80 N.Y.S. 961 | N.Y. Sup. Ct. | 1903
The interlocutory judgment herein (34 Misc. Rep. 333, 66 App. Div. 136)" establishes that Judge Putnam was trustee for his wife and her children under the will of Robert M. Shoemaker, his wife’s father, and the only question here is to determine whether certain property belonged to Mrs. Putnam, and goes by her will to one of her sons, or belonged to the trust estate and goes under her father’s will to her three sons. The referee has found the property belongs to .the trust estate. Ho persons are interested in the question except the three sons. The report of the referee is so full and convincing as to his reasons that it
It is undoubtedly the law that the fact that securities stand in the name of a party is evidence that he is the owner, but when we remember that Judge Putnam and Mrs. Putnam put the known trust securities in her name and seem to have selected that name as the name in which to put the trust securities, the fact that the securities stand in her name is of but very little importance in a question between her and the trust estate as to their ownership. They were as much in his possession as in hers, and the new securities were as much in his control as the old securities were which undoubtedly belonged to' the trust. Her evidence of title to the one is as good as to the other, so far as the place in which they were found and the name in which they stand are concerned. The giving of her note to the trust for the deficiency in the trust fund is in the line with their joint control and use of the trust. And that fact, and the way in which this husband and wife managed this trust property, lead to the conclusion that she is fairly chargeable with the knowledge of the contents of the statement Exhibit No. 27, and that that exhibit states the facts as they both understood them.
But it is most seriously contended that the Delaware and Hudson Canal Company stock of the stated value of $35,960, and now of greater value, found in the safe deposit box standing in the name of Mrs. Putnam, was purchased with money actually belonging to her. It seems that when Putnam place burned the $25,000 insurance money concededly hers was deposited in this bank account and used by him in purchasing in her name New York Central stock, and that it is probable that the proceeds of that stock deposited in this bank account produced the particular fund which bought this Delaware and Hudson Canal Company stock. It also appears that after the purchase and before the sale of this New York Central stock Putnam place was rebuilt at an expense of upwards of $25,000, and the expenses thereof were
It is contended that the statement of Judge Putnam, Exhibit No. 27, is inadmissible under section 829 of the Code of Civil Procedure, as Judge Putnam, if living, would be an incompetent witness against her estate. But this statement was made when both were living, and if admissible in evidence its competency should properly be determined as of that time. Moreover the
Nor does any party here derive any interest from Judge Putnam; the interest comes from the Shoemaker will. Neither is the evidence of the Shoemaker executors as to what funds they turned over to Judge Putnam inadmissible under section 829. They are not interested in the event of this action. Eisenlord v. Clum, 126 N. Y. 552.
The referee has properly charged the trustee with the losses on some bank stock and some railroad income bonds. While those securities came to him with the trust, he was a high judicial officer, familiar with the law, and his retaining them until they became worthless is unexplained aside from the fact that it is probable that his peculiar construction of the will that these were more private than trust funds may have been the reason for such retention. This was certainly an erroneous and unjustifiable view of the situation, for the courts of Ohio had determined, in an action to which he was a party and before he received the property, that he was to receive it as trustee.
It is contended that the proceedings in the Court of Ordinary in Georgia by which the Atlantic Factory stock and the Sibley Manufacturing Company stock were divided in kind as undevised real estate, is an adjudication that such property was real estate and was not a part of the trust fund, and is binding upon this court, and that the referee has erred in treating those stocks as trust property. The proceedings' in Georgia were apparently by consent and the cesíuis que irustent were not parties. The proceedings do not allege that the principal property or investments of the companies were in real estate which was necessary to make the stock real estate under the Georgia law, and from the Georgia statute in evidence it appears that such stocks “ may be transferred from one person to another for any purpose whatsoever by the same means as are or may be allowed by law for the transfer of personal property.” It is therefore evident the title to this stock passed by the Shoemaker will, although it did not have three witnesses as required by the law of Georgia for the transfer of real estate. We therefore view this proceeding in Georgia as a proceeding taken by consent as a convenient means of getting possession, by the trastee and the other lega
A careful consideration of the other questions raised does not affect the validity of the findings of the referee, and the referee’s report, except so far as has been changed in some matters of detail by the court, is approved, and an order • should be entered confirming said report and for final judgment thereon. An additional allowance of $2,000 -is granted to the plaintiff, an additional allowance of' $1,750 is allowed to the defendant John R. Putnam. Such allowances and taxable costs to be charged against the defendant Israel Putnam, Corliss Sheldon, as administrator of John R. Putnam, and C. H. Sturges, as executor of Mary S. Putnam. Costs and an additional allowance of $250 .allowed the defendant the Lincoln Safe Deposit Company, same to he payable from the trust fund before division.
Ordered accordingly.