9 Barb. 9 | N.Y. Sup. Ct. | 1850
The assignment of the bonds and mortgages against E. Hills and H. and S. Waller, by Daniel Stevenson to John McDougall, the father of the plaintiffs Mrs. Gilchrist, Mrs. Hall, and Daniel and William McDougall, and the execution of the instrument in writing executed by John McDougall and his three adult children, and the delivery of the bonds and mortgages to the defendant, under an agreement that they should be so delivered, and that he should collect the moneys due thereon and pay over the same to the persons declared by such instrument to be interested therein, constituted a valid and perfect gift of the bonds and mortgages to the children of John McDougall. / Delivery is essential, both at law and in equity, to the validity of a gift of personal property. The delivery may be directly to the donee, or to a third person for him, or for his benefit. The delivery must be absolute and unconditional. When the gift is perfect it is irrevocable. (2 Kent’s Com. 438, 440. 4 Id. 455. Mickles v. Colvin, 4 Barb. Sup. C. Rep. 304.) To make a perfect delivery, the donor must part not only with the possession but also with the dominion of the property. (2 Kent’s Com. 439.) In the assignments in this case by Daniel Stevenson, of the bonds and mortgages in question to John McDougall, it is stated that they are made in accordance with a certain contract. The contract referred to must have been the one of the date of Oct. 22, 1839; for that was the only contract ever made by the parties in relation to the bonds and mortgages. In one of the assignments it is expressed to be for the benefit of children; meaning undoubtedly the children of John McDougall. The contract of the date of Oct. 22, 1839, was drawn up by the donor Daniel Stevenson, and it expressly declares that the moneys due on the bonds and mortgages are to be divided among the children of John McDougall. And the adult children, and John McDougall in behalf of the minor children, in consideration of the gift
The payment to the North Argyle church was not made a condition precedent to the gift to the children of John McDougall. That payment rested in covenant only. The gift was complete and perfect, and the remedy of the church to enforce payment of the annuities due to it, was by an action on the covenant, or by a suit to compel specific performance of the agreement to give the church further security for the payment of the annuities. No other trust or conditions are shown, except those
The re-assignment of the mortgages by John McDougall to Daniel Stevenson, and the delivery of them to the latter by the defendant, were breaches of trust both in the defendant and in John McDougall. Daniel Stevenson had no right to demand a re-assignment. He had parted with his whole title to, and all dominion over the mortgages. He had made an absolute gift uof them to the children of John McDougall; and the gift was irrevocable. The defendant had full notice of the interest of the children of John McDougall in the mortgages. He was a witness to the agreement which declared the nature and extent of that interest, and he had agreed to receive such mortgages as agent and trustee, and to collect the moneys due thereon, and pay the same over to such children and to the North Argyle church. After full knowledge that the children of John Mc-Dougall were the equitable owners of the mortgages he delivered them up to Daniel Stevenson. This was a breach of trust in the defendant. Daniel Stevenson taking a re-assignment of the mortgages, and accepting a re-delivery of them with full knowledge of the equitable title thereto of the children of John Mc-Dougall, also became a trustee, subject to the same obligations as were John McDougall and the defendant. And he was obligated to pay over to such children their full share of the moneys received by him on such mortgages. (2 Story's Eq. Juris, sec. 1257. Murray v. Ballou, 1 John. Ch. Rep. 565. Id. 339.
The plaintiffs can proceed against him alone, without uniting with him as a defendant John McDougall. Where there are several trustees who unite in a breach of trust, they are equally liable to the cestuis que trust. And the latter, in seeking relief against the breach of trust, may proceed against all or either of the trustees. (Bailey v. Inglee, 2 Paige, 279. 4 Id. 23. Wilson v. Moore, 1 Mylne Keen, 126. 3 Swans. 74.) The bonds and mortgages in question did not pass under the will of Daniel Stevenson. He had no interest in them, to bequeath. And the defendant, as his residuary legatee and executor, can claim no title to them. Trust property, although it has been sold or assigned by the trustee, so long as it can be traced and distinguished from other property, may be claimed by the cestuis que trust, whenever the purchaser purchases with notice of the trust. (1 John. Ch. Rep. 118. Kip v. Bank of N. York. 10 John. 63. 1 John. Ch. Rep. 63. 4 Id. 137.)
The plaintiffs are not estopped from claiming their shares of the bonds and mortgages by accepting the legacies given to them in the will of Daniel Stevenson. Daniel Stevenson did not stand in loco parentis to the children of John McDougall; and the doctrine of satisfaction or ademption has therefore no application in this suit. It is only where a parent, or other person in loco parentis, bequeaths a legacy to a child or grandchild, and after, in his lifetime, gives a portion to or makes a provision for the same child or grandchild, that under certain circumstances such portion or provision will be deemed a satisfaction, or an ademption, of the legacy. (2 Story’s Eq. Juris. §§1111, 1116, 1117, 1118.)
The defendants must account to the plaintiffs for their shares of all the moneys paid on the bonds and mortgages since the 22d of Oct. 1839, the date of the agreement executed by John