147 N.Y.S. 263 | N.Y. Sup. Ct. | 1914
The plaintiff says that a gift in his mother’s will, absolute in form, was subject to a secret trust, which he asks the court to declare, and, declaring, to enforce. Fredericka Golland died in September, 1911, the owner of two houses in the city of New York. She left six children. Two of them, Morris and Jacob, were successful business men, possessed, it was then supposed, of ample wealth. Two, a daughter Annie and a son Isaac, had been deaf and dumb from birth, had been judicially declared insane and were inmates of asylums. Two others, a daughter Amelia, and a son Israel, the plaintiff, were without business experience, the former devoted to her home duties, the latter an employee in a subordinate capacity of his more successful brothers. The dominant personality in the family life was that of Morris Golland. His parents and his brothers and sisters looked to him for guidance in everything. ■ There was a relation of complete dependence and perfect confidence which happily he has not abused. As early as 1907 the terms of the mother’s will were the subject of discussion. For many years the Golland family had the counsel of the Hon. Julius M. Mayer, now one of the judges of the United States District Court. Judge Mayer was more than the family adviser; he was also a close friend of Morris Golland. He pointed out the importance that Mrs. Golland should make a will, because if she were to die intestate the title to an interest in the real estate would vest in the incompetent children, and a sale might be impossible. Morris Golland, thus prompted, discussed the situation with his mother. He told her that he and his brother Jacob wished nothing for themselves; that
The provisions of the will, though they place the legal title in Morris and Jacob, suggest the existence of some undisclosed promise. She appoints them her executors and trustees and directs them to pay the income of her real estate to her husband, Isaac Golland, for life. On the death of her husband, she gives her real estate to Jacob and Morris. If either of them is then dead, one-half of the real estate is given to the survivor. The other half in that event is to go to her daughter Amelia and her son Israel, one-quarter to each. She then makes this significant declaration: “ I have made this disposition of my property to my sons Jacob and Morris in the event that they survive my husband Isaac Golland, because I have entire confidence in them, and I feel that they will be eminently just and fair in their treatment of my remaining children. ’ ’
1A little more than a year after the mother’s death misfortune overtook the sons on whom she had so implicitly relied. In January, 1913, they were adjudged bankrupts. The trustee in bankruptcy has: de
That an agreement was made, as stated by Judge Mayer and.Morris Golland, I entertain no doubt. I am not unmindful that such an agreement, asserted for the first time after the bankruptcy of the holders of the legal title, ought to be clearly proved. In this case, however, no claim is made, and none with any justice could be made, that the plaintiff’s witnesses have stated anything but the truth, as they recall it. I accept Judge Mayer’s testimony unreservedly. It does not need corroboration, but I may point out that it has it, alike in the probabilities of the transaction and in the internal evidence of the will. One finds it difficult to believe that the prosperous sons would have been favored to the exclusion of less fortunate or of afflicted children unless there had been some understanding which would correct the apparent inequality. The' provision for the distribution of the property in the event of the death of either Morris or Jacob is significant. In that event, one-quarter is to go to Amelia and one-quarter to Israel, the children who, not being incompetent, could receive with less danger the legal title to the shares that were in any event designed for them. The other half is to go in the event of the death of Morris to Jacob, and in the event of the death of Jacob to Morris. The purpose plainly was that the beneficial enjoyment of that part should be preserved for those that were incompetent. To sup
Holding as I do that the agreement was made as the plaintiff’s witnesses have stated it, the question is whether it is capable of judicial enforcement. The counsel for the trustee in bankruptcy says that the trust is void because not in writing. I do not share
The objection is made, however, that, even though a writing be not essential, the trust must be declared with reasonable precision and certainty, so that a court of equity may intelligently decree its execution, and it is said that these requisites are lacking in this case. It does not seem to me to be so. The test, I think, must be this -, if the oral agreement, as stated by the witnesses, were, without other change of form, to be reduced to writing, would the court be able to
The objection is also made that the promise which induced the gift was made by Morris only and not by Jacob, and hence it is insisted that Jacob’s interest is not subject to a trust. To dispose of that objection properly it is needful to review the leading decisions. In O’Hara v. Dudley, 95 N. Y. 405, the gift was to / three persons as joint tenants and not as tenants in common. It was held that in such a situation the promise of one was binding upon the others. The next case to be mentioned is Amherst College v. Ritch, 151 N. Y. 282. There a gift was made to three tenants in common and the promise was by one only, but he gave it in behalf of the others as well as for himself. In this situation, the court held that all were bound; and that the legatees, by accepting the gift, ratified and
Next in order is the case of Edson v. Bartow, 10 App. Div. 104; 154 N. Y. 215. There, as in 'Amherst College v.-Bitch, the gift was to tenants in common and the promise was made by one only, but the distinguishing feature was that the promisor spoke for himself alone and did not assume to bind the others. This was the controlling element both in the Appellate Division and in the Court of Appeals. There is a very full discussion in the opinion of Eumsey, J., at the Appellate Division, an opinion announced, it should be noted, before the decision of the Court of Appeals in Amherst College v. Ritch. How much may be said in favor of the view that even in such circumstances
It is not a circumstance of moment that the title has now passed away from the brothers and is vested in a trustee in bankruptcy. He is not a purchaser for value. He holds the estate subject to all the equities that attached to it in the bankrupt’s hands. Security Warehousing Co. v. Hand, 206 U. S. 415, 423. If it would constitute a fraud for Jacob and Morris Golland to repudiate the trust, it would equally be to sanction a fraud for the court to permit the repudiation of the trust by their voluntary assignees.
One other question remains to be considered. The testimony of Morris Golland was received under objection that the witness was incompetent under section 829 of the Code to testify to a personal transaction with his mother. A motion was later made to strike out his testimony on the same ground, and on that motion, with the consent of counsel, decision was reserved. Morris Golland is, it is true, a party, but in testifying in behalf of the plaintiff he is not a per
These are the only arguments urged by the trustee in bankruptcy in support of the objection. The point may, however, be made that -under Rosseau v. Rouss, 180 N. Y. 116, the plaintiff derives his title from, through or under Morris Gotland, and that the latter is thus disqualified from testifying in the plaintiff’s behalf against a person deriving title from, through or under the decedent. Rosseau v. Rouss was a case of an executory contract. This is a case of an executed gift. I do not think that the plaintiff derives title from, through or under Morris Gotland. The plaintiff derives title from the testatrix. Where a gift is made to a trustee for the use of another, the fact that the trustee undertakes to fulfill the trust does not make him the source of the beneficiary’s title. The source of title is the same whether the trust is declared in the will or is established by word of mouth. The trustee never gained title except in subordination to the trust. Amherst College v. Ritch, 151 N. Y. 282, 324.- Equity does not create a trust but declares one to which the land has been continuously subject. The plaintiff does not succeed to any title formerly vested in Morris
Judgment will therefore be rendered in favor of the plaintiff for the relief prayed for in the complaint. Since it was the duty of the trustee in bankruptcy to defend the suit there will be no costs to either party.
Judgment accordingly.