majority">Ingraham, P. J.:

The facts are stated in the opinion of my brother Laughlin, and it is not necessary that I should restate them. Section 1391 of the Code of Civil Procedure, upon which this application is based, provides that where-a judgment has been recovered, and an execution issued upon said judgment has been returned, wholly or partly unsatisfied, “ and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor-or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, the judgment creditor may apply to the court in which said judgment was recovered or the court' having jurisdiction of the same without notice to the judgment debtor and upon satisfactory proof of such facts by affidavits or otherwise,” the court must grant an order 'directing that an execution issue against “the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor.” The question presented is whether there was any income from trust funds due and owing “to the judgment debtor or [which may hereafter] become due and owing ” to him.

It is claimed by the appellant that there was due and owing to this judgment debtor a certain income under two trust funds, one created by the will of Julia A. Chapman and the other created by the will of Louisa W. Chapman. By the will of Julia A. Chapman the sum of $6,000 was bequeathed to a trustee during the life of the judgment debtor, the income to be applied to the support, maintenance and use of the judgment debtor free from the claim of any assignee, creditor or wife of the judgment debtor. The income on this sum at five per centum would be $300 a year, about $25 a month, and thus less than $12 a week. By the will of Louisa W. Chapman she devised and bequeathed her property to the Title Guarantee *81and Trust Company in trust for the life of the judgment' debtor to apply the income and profits thereof to his support and maintenance and to the support and maintenance of any children of his. It is further provided that in case any other person should give, devise and bequeath any property in trust to apply the interest and income to the support and maintenance of the judgment debtor, then such interest and income is to be first applied to his support and maintenance and whatever sum is needed for his liberal support and maintenance and the support and maintenance of any children he may have, the trustee was directed to provide out of the rent, interest, income and profits of the property given in trust, and in case such rent, interest, income and profits together with the interest and income of any property given or bequeathed by any other person for the judgment debtor’s support and maintenance shall be more than sufficient for his liberal support and maintenance, after deducting all necessary and proper charges and expenses, the testatrix gave the remainder of such rent, interest, income and profits to those persons who would be the heirs at law of one George W. Chapman in the same proportion that they would inherit from him under the laws of the State of Hew York.

The testimony of the trust officer shows that there was received by the trust company for the year from October, 1912, to October, 1913, as income from the property devised under the will of Louisa W. Chapman the sum of $2,163.57, and that during the preceding years the trust company had expended for the support and maintenance of the defendant at a sanitarium about $1,200 a year. In this case this testatrix instead of giving any property or income to the judgment debtor undertook to make provision for his support by a trustee appointed by her for that purpose. Under that will, as I read it, the defendant himself was not entitled to any of the rents, income or profits of the trust estate. The trustee was to receive the rents, income and profits and itself apply them to the support of the judgment debtor and whatever was not needed for his support the trustee was directed to pay over to other persons. There was certainly no income of a trust fund “due and owing” to the judgment debtor or which under this trust ever could *82"become “due and owing” to him. The property‘belonged to the testatrix. She had power to apply it to such use as she desired and neither the State nor the creditors of the judgment debtor could appropriate that property to their own use. She provided that the trustee should supply the judgment debtor with support and maintenance, and whatever income of the trust fund was in.excess of the sum necessary to discharge the cost of the support of the judgment debtor that she had directed the trustee to supply was to be paid to the persons to whom the surplus income was to belong. If we adopt the conclusion of my brother Laughlin, the situation would be that after the trustee had applied $1,000 a year to the support of the judgment debtor, paying it to the persons furnishing such support and not to the judgment debtor, the creditors were authorized to have ten per cent of that sum applied to the payment of this judgment. The trustee would then have to make that good by paying out of the remaining income the bills that it had incurred for the support of the judgment debtor and such additional payment would come, not out of any money or property belonging to the judgment debtor, but from the sun plus income which under the will belonged to third parties to whom the testatrix had directed it to be paid. Thus the result would be that the creditor would be paid, not out of property that belonged to the judgment debtor, but out of income that belonged to other persons who were the objects of the testatrix’s bounty. However desirable it may be that debtors should be compelled to pay their debts, it has not been the policy of the law to compel third persons who are not responsible for such indebtedness to pay it out of their own property. Certainly under this will of Louisa W. Chapman there was no income due and owing to the judgment debtor, and the income from the will of Julia A. Chapman was less than $12 a week and to that the creditor was not entitled.

I think, therefore, the court below was right in denying the application, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

McLaughlin and Scott, JJ., concurred; Clarke, J., concurred in result; Laughlin, J., dissented.

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