APPEAL from an order of the Surrogate's Court of Fulton County (VOSBURGH, S.), entered January 25, 1954, which dismissed the petition of appellant as not being within the power and jurisdiction of the court.
Richard J. Mackey for appellant.
Walter T. Kohn and J. Charles Weschler for respondents.
The petitioner is the former wife of the respondent Walter Wooster Richard, who is the beneficiary under a testamentary trust of which the other respondent is the trustee. The will creating the trust directed that the income be paid to Walter Wooster Richard during his lifetime and that the principal be paid over to his heirs at law upon his death. The petition alleges that the income has run about $23,000 per year.
The petitioner obtained a divorce in Cuba upon the ground of nonsupport, the decree directing that the defendant pay $150 per month for the support of a child of the marriage. There was also a provision in the divorce decree for alimony for the petitioner but her right to alimony terminated upon her subsequent remarriage.
At various times, the petitioner encountered difficulty in collecting the monthly installments, resort to an action at law having been necessary on some occasions, although it appeared upon the argument of the appeal that all installments had been paid to date and that the respondents' attorney had given his assurance that they would be paid in the future as they fell due.
However, in view of the past difficulties, the petitioner was unwilling to accept this assurance and, in this proceeding, she sought an order from the Surrogate's Court of Fulton County, under whose supervision the testamentary trust was being administered, authorizing and directing the trustees to pay the sum of $150 per month out of the trust income directly to the petitioner for the support and maintenance of the child.
The Surrogate held that he was without power to make such a direction and accordingly he dismissed the petition.
The petitioner contends that, under section 40 of the Surrogate's Court Act, conferring broad equity powers upon the Surrogate's Court, the court below had the power to grant the continuing direction to the trustee which she sought. Section 40 authorizes each Surrogate 'To administer justice in all matters relating to the affairs of decedents, and * * * to try and determine all questions, legal or equitable * * * as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter'. It is certainly just and equitable that the beneficiary of the trust should support his infant child and the amount sought is conceded to be a fair and reasonable one, but the grant of power to the Surrogate's Court does not authorize the Surrogate to make any and all orders or directions which serve the cause of justice and equity. The quoted section confers procedural jurisdiction upon the Surrogate to grant equitable as well as legal relief but, before he can grant relief in a particular case, it must appear that, as a matter of substantive law, grounds for the relief exist.
There is no general principle of substantive law which authorizes a court which has supervision of the administration of a trust, to make an allocation of the income of the trust for the support of the family of the life beneficiary, and to order payment of a part of the income directly to the family, whenever the beneficiary neglects to provide for his family's support. The reported cases in which courts have made continuing directions of this kind fall into three categories, none of which embraces the case here presented.
(1) The trust instrument may itself, expressly or by implication, provide for the support of the family of the named beneficiary as well as for the support of the beneficiary himself. In such a case the wife or children of the named beneficiary may be regarded as additional beneficiaries of the trust and the court supervising the trust may accordingly direct the trustee to make appropriate payments out of the income for their ...