In the Matter of the Examination of William S. J. Seymour and Alexander R. Benson, Third Parties, Appellants, upon the Application of John McKinstry, Judgment Creditor, in Proceedings Supplementary to Execution, in the Action Entitled John McKinstry, Plaintiff, v. Elbert S. Atwood, Defendant

In the Matter of the Examination of William S. J. Seymour and Alexander R. Benson, Third Parties, Appellants, upon the Application of John McKinstry, Judgment Creditor, in Proceedings Supplementary to Execution, in the Action Entitled John McKinstry, Plaintiff, v. Elbert S. Atwood, Defendant. Bupplementa/ry proceedings — the interest of a beneficiary in the income of a trust fund payable “ to him or to his wife" cannot be reached thereby. The interest of a judgment debtor as beneficiary of a trust created by the will of his mother, by the terms of which the trustees were directed to hold certain property in trust during his life and “ to pay to him or to his wife in their discretion the income thereof for his support and the support of his family,”' cannot be reached in proceedings supplementary to execution. Appeal by William S. J. Seymour and Alexander R. Benson from an Order of the County Court of Columbia county, entered in the office of the clerk of the county of Columbia on the 12th day of September, 1902, modifyingan order theretofore entered in the action. On the 18th day of August, 1902, an order was made by the county judge of the county of Columbia directing the appellants to' attend and be examined before a referee concerning the property of the judgment debtor, and said order contained an injunction as follows : “ Said William S. J. Seymour and Alexander R. Benson are hereby severally forbidden from making or suffering any transfer or other disposition of, or interference with the property of said judgment debtor or in which he may. have any legal or eguitable interest.- * '* * ” The appellants upon their affidavit showing; that they were trustees under the will of one Hasbrouck, and that under said will they held in trust certain property which they were authorized “ To hold, invest and to keep invested during the life of my (testatrix’s) son Elbert Atwood, (judgment debtor) and to pay to him or to his wife in their discretion the income thereof for his' support and the support of his family, his or her receipt therefor to be full acquittance to such trustees.” And also showing that the judgment creditor did not claim that the appellants had in their possession or subject to their control any personal property or interest in personal property of the said debtor other than the income on said trust fund*, obtainéd an order to show cause why said order of August eighteenth should not be vacated or modified so as not to apply to or enjoin the said William S. J. Seymour and Alexander R. Benson as trustees under said will. On the return of said order to show cause the order appealed from was made tyhich provides:' “ That said order of August 18, 1902, be so modified as not to enjoin said William S. J. Seymour and Alexander R. Benson as trustees under the will of Laura S. Hasbrouclt, deceased, from paying to the judgment debtor or his wife in their discretion, such portion of the income on the trust fund in their'hands as is necessary for the support of the judgment debtor and the support of his family.” Willard Peck, for the appellants. Henry Van Hoesen, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: Section 2463 of the Code of Civil Procedure provides: “ This article does not * * * authorize the seizure of or other interference with any property * * * or,any money, thing in action, or other property held in trust for a judgment debtor where the trust has been created by or the fund so held in trust has proceeded from a person other than the judgment debtor.” The order appealed from does interfere with property held in trust for the judgment debtor at least to the extent that the income thereon exceeds the necessities of the judgment debtor and his family. It is also left to the trustees to determine at their peril the extent of such necessities. The interest of a beneficiary in a trust fund created by a person other than the debtor, cannot be reached in supplementary proceedings. It must be reached, if at all, in a direct action. (Levey v. Bull, 47 Hun, 350; Monolithic Drain & Conduit Co. v. Dewsnap, 25 Civ. Proc. Rep. 380.) All concurred. Order reversed, with ten dollars costs and disbursements, and order of August 18,1902, amended by adding thereto : “ This order shall not be construed to apply to or enjoin said William S. J. Seymour and Alexander R. Benson, as trustees under the will of Laura S. Hasbrouck, deceased, nor authorize their examination in relation to the trust fund.”