29 N.Y.S. 917 | N.Y. Sup. Ct. | 1894
Having critically read and carefully considered all the evidence found in the appeal book upon the question of fact arising during the trial, we are of the opinion that the findings of the trial judge are supported by evidence, and are in accordance with the weight of the evidence, notwithstanding the testimony offered by the plaintiffs upon some of the vital issues of fact is contradicted by the testimony offered by the defendant in that regard. From the findings thus made, it appears that at the time the father of the plaintiffs obtained the second certificate, and made the same payable to his sister, Clara Auer, the defendant, the same was made payable to her “pursuant to an express agreement and understanding between the said John Hirsh and his sister, the said defendant) the purport of this agreement and understanding was that she, the said defendant, should, on the death of the said John Hirsh, receive the proceeds of that insurance certificate, to wit, two thousand dollars, and from these proceeds pay his funeral expenses, and pay for a monument, using for such purposes as much money as should be necessary, not exceeding five hundred ($500) dollars. The remainder of such proceeds was, according to the same agreement, to be paid by the defendant, upon receipt thereof by her, to the three children, the plaintiffs, share and share alike.” The father paid the dues and assessments to the order down to the time of Ms death, except one, which was paid shortly thereafter by his children. His sister, the defendant, paid no premiums to the order, nor did she in any way advance any money or valuable thing to the order, or to her brother, the insured. At the time of his death all the children were under age, and he left no other provision or property for their comfort and benefit. He retained possession of the certificate. The same was
“It is well settled that a formal or even a written agreement is not necessary to create a trust in money or personal estate.”
In Barry v. Lambert, 98 N. Y. 306, Chief Judge Buger said:
“It is well settled that a trust in personal property may be created by paroi and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply that the party making them intended to divest himself of his interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust, even as against the owner, and although he continues to rdtain possession of the property devoted to the trust. But when the legal title is in one party, and the equitable ownership in another, it is only necessary for those facts to appear, in order to constitute the holder a trustee for the benefit of the other.”
In Gilman v. McArdle, 99 N. Y. 451, 2 N. E. 464, it was again held that a trust, as to personal property, may be created without writing; and in the same case it is observed that a trust may be created although it is to be executed after the death of the creator. The doctrine is again stated in Re Carpenter, 131 N. Y. 86, 29 N. E. 1005, and cases referred to.
We cannot assent to the contention of the appellant that the acts, declarations, or evidence of the admissions of the defendant in respect to the agreement were inadmissible, or that they tended “to vary or contradict the terms of the certificate itself, and are insufficient to raise a trust in respect to the proceeds of said certificate.” Doubtless, as between the order and the defendant, the certificate was the only evidence of agreement on the part of the order; and doubtless she, in view of that language, was entitled to receive, as she did, the moneys from the order in liquidation of the certificate. However, when she received the money, having made the agreement to hold it for the purposes mentioned in the agreement, a trust was fastened upon the money, which she was in duty bound to carry out. In the Carpenter Case, supra, there were formal written assignments to Pierce of the notes and securities, who took the legal title thereto, and it was said in respect thereto:
“The petitioner took an equitable interest only, which she could enforce through the medium of a trust. Pierce was not only vested with the legal title to the original notes, but he was to take any new notes in his name. The rights of the petitioner were those of a beneficiary of a trust. There can be no doubt but a trust may be created to collect and pay over the proceeds of notes to a person designated by the creator of the trust.”
Appellant’s learned counsel calls our attention to Steere v. Steere, 5 Johns. Ch. 1, which related to real estate; and while we may
2. When one of the plaintiffs was upon the stand, her attention was called to a conversation which she had with the defendant, her aunt, on the occasion of carrying the policy to her house, on the 2d day of March. The questions calling for that conversation were objected to, and one of the grounds stated was “that a personal transaction or communication with the deceased by this witness can’t be proved by a conversation had between this witness and the defendant.” Thereupon, the court observed: “What she says that the deceased stated to her is perfectly competent, but that don’t prove that the deceased said it. The conversation between the witnesses and the defendant is competent. I will give you an exception.” We think the ruling is in accordance with the doctrine stated in Hier v. Grant, 47 N. Y. 278.
We have looked at the other exceptions in the case, and are of the opinion that they do not present any error which requires us to disturb the conclusion reached at the circuit. The trial judge delivered an extensive opinion, fully and fairly commenting upon the evidence, giving cogent reasons for his conclusion upon the evidence, and stated several authorities which sustain the conclusion of law announced; and upon them, as well as upon the views already expressed, we are of the opinion that the decision made at the circuit should be allowed to stand. Judgment affirmed, with costs. All concur.