128 Misc. 718 | N.Y. Sur. Ct. | 1927
The decedent was an elderly woman and for about eleven years prior to her death had made her home with her daugher, Selina Coron, mating frequent short visits to her other
On September 17, 1925, it appears that the decedent sent for the layman who had previously prepared her will and instructed him as to what she desired done with her property. This layman testified that he drew the papers in question, pursuant to her instructions; that he read them to the decedent and she declared that they were just as she wanted them. The testimony by this witness as to the reason given by decedent for executing these instruments was as follows: “ Q. State what conversation you had with her. A. She wanted that this property should be turned over to her daughters because of the fact that after her husband’s death she had remained or lived with those two daughters and she wanted this property to be turned over to them. Q. Did she say any more than that? A. That they had taken care of her and she had made her home with them. * * * Q. Did she say anything as to why she wanted them to have it? A. No more that I recall, only as I have stated that she wanted it turned over to them for that reason — she had made her home with them — they had cared for her.”
The instruments so executed by the decedent at this time were as follows:
(1) An assignment of a bond and mortgage from the decedent to her daughter, Selina Coron, on the usual assignment of mortgage form. The consideration is expressed as “ a good and valuable consideration.” The closing paragraph of said assignment is as follows: “A condition of this instrument is that party of the first part retains full use and control of said mortgage during her lifetime.”
(2) A bill of sale on the usual bill of sale form from the decedent to her two daughters above mentioned, by which she gave her furniture and household effects in the home of each daughter to each daughter respectively. The consideration expressed is “ One Dollar and other good and valuable considerations.” The last paragraph of this bill of sale reads as follows: “A condition of the foregoing instrument is that party of the first part retains the use and control of any and all personal property during her natural lifetime.”
“ Dear Sir.— Will you please change my account in your bank book 68 from Martha Peno to Martha Peno or Selina Corro [Coron] and Tina Ashline. Said account to be fully controlled by me during my natural lifetime. At my death same to be equally owned by my two daughters above mentioned.”
The assignment of the bond and mortgage was recorded, presumably by Mrs. Coron, in the Clinton county clerk’s office on November 7, 1925. The bill of sale was never filed or recorded.
The witness testified that upon the execution of the above instruments, the assignment of mortgage and bill of sale were delivered by the decedent to Mrs. Coron, that the decedent “ received the money therefor,” meaning, I assume, the one dollar expressed as consideration. The bank book and the above order to the bank were delivered by the decedent to the witness, with instructions to have her bank book changed as mentioned in said order. The witness gave the bank book and the order to his son, who is a bookkeeper in said bank, with instructions to make the change directed. There is no evidence as to who had possession of the bank book from that date to the time of decedent’s death. The entry made on the bank book beneath the name of the decedent is as follows: “ In case of death payable to Selina Caron [Coron] and Tina Ashline. See authority filed 9/18/25.”
The only other witness in the proceeding was Fred Coron, the husband of Selina Coron. He testified that the decedent lived at his home practically all of the time for eleven years prior to her death, and after the death of her husband; that occasionally she visited her other daughter, Mrs. Ashline, but that she spent most of her time at his home. In reply to questions relative to his conversations with the decedent on the matter of her paying for her board, the witnesss testified as follows: “A. Well, she used to tell me that often, that she saved enough money to pay the girls for her keeping. Q. Before the paper was made out, did she ask you to send for Mr. Powers? A. Yes sir. Q. What, if anything, did she tell you she was going to have Mr. Powers do? A. She said she wanted to get Mr. Powers to fix her business and pay the girls — that is all she told me that time.”
On the adjourned hearing Mr. Coron testified in regard to his conversation with Mrs. Peno when she first came to live at his home, as follows: “ Q. What was said, and between whom? A. She told Mrs. Coron she was going to stay there as long as she wanted to
The question at issue, therefore, is the ownership of the bank account, the personal property mentioned in the bill of sale and the bond and mortgage mentioned in the assignment, all of which were owned by the decedent during her lifetime.
