 Misc 2d 578; Matter of Bellamore, 27 Misc 2d 118; Matter of Littauer, 285 App. Div. 95; Tolles v. Wood, 99 N. Y. 616; Williams v. Thorn, 70 N. Y. 270; Fox v. Fox, 276 App. Div. 859; Matter of Sand v. Beach, 270 N. Y. 281; Matter of Jackson v. Jackson, 194 Misc. 134; Weigold v. Weigold, 236 App. Div. 126.)
    
      Ralph F. Kane, guardian ad litem for Anne W. Knauth and another, infants, respondents.
    I. The prohibition against assignments of trust income, contained in section 15 of the Personal Property Law, and in section 103 of the Real Property Law, does not apply to assignments made by the income beneficiary to his own wife, for the support of the wife or for the support of the wife and the children of the marriage. (Wetmore v. Wetmore, 149 N. Y. 520; Wetmore v. Wetmore, 162 N. Y. 503; Matter of Yard, 116 Misc. 19; Matter of Littauer, 285 App. Div. 95; Matter of Bellamore, 27 Misc 2d 118; Matter of Randolph, 159 Misc. 688; Thompson v. Thompson, 52 Hun 456; Hoagland v. Leask, 154 App. Div. 101, 214 N. Y. 645; Moore v. Moore, 143 App. Div. 428, 208 N. Y. 97.) II. Appellant’s contention — that the cases upholding assignments of trust income to the beneficiary’s wife are based upon the unity of husband and wife and are therefore no longer law because such unity no longer exists — is without merit. Also without merit is appellant’s attempt to limit the validity of assignments to a wife to eases involving alimony decrees or separation agreements. (Matter of Littauer, 285 App. Div. 95; Matter of Randolph, 159 Misc. 688.) III. The claim, that the assignment was contrary to the expressed intent of the 1931 trust agreement and that any assignment made by Oliver D. Knauth was revocable at will, is without merit. IV. The bills unsuccessfully introduced in the Legislature impliedly recognized that assignments to the wife or children of the trust beneficiary were valid. V. Even if it be assumed that an assignment of trust income to the wife of the beneficiary is valid only as long as it continues to be fair to the beneficiary, the assignment here involved is valid for the Referee has found that it was fair when made and that it has continued to be fair —indeed that Oliver D. Knauth is now better off than Mary P. Knauth. VI. Regardless of whether the assignment is valid, either irrevocably or only as long as it continues to be fair to the assignor, the Referee properly denied Oliver D. Knauth’s application for a reapportionment of the trust income, on the basis of his finding that the amount which is being paid to Mary P. Knauth under the assignment is fair and reasonable to Oliver, whose financial circumstances are better than Mary’s. VII. Having been unsuccessful upon all the factual issues which brought about the reference, appellant is in no position to contend that the award of the costs thereof to respondents was improper.
   Fuld, J.

In 1931 Anna Knauth created an inter vivos trust for the benefit of her son Oliver. It was provided that he was to receive the entire net income from the trust for his life and that both principal and income were to be “ free and clear from the control of [his] debts, liabilities and engagements ’ ’. In 1938, when he was 26 years old, Oliver married Mary Pickett, and they had two daughters. In 1946 Mary left her husband, taking the children with her, and in February, 1947 she instituted a suit for divorce in Connecticut.

About six months later, while the divorce action was pending, husband and wife entered into a written contract. After reciting that they had separated and desired ‘1 to have their financial relationship so adjusted that the wife shall have an income of her own without being under the necessity of depending upon the husband for her support and the support of the children, who live with her ”, the agreement went on to state that the husband was making an “ irrevocable assignment ” to the wife of all of the income from the trust in excess of $100 a month, to be “in full of the husband’s duty to support her and the children so long as the said trust income is the whole of the income of the husband.” A copy of the agreement was delivered to the trustees and they have been paying the income of the trust in accordance with its provisions.

The Connecticut divorce action, in which Oliver had appeared, terminated in the Fall of 1948 with a decree in Mary’s favor. She was given custody of both daughters and was awarded alimony of $1 a month. Obviously, as found below, the amount was fixed at this nominal figure because the husband had already provided for the support of his wife and children by the assignment he had made of trust income.

The present proceeding was brought by the trustees for a settlement of their accounts and for other relief, including a determination as to the legal effect of the assignment of trust income to Mary. In his answer, the husband, contending that the assignment violated both the expressed intent of the creator of the trust and the laws of New York, requested a declaration that the agreement is void insofar as it seeks to assign trust income. The Referee, appointed by the court at Special Term to hear and determine the issues, rejected this contention and held the agreement valid. The Appellate Division, agreeing, affirmed the resulting order, with a modification not here pertinent, and the husband appeals to this court as of right.

