Magner v. Crooks

HENSHAW, J.

This is an appeal from an order made and entered by the trial court in proceedings supplementary to execution. Plaintiff had obtained a judgment against defendant Crooks. Execution was issued and returned unsatisfied. Plaintiff then made affidavit that John T. Harmes and Jonathan J. Crooks held in their possession property of the judgment debtor, and the court made its order requiring Crooks and Harmes to appear and answer concerning any such property. It appeared from the testimony that one-eighth part of the estate of Susan Crooks, deceased, who was the mother of defendant Robert L. Crooks, was distributed to Jonathan J. Crooks as trustee upon the trust to pay to Robert L. Crooks monthly, during his lifetime, the income derived from this one-eighth portion of the estate, and upon his death the one-eighth portion to go to the living children of Robert L. Crooks. The income amounted to the monthly sum of about one hundred and sixty dollars. The court adjudged that one hundred dollars a month was sufficient for the support of Robert L. Crooks and his family; that twenty dollars a month would be sufficient to pay all costs, expenses, and charges of administering the trust; and that the sum of forty dollars a month should be impounded and paid upon plaintiff’s judgment.

The proceeding was had under section 859 of the Civil Code, which provides that “Where a trust is created to receive the rents and profits of real property, ánd no valid direction for

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accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, is liable to the claims of the creditors of such person in the same manner as personal property which cannot be reached by execution.” This provision of the code is taken from the statutes of New York. (1 N. Y. Rev. Stats., 729, see. 57.) In that state it has received judicial construction. In

Kilroy

v.

Wood,

42 Hun, 636, the court says: “It has been held in a series of cases that a judgment creditor is entitled to the proportion of the income beyond what is necessary for the suitable support and maintenance of a