Sections 205 and 206 of the Surrogate’s Court Act authorize this court in a discovery proceeding to determine the title to “ money or other personal property * * * which belonged to the decedent.” The power of this court in such a proceeding to pass upon the ownership of the bank account in question would seem to be apparent. (Matter of Fonda, 206 App. Div. 61; Matter of Degenhardt, 123 Misc. 762; Matter of Santourian, 125 id. 668; Matter of Lewis, 123 id. 115; Matter of Adler, 107 id. 574; affd., 191 App. Div. 40.) But to determine the title to the property mentioned in the bill of sale and the bond and mortgage mentioned in the assignment thereof, will necessitate passing upon the legal effect of these two instruments under seal.- While counsel have apparently assumed this court had jurisdiction in such matter, as no objection to the same has been made, jurisdiction in this court cannot be acquired by acquiescence. (Matter of Mathewson, 210 App. Div. 572, 573; Matter of Mondshain, 186 id. 528, 529; Matter of Kingsley, 111 Misc. 528, 530.) Except for such bill of sale and the assignment of the bond and mortgage, no question would arise as to the power of this court in this proceeding to pass upon the ownership of the personal property described in the bill of sale or the bond and mortgage described in the assignment. The question is thus squarely presented of whether in a discovery proceeding, when the evidence as to the ownership of the property in question is in the form of instruments under seal, this court can conduct- the trial and make a decree therein, or whether it must dismiss the proceeding on the ground that it may become necessary to set aside such instruments and such power does not obtain in this court.
If such power obtains it must be found in section 40 of the Surrogate’s Court Act, formerly section 2510 of the Code of Civil
By chapter 439 of the Laws of 1921, section 40 of the Surrogate’s Court Act was amended by inserting as part of the 3d paragraph thereof the following: “ In addition to and without limitation or restriction on the foregoing powers, each surrogate or surrogate’s court shall have power, * * The language of this amendment would make it seem evident that the equitable jurisdiction of this court was no longer limited to the matters mentioned in subdivisions 1-8 of said section, but that such equitable jurisdiction obtained in the language of the statute, to “ any proceeding ” on the return of “ any process ” of said court. And it has been held that this amendment did overcome the effect of such decisions as Matter of Mondshain (supra) and Matter of Holzworth (166 App. Div. 150; affd., 215 N. Y. 700) and that it did remove the limitation on the equitable powers of this court as construed by the decisions prior to said amendment. (Matter of Van Buren v. Estate of Decker, supra, 140; Matter of Haigh, 125 Misc. 365, 367.) As to the extent of the equitable jurisdiction now possessed by this court, see, also, Matter of Seaman (205 App. Div. 681,686); Matter of Cook (244 N. Y. 63, 71, 72). Whether this additional grant of equitable jurisdiction by the 1921 amendment to section 40 is constitutional would seem to be a matter for the appellate courts only to pass upon. (Matter of Brewster, 92 Misc. 339, 341; Matter of Thornburgh, 72 id. 619.)
Although prior to 1921 this court lacked jurisdiction in such matters above mentioned on a discovery proceeding, it did have jurisdiction to pass on such matters on an accounting proceeding, for the reason that such a proceeding was held to be one of the
As the equitable jurisdiction of this court is no longer limited to the matters mentioned in subdivisions 1-8 of section 40, the reason previously assigned for not allowing such equitable jurisdiction to be exercised in a discovery proceeding should no longer be applicable. I believe this court now has at least the same equitable jurisdiction in a discovery proceeding that it formerly had in an accounting proceeding to pass upon the matters here in question, provided only that the property is such as is described in sections 205 and 206 of the Surrogate’s Court Act. Also, that such jurisdiction exists, regardless of the theory advanced for asserting title to the property in question, whether by gift, purchase, etc., and regardless of the evidence offered in support of such title, whether by oral testimony, documentary evidence, or both. To hold otherwise is to make the jurisdiction of this court in a discovery proceeding dependent upon the nature of the evidence offered in support of the title to the property in question. Until the appellate courts define the limitations to be placed upon the equitable jurisdiction of this court as conferred by section 40 of the Surrogate’s Court Act, I believe this court should accept and exercise such jurisdiction without reluctance and that it should not, as was stated in Matter of Coombs (supra), “ fashion reasons for thwarting the manifest policy” of the statute.