In this State, the restrictions on the income beneficiary’s right to alienate his interest in the trust are purely statutory. (See Bramhall v. Ferris, 14 N. Y. 41, 44; Dyett v. Central Trust Co., 140 N. Y. 54, 65—66; see, also, Griswold, Spendthrift Trusts [2d ed.], § 67.) The applicable statute in the case before us, section 15 of the Personal Property Law, provides that “ The right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply it to the use of any person, can not be transferred by assignment or otherwise.” (See, also, Real Property Law, § 103.) Absolute though the prohibition is on its face, there is no doubt that it is subject to qualification. When read in connection with related statutory provisions (Real Property Law, § 98; Civ. Prae. Act, § 793), it is clear that the rule prohibiting the transfer of income from a spendthrift trust is designed to protect the beneficiary against his own improvidence so that such income may be preserved not only for his support but for that of his family as well. (See, e.g., Wetmore v. Wetmore, 149 N. Y. 520; Matter of Sand v. Beach, 270 N. Y. 281, 285-286.) And, it follows from this, an assignment of trust income for the support of wife and children, far from violating the policy or the spirit of the rule, actually tends to effect its purpose. (See Matter of Littauer, 285 App. Div. 95, 98, motion for leave to appeal den. 308 N. Y. 1052; Matter of Yard, 116 Misc. 19; Matter of Bellamore, 27 Misc 2d 118; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.)

In point of fact, the courts have gone so far as to uphold the wife’s right to an involuntary transfer of future income for her support from the husband’s spendthrift trust. Thus, where she has obtained a judgment of divorce directing the payment of alimony, it has been consistently held that the trustees of the trust may be ordered to pay such alimony in order to satisfy the judgment. (See, e.g., Wetmore v. Wetmore, 149 N. Y. 520, 529, supra; Wetmore v. Wetmore, 162 N. Y. 503, 510; Moore v. Moore, 143 App. Div. 428, 434, affd. 208 N. Y. 97; Thompson v. Thompson, 52 Hun 456, 458; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338.) The settlor “ in constituting a trust for the benefit of his son ”, this court declared in Wetmore v. Wetmore (162 N. Y. 503, 510, supra), “must have contemplated that it should also be for the benefit of his wife, should he marry, and his children, should any result from the marriage. This, we thought, was a reasonable and just view of the question presented.” If, therefore, a direction in a divorce decree requires the payment of alimony out of the husband’s interest in trust income, it stands to reason that payment of the amount voluntarily allotted to the wife for her support should likewise be required. The only difference between the two cases, as Surrogate Foley observed some 40 years ago, is that in the latter ‘ ‘ the husband consents to the allowance, thereby recognizing the duty to provide and the reasonableness of the amount fixed”. (Matter of Yard, 116 Misc. 19, 22, supra.)

Cases may arise in which an assignment of trust income may have left the husband without sufficient means for his own support but the present is not one of them, and we need not now concern ourselves with the problems they may present. Here, on the facts adduced, the courts below were privileged to conclude, as they did, not only that the assignment agreement was fair and reasonable when made in 1947, not only that it continued so down through the years since its execution, but that Oliver, “ better off financially” than Mary, has continued to have sufficient means for his maintenance. If, however, Oliver’s circumstances do change in the future and he requires for his support or that of his then dependents more of the income from the trust than he retained, he is free to apply to the court for such reallocation of the income as is deemed necessary.

The order should be modified in accordance with this opinion and, as so modified, affirmed, with costs to the guardian ad litem for infant respondents.

Vast Voorhis, J. (dissenting).

The controlling question of public policy in this case concerns not the unity of husband and wife but whether spendthrift trusts are lawful. Where the Legislature has spoken, within constitutional limitations, the public policy of the State is what the Legislature says it is (Messersmith v. American Fid. Co., 232 N. Y. 161, 163). Section 15 of the Personal Property Law provides that “ The right of the beneficiary to enforce the performance of a trust to receive the income of personal property and to apply it to the use of any person can not be transferred by assignment or otherwise.”

This bar against alienability by the beneficiary has been upheld in the courts (Matter of Wentworth, 230 N. Y. 176, 185). In that case the court said: “ The purpose of the statute as has been stated over and over again was to permit a testator thus to make secure provision for the support and maintenance of an improvident person for life and to place it beyond the reach of such person or his creditors to defeat the purposes of the trust by alienating and squandering the principal.” The principle applies to future income, except that such assignments constitute a revocable order to the trustee, valid until revoked by the beneficiary (Matter of Oakley, 116 Misc. 494, affd. 207 App. Div. 811). Section 15 of the Personal Property Law makes no exception in favor of an assignment of future income by a beneficiary to his wife or children. The abstract theory of unity of husband and wife, a throwback from the trend of the Married Women’s Acts, does not support an assignment for the benefit of children. There is no reason to believe that the Legislature intended this outworn fiction to support an assignment by a beneficiary of future trust income to his wife, on the basis that in doing so he is transferring it to himself. Nothing to the contrary was decided in Wetmore v. Wetmore (149 N. Y. 520; 162 N. Y. 503), which held that under the Revised Statutes (Rev. Stat. of N. Y., part II, ch. I, tit. 2, art. 2, § 57) accrued alimony may be ordered paid under the equitable powers of the Supreme Court out of surplus income from trusts beyond the sum necessary for the support of the person for whose benefit the trust is created. It held that such surplus might also be applied to the payment of current alimony. Jurisdiction in such instances was held to be continued in the Supreme Court, permitting applications to be made by either party at the foot of the decree from time to time for such changes as circumstances might warrant (149 N. Y. 520). A modification was made at the foot of the decree at the instance of the husband after the remarriage of the wife (162 N. Y. 503).

