27 N.Y.S. 1049 | N.Y. Sup. Ct. | 1894
The complaint in this action alleged the death of one Felix Govin y Pinto in May, 1891, leaving a last will and testament, which was duly admitted to probate in the office of the surrogate of the county of New York, and letters testamentary issued to the defendant; that the plaintiff was the owner and entitled to the immediate possession of a certificate for $10,000 issued by the United States government, with interest thereon payable at the rate of 4-J- per cent, per annum, and that prior to the 8th of November, 1881, said certificate, so belonging to the plaintiff, was delivered to the deceased in trust to and for the benefit of the plaintiff, and that the deceased and his legal representatives from time to time collected the interest which accrued thereon; that the deceased and the defendant in this action have refused to deliver to the plaintiff said certificate of $10,000, and the interest which ac
The plaintiff, at the trial, to maintain the issues upon his part, introduced the following instrument, which was signed by the deceased, and acknowledged by him before a notary public. The defendant’s counsel objected to the introduction of the paper upon the ground that there was nothing to show that it had ever been delivered by the deceased. This objection was overruled, and the paper was read in evidence as follows:
“State and City of New York, May 25tk, 1881.
“For the sum of $1, to me in hand paid, the receipt of which is hereby acknowledged, and for certain other valuable considerations, I do hereby transfer, set over, and deliver to the young man known as Felix Govin Diaz, a native of Matanzez, Island of Cuba, now living at No. 147 East Thirty-Ninth street, in the city of New York, two certificates for $10,000 each ($20,000) of the United States four and a half per cent, loans under the act of congress entitled ‘An act to authorize the refunding of the national debt,’ approved July 14, 1870, issued, one Jan. 18, 1876, Letter A, 13,235; and the other one issued May 17, 1877, Letter A, 10,642. Said certificates will be retained in my custody for the present, as trustee for the said Felix Govin Diaz.
“Instead of two certificates, only one of ten thousand dollars.
“Felix Govin y Pinto. [L. S.]”
The plaintiff then offered and read in evidence the original will and codicil of the deceased, which was duly executed.
It appeared that after the death of said Pinto, and on the day of his funeral, his safe was opened, and it was found to contain, among other things, an envelope, in which were $50,000 of United States bonds, and the paper above mentioned; and upon the envelope was written in the handwriting of the decedent the following:
“This envelope contains eight certificates of United States four and a half per cent, loan, all of sixty thousand dollars ($50,000), which belong to Felix Govin Diaz, ten thousand; Emilia Govin and Guillermina Govina, $20,000 each. I will preserve the interest at present to help at their subsistence.
“New York, May 25th, 1881. Felix Govin y Diaz.
“Felix, ten; Emilia, twenty; Guillermina, twenty.”
There was also found another envelope containing a paper, which read as follows:
“In possession of Ramon M. Estevez there are sixty thousand dollars in in U. S. bonds,.which I declare belong to the three children, brother and sisters, Emilia, Felix, and Guillermina Govin, residents of this city, living*1051 at 147 E. 39th St. Besides, in my box, there is a legacy which contains $29,000 R. R. bonds, Iowa Division. Of these ten thousand belongs to Luz Diaz y Sanchez, mother of the above-mentioned individuals. She has a note for the same, signed by me; and the rest belongs to the above-mentioned Emilia, Felix, & Guillermina, in equal parts. No one may go contrary or against this declaration, as it is based under conscience and justice. To me alone is reserved the right to do with this money as I deem proper.
“New York, Dec. 8th, 1883. Felix Govin y Pinto.
“Acknowledged before me this 15th day of December, 1883.
“Jas. W. Hale, Notario Publico, 4 Hanover St.”
This envelope was indorsed as follows:
“A declaration in favor of Emilia, Felix, Guillermina Govin, and Luz Diaz y Sanchez, who lived in 147 E. 39th St.”
These two envelopes, with their contents, were, on the day after they were so found in the decedent’s safe, sent to the mother of the plaintiff.
The only portion of the will of the testator which is claimed to be applicable to the questions in dispute in this action is the fifth clause, which is as follows:
“Fifth. There are in my possession, under cover, sixty thousand dollars, belonging to Emilia, Felix, & Guillermina, residents to-day of New York-twenty thousand dollars to each one,—in four and a half per cent, bonds of the United States of America, which will be delivered to them as they reach twenty-one years; and in the meanwhile they will receive the interest. The surname of the three persons indicated in this article is Govin.”
It further appeared that the deceased during the years 1877 and 1878 purchased and paid for by his own checks, among others, the two bonds referred to in the instrument of the 25th of May, 1881, herein set forth; and that the bond which forms the subject-matter of this suit—one of the two therein mentioned—was sold by the deceased on the 5th day of September, 1890; and that the deceased, from the time he acquired the same until its sale, collected the interest thereon.
It was claimed upon the part of the plaintiff that the evidence showed title in him to the bonds which had been sold by the deceased. It was objected upon the part of the defendant that no such title was shown, in that the property was by the evidence proved to belong to the deceased, and that the alleged transfer was of no avail, because it had not been delivered, and therefore was never executed. The learned court, probably relying upon the case of Govin v. De Miranda, 140 N. Y. 468, 35 N. E. 626, which held that the parties interested in the securities referred to in the paper above mentioned, acknowledged December 15, 1883, had a right to recover the same, directed judgment in favor of the plaintiff. In this, we think the learned court erred. There is a marked distinction between the facts of the case at bar and those in the case cited. It is claimed upon the part of the plaintiff—and his right to recover must necessarily rest upon that claim—that the security which is sought to be recovered in this action was transferred by the deceased to the plaintiff by the instrument of the 25th of May, 1881. The validity of this contention must depend upon the fact as to whether an execution of such instrument has been established.
But it .is urged that by this paper the deceased created himself a trustee of these securities for the plaintiff, and that such trust was irrevocable; referring to the case of Martin v. Funk, 75 N. Y. 134. But the facts of that case are entirely different from those in the one at bar. In no case has it ever been held as yet that a party may, by transferring his property from one pocket to another, make himself a trustee. In every case where a trust has been established, the party creating it has placed the evidence thereof in the custody of another, and has thereby shown that it was intended to be a completed act. In the case at bar the deceased kept all the evidence of transfer within himself, which is more consistent with the idea of an uncompleted purpose than of one which has been carried into final effect. And the fact that the deceased treated this