It would seem proper in a discovery proceeding to refer to section 40 of the Surrogate’s Court Act in order to determine the extent of
In Matter of Hyams (237 N. Y. 211) appears the statement that section 40 does not enlarge the powers of the Surrogate’s Court with respect to discovery proceedings. However, a careful reading of the decision in that case will indicate that such statement should not be taken as a blanket prohibition against referring to section 40 for the purpose of determining the question of equitable jurisdiction of this court in a discovery proceeding. That was a discovery proceeding. The property in question consisted of certain' bonds formerly owned by the decedent, and other securities which had been purchased with the proceeds of securities formerly owned by the decedent. The property was claimed by the respondent as a gift from the decedent during his lifetime. The court held that the Surrogate’s Court had no power to pass upon the title to the securities which had been purchased from the proceeds arising from the sale of other securities owned by the decedent during his lifetime, for the reason that sections 205 and 206 of the Surrogate’s Court Act limited the inquiry to personal property owned by the decedent during his lifetime. The petitioner asserted the authority of the Surrogate’s Court to act in the matter, pursuant to section 40 of the Surrogate’s Court Act. In reply to this assertion, the court (at p. 217 of the opinion) states as follows: “ Section 40 does not enlarge the powers of the Surrogate’s Court in so far as the same relate to a discovery under sections 205 and 206. These sections point out specifically what must be done to obtain the discovery. An inquiry may be had concerning specific personal property. The inquiry is
While the first sentence of the above-quoted paragraph would seem to indicate that it was improper in any case to refer to section 40 in order to determine the extent of this court’s jurisdiction in a discovery proceeding, I believe it must be apparent from the remainder of the above-quoted paragraph that the first sentence thereof had reference only to the impropriety of referring to section 40 for the purpose of attempting to find authority for the Surrogate’s Court to pass upon property of a different kind than is specifically mentioned in sections 205 and 206; that said first sentence was not intended as holding that reference to section 40 could not be made in a discovery proceeding for the purpose of determining the equitable jurisdiction of the Surrogate’s Court in such a proceeding, when the property in question was of the kind specifically mentioned in sections 205 and 206, as is the property in the case at bar. While not material in this proceeding, it is of interest to note that since the decision in the above case, sections 205 and 206 were amended by chapter 100 of the Laws of 1924. Such amendment now authorizes this court in a discovery proceeding, if it shall have found that personal property of the decedent has been diverted or disposed of, to direct payment of the proceeds or value of such property, or impress a trust upon such proceeds. Such a decree was made in Matter of Malone (128 Misc. 288).
I am, therefore, convinced that this court has jurisdiction to pass upon the matters here in question.
Did decedent effectually transfer to the respondents her bank account, furniture, bond and mortgage by the execution of the documents here in question, and if so, upon what legal principle is the transfer valid?
Counsel for the respondents does not urge in his brief submitted the validity of the transfer as a gift inter vivos or causa mortis, but contends that respondents’ claim of title to this property should be upheld on the ground that the dealings of the parties established a contract between them with reference to the payment to the respondents by the decedent for her care, and that the property in question was given by the decedent to the respondents and accepted by them as payment for such care and maintenance. If this theory fails, it is urged that the transaction should be upheld as a valid trust for the benefit of respondents. In this connection it is
Nor can this' attempted transfer of property be upheld as a valid declaration of trust. In Brown v. Spohr (180 N. Y. 201, 209) the essential elements of a valid trust of personal property are stated as follows: (1) A designated beneficiary; (2) a designated trustee, who must not be the beneficiary; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and (4) the actual delivery of the fund or other property, or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to him as trustee. In Beaver v. Beaver (117 N. Y. 421, 428) the court held that to constitute a trust there must be either an explicit declaration of trust or circumstances which show beyond reasonable doubt that a trust was intended to be created. Also, in Wadd v. Hazelton (137 N. Y. 215, 220) the court held that an intended absolute gift by way of a written assignment which cannot take effect because of the absence of delivery, ought not to be enforced as a declaration of trust when there is no such declaration and when there is no evidence from which an intention to create a trust can be implied. To th;
In the case at bar it is clear that an explicit declaration of trust does not exist. I believe it should be equally apparent that the circumstances are such that an intention to create a trust cannot be implied. In regard to the bank account, only the decedent had a right to use any of it during her Ufe and she could use all of it if she so desired, or withdraw it and redeposit it in another bank to the credit of any one. In the case at bar the presumption against an intent to create a trust with respect to the bank account is much stronger than obtained in Beaver v. Beaver (supra) where the court held that no intent to create a trust could be impMed. The reservation in the bill of sale and the assignment of the bond and mortgage herein is substantially the same as in the letter of instruction to the bank with regard to changing the form of decedent’s bank account. It must, therefore, be assumed that the intention of the decedent was the same in all three cases, namely, that she did not intend to part with title to any of this property during her lifetime, and that meantime she was privileged to use all of it if she so desired. Such reservation negatives the idea that the decedent intended to turn over this property to herself as trustee for the benefit of the respondents.