Neither of the Wetmore cases involved assignment of trust income by the husband-beneficiary. It was simply held that the wife was entitled to participate as a preferred creditor to the extent ordered by the Supreme Court in the exercise of its equitable jurisdiction in what was found to be the surplus beyond that which was necessary for the beneficiary’s support. e

In Matter of Yard, (116 Misc. 19) Surrogate Foley held that the holding in the Wetmore case should be extended to a situation where husband and wife were living apart under an agreement of separation which contained an assignment of trust income. He said: I see no difference between the direction in a decree of alimony, and the amount allowed in the separation agreement. In the former case there is an element of compulsion although within the proper jurisdiction of a court of equity. In the latter case, the husband consents to the allowance, thereby recognizing the duty to provide and the reasonableness of the amount fixed by both parties. Indeed under all the authorities, the terms of a valid separation agreement seem to be equally as forceful and effectual as a judicial allowance of alimony, and they are conclusive as to the amount of alimony either temporary or final ” (p. 22, citing cases).

Upon the present appeal we are not dealing with a separation agreement. The parties were at pains to state in this contract of assignment that “ Nothing herein contained shall constitute a formal separation agreement between the parties ’ ’. The basis on which Surrogate Foley purported to extend the Wetmore rule to separation agreements consequently is absent insofar as the present appeal is concerned. Beyond that, however, the decision in the Yard case (supra) does not follow but is in conflict with the Wetmore decisions in this court. Instead of the assignment of trust income being irrevocable, as Yard held that it would be under a separation agreement, the Wetmore decisions held that the determination of the court awarding a portion of the trust income to the wife as a creditor was not a contractual obligation and was subject to modification at any time by application at the foot of the decree. The obiter dicta in Matter of Littauer (285 App. Div. 95, 98-101) are without support from other decisions in this State and are contrary to the express language of section 15 of the Personal Property Law and the corresponding section 103 of the Beal Property Law.

There is no reason to suppose that in authorizing spendthrift trusts the Legislature had in mind to except irrevocable assignments of income to husbands or wives. The established case law is to the effect that the Legislature intended it to be quite sufficient that separated wives should be permitted to participate under court order in surplus income beyond what the court finds is necesssary for the support of the beneficiary. Even if a separation agreement were to be deemed to be equivalent to the alimony provisions in a matrimonial decree, as Surrogate Foley said, it does not follow that it could have a greater effect than a matrimonial decree in operating as an assignment of trust income or that it could attach to more than the surplus income under court order pursuant to section 98 of the Beal Property Law.

The policy of the Legislature is insofar as possible to enable testators and settlors to do what they will with their own. The cornerstone of spendthrift trusts is the intention of the creator of the trust that the beneficiary be protected from his own improvidence, in passing through the manifold and sundry changes of this mortal life. One of the pitfalls against which the creators of trusts seek to protect their descendants is the alienation of their substance to mercenary husbands or wives. I do not imply that either Mrs. Oliver Knauth is such a person, but in deciding cases it is necessary to give thought to how the decision will affect other cases. It can hardly be doubted that in creating spendthrift trusts the usual testator or settlor has firmly in mind to secure an improvident child or grandchild against the possible acquisitiveness of a spouse.

This beneficiary has married again. Although that does not exempt him from obligation to make suitable provision for the support of his former wife and children, the second wife is a fact and not a theory. The disposition of his trust income as between both wives and the children, beyond what is required for his support, should be left to the sound judgment of a court of equity as in the Wetmore case, unaffected by any transfer which he purports to have made to his first wife in contravention of the statute in such case made and provided. Whether what he has done is reasonable is beside the point. If the amount which he purported to transfer to his first wife is reasonable, it should be continued on that ground and not because he made an assignment of it.

The order appealed from should be modified in accordance with this opinion.

Chief Judge Desmond and Judges Dye, Burke, Foster and Soileppi concur with Judge Fuld; Judge Van Voorhis dissents and votes to modify in accordance with his dissenting opinion.

Ordered accordingly. 
      
      . A short time after the execution of this agreement, Oliver’s father, apparently to make up to him that portion of the income from his mother’s trust which he had assigned to Mary, created a second trust for his benefit.
     
      
      Now section 98 of the Real Property Law, also applicable to trusts of personalty (Brearley School v. Ward, 201 N. Y. 358).
     