135 Misc. 686 | N.Y. Sur. Ct. | 1930
The executors seek to obtain an adjudication that certain securities now in the possession of a-stock brokerage firm, carried in the name of James D. Peck, the infant son of the decedent, are the property of the estate. The general guardian of the infant asserts that the shares of stock in the account belong to his ward by reason of a gift or a trust for his benefit made by the testator. The disputed property consists of 1,000 shares of Bloomingdale Bros, stock, 2,000 shares of General Motors Company common stock, and 525 shares of Kroger Grocery and Bakery Company common stock. A balance exists as a lien in favor of the brokers in the sum of approximately $60,000. The equity in the account is substantial. The account was opened by the decedent on June 11, 1926. He died on March 23, 1929. The infant was about twelve years old at the time of the opening of the account. He is the only child. At the inception of the transaction the decedent wrote to his brokers a letter guaranteeing the account of “ Mr. James D. Peck ” and agreeing “ to be responsible for any losses that may arise through any transaction made for the account.” No payment of money or deposit of securities was made upon the opening of the account. The transactions were numerous, frequent and speculative. The securities traded in were common stock of over thirty corporations. Oral evidence of the circumstances surrounding the maintenance of the account and of the declarations of the testator has been submitted in addition to the stipulation, of the conceded facts and a transcript of the account.
Upon the completed record I hold that these securities constituted assets of the estate, that title to them was never vested in the son, James D. Peck, by a valid gift, nor was any enforeible
In Beaver v. Beaver (117 N. Y. 421, 428) it is stated: “The elements necessary to constitute a valid gift are well understood, and are not the subject of dispute. There must be on the part of the donor an intent to give, and a delivery of the thing given, to or for the donee, in pursuance of such intent, and on the part of (the donee, acceptance. * * *. But delivery by the donor, either actual or constructive, operating to divest the donor of possession of and dominion over the thing, is a constant and essential factor in every transaction which takes effect as a completed gift. Anything short of this strips it of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title. The inténtion to give is often established by most satisfactory evidence, although the gift fails.” Other authorities defining the requisites of a valid gift support the conclusion reached here. (Matter of Van Alstyne, 207 N. Y. 298; Matter of Crawford, 113 id. 560; Young v. Young, 80 id. 422; Matter of Brady, 133 Misc. 795; Ambrosius v. Ambrosius, [C. C. A.] 239 Fed. 473.)
Similarly the evidence fails to establish any enforcible trust in favor of the son as beneficiary. No unequivocal declaration of trust by the testator nor any of the essentials of a valid trust has been proven. (Farmers’ Loan & Trust Co. v. Winthrop, 238 N. Y. 477; Brown v. Spohr, 180 id. 201; Shea v. Crofut, 203 App. Div. 210; Orton v. Tannenbaum, 194 id. 214.)