Can title in the respondents to the property in question be sustained on the theory that the same was given to them by the decedent during her lifetime? The elements necessary to constitute a valid gift have been stated by the court many times. There must be an intent to make an immediate gift, a dehvery of the thing given and an acceptance of the gift. (Matter of Van Alstyne, supra, 306; Matter of Fonda, 206 App. Div. 61, 62.) Furthermore, an absolute gift requires a renunciation by the donor and an acquisition by the donee of the interest in and title to the subject of the gift. (Matter of Van Alstyne, supra, 308; Matter of Humphrey, 191 App. Div. 291, 293, and cases cited; Peoples Trust Co. v. Dickson, 126 Misc. 580, 582.)
In the case at bar two of the necessary elements to constitute a valid gift are lacking, namely, an intent to give and a delivery of the thing to be given. The terms of the instruments indicate that decedent had no intent to part with her title to the property in question during her life, for she reserves full use and control of the same during her life and not merely the income thereon, as was done in many cases of record where the transaction was upheld as a valid gift. The bank account was not in such form as to create any presumption of an intention to give the same to respondents. (Banking Law, §§ 148, 198, 249; Matter of Fonda, supra, 63.) No
The family relationship of the parties is such that it must be assumed that respondents had access to the decedent’s papers. Because of this, as heretofore stated, the possession of these documents by the respondents proves nothing in derogation of the ownership thereof by the decedent. (Matter of Canfield, supra; Gaines v. Huyler, supra.) Especially in regard to the bank account of the decedent, the case of Matter of Fonda (supra) would seem to be directly in point as authority that no gift of the same was intended or was consummated by the transaction in question. While the bill of sale might under some circumstances be upheld as a symbolical delivery of the articles therein mentioned, I do not believe it can be so upheld in this instance. It was executed as part of the same transaction with the other documents here in question. It contains the same reservation of full control and use by the decedent during her lifetime of the property therein mentioned as was used in the other instruments. Hence, even if we regard it as a sufficient delivery of the property therein mentioned, the terms of the same, in connection with the same terms in the other instruments, negative the idea of an intent to make an immediate gift, which is as necessary to constitute a valid gift as is delivery of the thing to be given. A gift inter vivos cannot be made to take effect in possession in futuro, as such a transaction amounts only to a promise to make a gift. (Young v. Young, 80 N. Y. 422, 435,436; Butler v. Sherwood supra, 606.) In the latter case a power of revocation was reserved in the document there in question and
I, therefore, determine that the title to the bank book and the deposits evidenced thereby, the bond and mortgage and the property mentioned in the bill of sale are in decedent’s estate; that said bank book, bond and mortgage and the property mentioned in the bill of sale should be delivered to the petitioner herein as the representative of decedent’s estate. In the event that the amount due on said bond and mortgage has been paid to Selina Coron, the assignee in the assignment of said bond and mortgage, then said respondent is directed to pay over the proceeds therefrom to the petitioner herein, or a sum equal to the value of such bond and mortgage. A similar direction shall apply in .the event that the respondents have disposed of the personal property mentioned in the bill of sale;
The First National Bank of Chateaugay, N. Y., was not made a party to this proceeding. No decree can, therefore, be made in this proceeding containing directions to this bank with reference to the deposits represented by this bank book. (Surrogate’s Court Act, § 40.) Even though this bank had been made a party to this proceeding, it would seem that the power of this court is limited to determining the ownership of the bank account, and cannot direct the bank with reference to the payment of the deposits represented thereby. (Matter of White, 119 App. Div. 140.) However, service
Costs will be allowed to the petitioner, payable out of the estate. Prepare decree accordingly.