13 Ohio App. 428 | Ohio Ct. App. | 1920
Christopher, Luplow and Meria Luplow, husband and wife, were, for some time prior to June 11, 1901, residents of the city of Youngstown, Ma-honing county, and were possessed jointly of certain real estate which they sold for $4250, a part of which they reinvested in other properties. They were both wage-earners and reared a family of children, the two youngest of whom are Richard and Maria.
On the 11th day of June, 1901, Meria Luplow, the wife, deposited in a savings account with The Dollar Savings & Trust Company, of the city of Youngstown, $700 in the name of “ Meria Luplow in trust for Richard and Maria,” and the account so appears at the present time. Meria Luplow died June 20, 1919, and the husband, Christopher Luplow, was soon thereafter appointed administrator of her estate.
On the 25th day of September, 1919, Christopher Luplow, as such administrator, began an action in the court of common pleas of Mahoning county to reform said savings account, alleging that he is the owner, and entitled to the one-half thereof, and asking that Maria Luplow, now intermarried with one Jones, be restrained from withdrawing any part of said money, and that the trust company be restrained from paying any portion thereof to her.
To his petition as administrator, Christopher Luplow filed an answer and cross-petition, admitting the allegations of the petition to be true, and asking a reformation of the account, and that he be found to be entitled to the one-half thereof, and that the remaining half be awarded the estate of Meria Luplow, deceased.
The vital issue is therefore whether a gift of the $700 was made or a trust created in it in favor of Richard and Maria Luplow. It is urged that neither could have resulted, because it is said that in no event was more than one-half of the $700 originally deposited the property of Maria Luplow, and that one-half at least belonged to Christopher Luplow.
Did that which was said and done create a trust in favor of Richard and Maria, or was it a completed gift ? As to whether or not a trust was created will first be considered, because a trust usually involves a gift.
The several elements which must concur in the creation of a trust are a person competent to create it, sufficient words to establish it, a person capable of holding as trustee, a specified or ascertainable object, a definite subject, and a declaration of the terms of the trust. To constitute an express trust there must be either explicit language to that effect or circumstances which show with reasonable certainty that a trust was intended to be created. No particular .form of words, however, is required to create a trust,
To summarize, it may be said that to create a trust it is enough, the property being personal, if the settlor unequivocally declares, either orally or in writing, that he holds it in praesenti, in trust or as trustee for another. Ray v. Simmons, Admr., 11 R. I., 266.
The record discloses here that Meria Luplow, on or about the 11th day of June, 1901, said to her daughter, Mrs. Engleheart, that she was going down town, or down to the bank, to deposit the money in question for the benefit of Richard and Maria, or words to that effect, and requested her daughter to accompany her, which she did, the deposit being made as indicated, “Meria Luplow in trust for Richard and Maria,” which was a clear, unequivocal declaration of her purpose, in praesenti,
It is urged, and the record discloses some testimony to the effect, that the deposit was made in the form it was for the purpose of avoiding the payment of taxes. If this were the motive, .then it is somewhat singular that the remainder of the fund was not deposited. The whole balance from the sale of the Mead street property, after reinvestment in the two other properties, was $1850, and it is not disclosed that at least a part or all of the balance of this.amount was not still in hand. However this would not avail, even if true, because an unlawful act could not be the basis of a defense against a lawful one, and the parties would be left just where they placed themselves. It is held in the above case of Bank v. Albee et al. that such defense is not available. The fifth paragraph of the syllabus reads:
Again, it is insisted that Mrs. Luplow retained the bank book and that this was inconsistent with the trust. Scarcely so; for indeed it was not improper for her to retain the book as trustee, for such she had voluntarily constituted herself, and therefore she might properly retain it, and so it is held in Ray v. Simmons, Admr., supra. The strong weight of authority is to the effect that the creation of a trust, if otherwise unequivocal, is not affected by the settlor’s retention of the instrument of trust, especially where he is himself the trustee. Exton v. Scott, 6 Sim., 31; Fletcher v. Fletcher, 4 Hare, 67; Carson and Vickery, Admrs., v. Phelps, Trustee, 40 Md., 73, 14 Am. Law Reg., N. S., 100; Souverbye et ux. v. Arden et al., 1 Johns. Ch., 240, and Bunn v. Winthrop, 1 Johns. Ch., 329.
It is further urged that Mrs. Luplow, during the eighteen years, withdrew by check certain sums of money, not large in amount or number, from this account, and that such withdrawals were inconsistent with the theory of a trust, and such must be conceded to be the case; but did she thereby annul the trust ? Scarcely so, because a trust cannot be annulled by the person creating it, in the absence of a power of revocation reserved by him for that purpose. (Bank v. Albee et al., supra; Sargent v. Baldwin, 60 Vt., 17, 13 Atl. Rep., 856; Martin v. Funk, Admr., 75 N. Y., 134; Decker v. Union Dime Savings Institution, 15 N. Y. App., 553; Curtis v. Price, 12 Ves., 103; Ellison v. Ellison, 6 Ves., 656; Salisbury v. Bigelow, 37 Mass. (20 Pick.), 174,
It is true that two cases, Brabrook v. Boston Five Cents Savings Bank, 104 Mass., 228, 6 Am. Rep., 222, and Clark v. Clark, 108 Mass., 522, seem to hold a different doctrine. However in the first case the circumstances were deemed controlling and adverse to an intent to create a trust, while in the second, which was similar as to facts, the court very briefly expressed the opinion that the trust was not complete, but without assigning any reason. These cases, although entitled to much respect, are exceptional to the strong weight of authority in the United States. The English cases in this regard, quite a few of which have been examined, generally sustain the view of the large majority of the American cases.
Probably no case can be found more nearly upon the point than Martin v. Funk, Admr., supra, in which it is held as follows:
“Where, * * * a trust is declared, whether in a third person or the donor, it is not essential that the property should be possessed by the cestui que trust, or that the latter should be informed of the trust.
*436 “S. deposited in a savings bank a sum of money belonging to her, declaring at the- time that she wanted the account to be in trust for plaintiff. The account was so entered, and a pass-book given to S. containing an entry, in substance, that the account was with her in trust for plaintiff. A deposit was made in the same manner in trust for K. Plaintiff and K. were sisters, and distant relations of S. S. retained possession of the pass-books, and the money remained in the bank, with its accumulated interest, except that she drew out one year’s interest, until her death. Plaintiff and K. were ignorant of the deposits until after that event. In an action to obtain possession of the pass-books, and to recover the deposits, held, that the transaction was a valid and sufficient declaration of trust, and passed the title to the deposits, S. constituting herself a trustee; that the retention of the pass-books, which were simply the vouchers for the property, must be deemed to have been as trustee, and was not inconsistent with the completeness of the gift, nor was notice to the cestui que trust necessary.”
It is obvious that the foregoing is quite similar to the present case as to facts, and it fairly expresses the principle declared in practically all of the well-considered cases.
It is therefore clear that Mrs. Luplow as the owner and donor of personal property could create a perfect or completed trust by her unequivocal declaration, in writing or by parol, that she herself held such property in trust for the purposes named and the. trust is equally valid whether she constituted herself or another person the trustee; she need not in express terms declare herself trustee, but she
The subject of gift which was presented in argument need not be further or separately considered, as it has been sufficiently discussed in the foregoing as a part of the trust.
It follows therefore that the judgment must be reversed, and it is so ordered.
Judgment reversed.