Frost v. Hotchkiss.

gress. The reason lies in the nature of the proceeding to probate a will as one in rem, which does not necessarily involve any controversy between parties; indeed in the majority of instances no such controversy exists. In its initiation all persons are cited to appear, whether of the State where the will is offered, or of other States. From its nature and from the want of parties, or the fact that all the world are parties, the proceeding is not within the designation of cases at law or in equity, between parties of different States, of which federal courts have concurrent jurisdiction with the State courts, under the judiciary act. But whenever a controversy in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the federal courts should not take jurisdiction of the case, than there is that they should not take jurisdiction of any other controversy between the parties.

"But, as already observed, it is sufficient for the disposition of this case, that the statute of 1867, in authorizing a transfer of the cause to the federal court, does, in our judgment, by that fact invest that court with all the needed jurisdiction to adjudicate finally, and settle the controversy involved."

"Judgment reversed, and removal directed."

As to what proceedings in a probate court are proceedings in rem, compare Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. (1 Otto.) 242; Carroll v. Carroll, 60 N. Y. 121; Schneider v. McFarlane, 2 N. Y. 459.

FROST v. HOTCHKISS.

N. Y. Supreme Court, Second District, Special Term, June, 1876.

JURISDICTION OF STATE COURTS.-BANKRUPTCY.

Under the Revised Statutes of the United States, the Supreme Court of New York has no jurisdiction of an action by an assignee or trustee in bankruptcy to recover property alleged to have been conveyed by the bankrupt, in fraud of his creditors.

Demurrer to complaint.

Frost v. Hotchkiss.

Jonathan B. Frost, trustee in bankruptcy of Elias Hotchkiss, brought this action against Elias Hotchkiss and Mary L. Hotchkiss, his wife.

The plaintiff described himself in the title of the cause and the complaint as trustee of the estate of Elias Hotchkiss in bankruptcy, and in that capacity he claimed to be entitled to recover real estate in Westchester County, which, he alleged, was conveyed by the defendant, Elias Hotchkiss, to his wife, the defendant Mary L. Hotchkiss, in fraud of creditors.

The plaintiff, in his complaint, deduced his title to the property through and under a judgment of the district court of the United States, for the southern district of New York, declaring Mr. Hotchkiss a bankrupt. After setting up this judgment, the complaint stated that at a meeting of the creditors of said Eliza Hotchkiss, called under and in pursuance of said (bankruptcy) act, the plaintiff was duly chosen trustee of the estate of the said bankrupt, to whom all of the estate, property, rights, and things in action of the said bankrupt were assigned, and who as such trustee (that is, as trustee chosen at a meeting of creditors), became and was vested with the title thereto, and with a right to the possession of, and to sue for and recover the same.

The action was commenced in April, 1874.

The plaintiff's proceedings were stayed for some time under an order by the court, pursuant to section 317 of the Code, requiring the plaintiff to give security for costs, in the sum of one thousand five hundred dol lars.

During the continuance of the stay, the revised statutes of the United States came into force.

Afterwards, in July 28, 1874, the defendants served a demurrer to the complaint, in which they claimed that the court had no jurisdiction, and that the plain tiff did not show facts sufficient to constitute a cause

Frost v. Hotchkiss.

of action, inasmuch as he did not show that the title to the property had vested in him.

F. N. Bangs, for defendants.-I. The complaint does not show that title has vested in the plaintiff under section 43 of the Bankruptcy Act of 1867; title does not vest until certain resolutions have been passed by creditors, and approved by the court: nor until the choice of trustee and committee has been approved by the court: nor until the debtor has executed a deed to the trustee. The mere statement that the plaintiff has been chosen trustee does not show title in him (Wright v. Johnson, 8 Blatchf. 150; U. S. R. S. S$ 5046, 5103).

II. This court has no jurisdiction (U. S. R. S. see § 717; Martin v. Hunter's Lessee, 1 Wheat. 304, 337; The Moses Taylor, 4 Wall. 411; Exp. McCardle, 7 Id. 506; Curtis v. Leavitt, 15 N. Y. 9; Town of Danville v. Pace, 25 Gratt. 1).

Elliott F. Shepard, for plaintiffs.

BARNARD, J.-I think the revised statutes of the United States take away the jurisdiction of the State court in the action, although passed after the action was commenced. Judgment for defendant on demurrer, without costs.*

*The act of 1867 did not have this effect. Claflin . Houseman, U. S. Supreme Ct. Oct. 1876.

Miller v. Miller.

MILLER v. MILLER.

N. Y. Supreme Court, First District; Special Term, June, 1876.

CREDITOR'S ACTION.-SURPLUS INCOME OF TRUST.-INJUNCTION.JUDGMENT FOR ALIMONY AND THE MAINTENANCE OF CHILDREN.

Surplus income, actually existing in the hands of trustees, although the trust were created by, or the fund proceeded from a third person, may be reached by a creditor's action against the beneficiary and his trustees.

Hann v. Van Voorhis, 15 Abb. Pr. N. S. 79, and again in 5 Hun, 425; and Miller v. Miller, 7 Hun, 208; distinguished.

An evasive denial of the existence of a surplus will not suffice to prevent granting an injunction.

Nor will a general averment of the necessity of appropriating all the income, without specific details.

It seems, that the rule (2 R. S. 174) protecting income from trusts created by, or funds proceeding from third persons, against creditors' actions, does not apply against an action to enforce a judgment for alimony and the maintenance of the debtor's children. If the complaint alleges that a surplus of income beyond what is necessary for the beneficiary, actually exists in the hands of the trustees, an evasive denial, e. g. a denial that there is a surplus to the amount alleged, and an averment there is no surplus, is insufficient. Form of a sufficient complaint in such a case.

Motion to dissolve injunction.

Mrs. Miller brought this action in the supreme court against her former husband, and F. G. Smedley, H. E. Crampton, and Charles H. Miller, executors and trustees, under the will of J. Miller, deceased, to reach the surplus of income arising under a testamentary trust for her said former husband, and apply it to pay a judgment for alimony.

The complaint alleged the divorce by a judgment of the N. Y. common pleas, and the award to her of

Miller v. Miller.

the custody of the two children of the marriage; and the allowance to her by the judgment, of three thousand dollars per annum for her alimony, and one thousand dollars additional, per annum, to her for the support of the children; to be paid her in semi-annual instalments of two thousand dollars. That the defendant therein refused to pay the same, and was thereupon convicted of contempt, and fined, and imprisoned. That defendant kept himself concealed to evade service of the decree and demand of payment, thereby putting plaintiff to the expense of such proceedings for contempt. That subsequently the parties agreed on an amendment of the decree, reducing plaintiff's alimony from three thousand dollars to one thousand dollars, which defendant promised to pay, with the one thousand dollars for the children. That he afterwards refused to pay more than fifteen hundred dollars per annum; and paid only a part of that for the current year; and that the two thousand dollars was barely sufficient for support.

It was then alleged as follows:

"That J. Miller, late of the city of New York, now deceased, was the father of the said [plaintiff's husband], and died in January, 1874, owning and leaving a large estate, consisting of both real and personal property, and that he left an estate valued at about seven hundred and fifty thousand dollars, as near as she can ascertain the same, and that his will was admitted to probate in the city and county of New York, on January 30, 1874, a copy of which said will is hereto annexed, marked ‘A,' and forms a part of this complaint; and said defendants, [naming the executors and trustees], were appointed executors and trustees by and in said will. That as near as this plaintiff can estimate the share of said [plaintiff's husband], the income from which he is entitled to under said will, it is not far from seventy-five thousand dollars.