The defendant is a married woman, residing in Rochester; Her father, who resided in Canada, died in 1874, and devised the greater part of his property to trustees. Part of the property was a house and lot in Rochester. In respect to that, the trust was to give to the defendant “the free and unrestrained use, occupation and possession thereof during the term of her natural life only,” and after her death to convey the same to her children in fee. The testator left personal property also, of the value of $29,000, invested in British Securities, the income of which the trustees were directed by the will to pay to .the testator’s widow to a specified amount, and in. case there should be a surplus, to 'divide it among the testator’s children, and after the death of the widow to pay to each of the daughters then living the income of a certain share of the estate during her life. The widow is still living, and it does not appear that there is any surplus. The defendant is in possession of the house and lot in Rochester.
The order appealed from directed the defendant to execute an assignment to the receiver of her interest in said house and lot, and also “ all her right, title and interest, claim and demand whatsoever, both in law and equity, and in possession and expectancy of, in and to the annual income ” arising from the said investments.
We think the order cannot be upheld, as to the real estate. 'That being situated within the jurisdiction of the court, an assignment is unnecessary. Whatever title, estate or interest the *502defendant may have had in it capable of being aliened, if she had any at the time of the appointment of the receiver, became vested in the receiver, by virtue of his appointment, followed by the filing of the requisite security, and the entry and recording of the order of appointment in the proper clerk’s office, without any conveyance being executed to him by the judgment-debtor.
(Wing v. Disse, 15 Hun, 190.) If, however, she is to be regarded as taking a beneficial interest in the rents and profits merely, and not in the land itself, then, under our statutes of uses and trusts, her creditors can reach only the surplus of such rents- and profits beyond the sum that may be necessary for her support. (1 R. S., 729, § 57.) The same rule applies to the income of the personal estate. (Williams v. Thorn, 70 N. Y., 270.) But, in either case, the technical legal interest of the beneficiary in the surplus-cannot pass to a receiver in supplementary proceedings. Such surplus is not ascertainable in proceedings of that nature, but only in a suit where direct issue is made on the amount necessary forthe debtor’s support. (See Graff v. Bonnett, 31 N. Y., 9; Campbell v. Foster, 35 id., 361; Scott v. Nevius, 6 Duer, 672; Williams v. Thorn, supra.)
These views lead to a reversal of the order.
Talcott, P. J., and Hakdin, J., concurred.Order appealed from reversed, with ten dollars costs and disbursements.