4 Dem. Sur. 24 | N.Y. Sur. Ct. | 1885
Mrs. Beckwith is a sister of the intestate, and the mother of Willie Beckwith and the other children, for whom the alleged trusts were created. She is a party to this proceeding, but her children and her husband áre not. Hence this court has no jurisdiction over them. They have not asked leave to intervene and be made parties. They have, through their attorney, filed some objections to the account, but, as objections, they must be disregarded, wdiile they may be considered as a notice of their respective claims, and may be deemed sufficient to warrant a direction in the decree, to the administrator, to retain a proper sum to meet the exigencies of any actions, brought in a proper forum, for the recovery of such claims.
Those items, therefore, must be considered as stricken from the account.
There also appearéd, in the account of the administrator, as a charge against him in the amount of the inventory, an item which was thus stated in the latter:
“Elizabeth Collyer in trust for George B. Collyer, Bowery Savings Bank book, No. 329,357; amount, with interest, to Jan. 1, 1883, $2,589.84.”
The entry on the pass book was as follows :
“Jan. 18, 1870, Elizabeth Collyer in trust for George B. Collyer, $2,000.”
George B. Collyer, one of the next of kin of decedent, contended that the amount of such deposit and interest belonged to him, and objected that the same
It was objected, on behalf of George B. Collyer, at the commencement of this controversy, that this court had no jurisdiction to try and determine the question as to the validity of the alleged trust; but as it was considered that the amount of the distributive share of each next of kin could not be fixed by the decree as required by statute, without such determination, the objection was overruled. The transaction is not in the nature of a claim of a creditor against the decedent, but rather resembles the case of a gift causa mortis (Fowler v. Lockwood 3 Redf., 465). If there was a valid trust, it only terminated with the death of its creator. I had occasion to discuss the power of Surrogates’ courts on this subject in DuBois v. Brown (1 Dem., 317).
It seems that the decedent drew the interest on the trust deposit, the first time it became payable, and for several years consecutively. The interest so drawn out is not here claimed by the cestui que trust, and therefore no question is raised upon that subject; but I am inclined to think that, had she continued to draw such interest from the commencement down to the time of her death, that very fact, regarded as a part of the res gestee, would indicate that she intended to constitute herself trustee of the principal fund only. Of course, she could not have drawn the interest at the time she made the deposit, but she availed herself of the very first opportunity to do so, and the act might fairly be considered as relating back to and characterizing the original intention in making the deposit, and the fact of her continuing to draw it regularly during her life, would tend to strengthen the idea. Here, however, she ceased for several years to receive it, and the fair inference from that omission is that she intended to abandon it to her said brother from that period.
The decree of distribution will be prepared accordingly.