#### Lambert D. Tyler, Plaintiff, *v.*Celestia A. Ballard, Defendant.

(Supreme Court, Broome Special Term,

May, 1900.)

Execution — Permanent exemption of realty purchased with pension money.

Beal property acquired, after recovery of a judgment against her, by a soldier’s widow from pension money due her husband, is absolutely exempt from levy and sale on execution (except for taxes and assessments), while in her possession and is equally exempt, after her death intestate, in the hands of her heirs, as the judgment of the creditor has never been a lien upon the property.

Application for an order, granting leave to' issue execution upon a judgment recovered in 1889, in the Supreme Court, and assigned to the applicant.

Edward W. Hyatt, for assignee of judgment,

H. Austin Clark, for administrators and for Antoinette Dim-mick, heir of deceased defendant and owner.

Lyon, J.

Application of Ellis M. Santee for an order granting leave to issue an execution upon a judgment for $130.50, recovered in September, 1889, by plaintiff against defendant in the Supreme Court of this State, and in that month duly docketed in Tioga county, and in December, 1897, assigned to the applicant.

*541The defendant above named acquired title to a house and lot of one acre of land, and to an adjoining lot of twenty-two acres of land, situate in Tioga county, in 1891. She immediately conveyed the twenty-two-acre parcel to Antoinette Bimmiek, but retained the title to the house and lot until the time of her death, which occurred in October, 1895. She died intestate and administrators of her estate were appointed in 1896. Ho part of the judgment was ever paid, and no execution was ever issued thereon.

It is conceded that both pieces of real property were purchased wholly with pension moneys received by the defendant in or about the year 1889 as the widow of Gardner Ballard,, who was a soldier in the Union army, in the late Civil war. The applicant for the order, as assignee of the judgment, contends that the judgment became a lien upon both pieces of real property as soon as the title thereto vested in Celestia A. Ballard, the defendant, and that the judgment has ever since remained a lien, although, not enforcible by a sale under execution during the lifetime of the pensioner. Manifestly, the order cannot be granted unless the judgment is a lien upon the real property. I think it is not a lien and never was a lien. Section 1251 of the Code of Civil Procedure provides that, “ Except as otherwise specially prescribed by law, a judgment * * * binds, and is a charge upon, for ten years after filing the judgment-roll * * * the real property and chattels real in that county, which the judgment debtor has, at the time of so docketing it, or which he acquires at any time after-wards, and within the ten years.” Section 1380 continues a lien created as prescribed in section 1251, existing at the decedent’s death, for three years and six months after letters of administration have been duly granted upon the estate of the decedent. Hence, in case the judgment ever became a lien upon these two pieces of real estate, such lien existed at the time these proceedings were instituted as to the one-acre parcel owned by defendant at the time of her death.

Section 1393 provides that a pension hereafter granted by the United States for military services is exempt from levy and sale by virtue of an execution, except that real property purchased with the proceeds of a pension so granted, but owned by the pensioner or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. I think the exemption provided by section 1393 is one of the exceptions *542referred to in section 1251. It seems to. have been the intention of the Legislature not only to exempt the pension certificate itself from the claims of creditors, but also the property purchased wholly with pension moneys. In Burgett v. Fancher, 35 Hun, 641, and Stockwell v. Bank of Malone, 36 id. 583, it was held that moneys received from a pension and deposited in the bank in the name of the pensioner were exempt, although the relations between the bank and the pensioner were those of debtor and creditor. In Yates County National Bank v. Carpenter, 119 N. Y. 550, the court held that, where the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt. But the applicant contends that the exemption is simply “ from levy and sale by virtue of an execution, and that the statute is satisfied by holding that the lien of the judgment attached to the real property of the pensioner, Celestia A. Ballard, and that the right to enforce such judgment by levy and sale was suspended during her lifetime only, and that upon her death, the real property having passed into the ownership of persons not entitled to protection as pensioners, the judgment-might be enforced by a sale under an execution. If such be the proper construction of this statute, the law-makers signally failed' in effectuating the purpose plainly intended. The effect of such construction would be practically to deprive the pensioner purchasing a home for himself and family of the benefit of his pension to the extent of the claims of creditors seeing fit to put their demands into judgment. While the judgment creditor might not be able to enforce the collection of his judgment for a period, the pensioner would not be able to transfer his real property except subject to the lien of the judgments, and the judgment creditors, rather than the pensioner, would obtain the benefit of the pension moneys. This result it was the plain design of the statute to avoid. The exemption from levy and sale was an absolute exemption of the pension moneys from any lien or claims of creditors, and it was the plain intention of the statute that property necessary for the support and maintenance of the pensioner, purchased with pension money, should be as exempt from the claims and liens of creditors as the money itself. Yates County National Bank v. Carpenter, *supra.*

The decision in Matter of Winans,- 5 Dem. 138, cited by the *543applicant, simply holds that pension moneys of a deceased pensioner are liable for the debts of her estate, to be paid in dne course of administration, and indicates that the applicant’s remedy, if any, is by means of proceedings in Surrogate’s Court.

It may be added that, as to the twenty-two-acre parcel, the judgment, having been obtained more than ten years before the making of this application, could in no event be a lien upon the twenty-two-acre parcel conveyed by Celestia Ballard to Antoniette Dim-mick in 1891.

The application must be denied, with costs.

Application denied, with costs.