Witzel v. Chapin, 3 Bradf. 386

Witzel v. Chapin

3 Bradf. 386 | N.Y. Sur. Ct. | 1855

The Surrogate.

William Witzel on the 25th day of June, 1849, deposited in the Greenwich Savings bank, the sum of five hundred dollars, and on the 3d of March, 1853,. withdrew four hundred and ninety-five dollars—on the 27th of *389the succeeding June, he deposited three hundred dollars. The interest was regularly made up on the first days of January and July, in each year, entered in the book and subsequently withdrawn by the depositor. The deposits were made on account of “ William Witzel, in trust for Ann Witzel,” as expressed in these words on the face of the bank book. He having died, and his property now being in course of distribution, Ann Witzel claims the amount due from the savings-bank as belonging to her, and relies upon the savings-bank book as evidence of her title. It is agreed that the moneys deposited were the property of the depositor up to the time they were lodged in the bank, and that the claimant was ignorant during the intestate’s lifetime that such deposit had been made. It makes no difference that the claimant is one of the next of kin of the intestate, and takes one third of the surplus of his personal estate. The single question is whether the facts stated show a valid gift or trust, which the claimant can now enforce against the representative of the donor or trustee.

The want of knowledge of the existence of the trust on the part of the cestui que trust, is no ground of objection against its validity. Nor is the mode of its creation material, provided we can see the elements essential to a legal or equitable right. There would seem to be no reason, in the nature of things, why a trust cannot be created by a mere declaration, the transfer, change or mutation of possession being effected by the change of the character in which the property is held. There can be no doubt in this case that there was a delivery of possession—the funds were deposited in the bank, and ceased to be the intestate’s property—his individual possession terminated, and although it is true that he still retained the evidence of the trust, and the control over the deposit, it was in the new character of trustee. Nor had the transaction been conducted with entire privacy, for although the book was retained in his own custody, the deposit in trust was recorded on the books of the institution. It was not an act resting merely in intention, but was consummated *390by a disposition and a recognition in writing of the trust. In Neilson vs. Blight, 1 Johns. Cas., 209, the Supreme Court of this State, held it as a maxim that when a trust is created in any manner, even without the knowledge of the cestui gue trust, he may affirm it and enforce the trust. The same doctrine was held in Weston vs. Barker, 12 Johns. R., 276, and received the sanction of Chancellor Kent, in Cumberland vs. Codrington, 3 Johns. C. R., 261, and in Shepherd vs. McEvers, 4 John. C. R., 138. Nor is it necessary there should be any consideration to support the trust if it be explicitly declared. A declaration of trust is considered in a court of equity as equivalent to a transfer of the legal interest in a court of law, and if the transaction by which the trust is created is complete, it will not be disturbed for want of consideration. (Collinson vs. Pattrick, 2 Keen, 134.) There has been some discussion as to this class of voluntary trusts without pecuniary consideration, how far they are capable of revocation, before they come to the knowledge of the beneficiaries, (Story’s Eq. Juris., § 1045,) but where they have not been revoked by the act of the donor or trustee, but have been allowed to remain till after his death, and the fund is then found in such a condition as not to need the aid of equity to recover possession, there would seem to be no good reason why the trust should not stand. In Thorpe vs. Owen, 5 Beavan R., 224, an executor invested the estate of his testator together with a thousand pounds of his own funds, and afterwards treated and admitted the aggregate investment, as held in trust for the legatees, who were his own children, and on his decease the fund was found so mixed. It was held that a trust had been declared of the thousand pounds in favor of the executor’s children, and his executors were decreed to pay accordingly. In Gaskell vs. Gaskell, 2 Yo. & Jer., 502, where the decedent in his lifetime had directed his bankers to transfer certain funds standing in his name, to the account of himself and other persons as trustees for his wife and son, there was evidence that this had been done to avoid the legacy duty, and the court considered the appropriations as “ not *391binding,” having been made “ with a fraudulent intent.” The element of fraud in this case, for the purpose of escaping the legacy duty, affects the authority as to the general principle free from that element. In Wheatley vs. Purr, 1 Keen, R., 551, a sum of £2,000 was directed by H. O. to be carried by her bankers to an account in the joint names of herself as trustee for her children, and the children. A note was taken in her name as trustee, and the transfer was made to her name alone in trust for the children; her executors having, after her death, received the amount from the bankers, the court held that the transaction amounted to a complete declaration of trust, and that the executors as to the funds so received were trustees for the children. In Stapleton vs. Stapleton, 14 Simon's R., 186, a partner in a bank opened an account in the name of his wife for the education of his children, naming them, and a receipt was drawn accordingly. The decision was that under the circumstances a complete and irrevocable declaration of trust had been made in favor of the children.

The class of deposits in savings institutions, of which the one in question in the present case is an example, is of frequent occurrence. This is a favorite mode of making trusts, and yet they are not ordinarily considered as irrevocable. The withdrawal by the intestate of a large portion of the deposit he made in trust for his sister, and of the interest as it accrued semi-annually, indicates that he did not treat the trust as connected with the deposit, to be irrevocable. Justice Story lays down the rule that “ where a trust is created for the benefit of a third person, although without his knowledge, he may afterwards affirm it and enforce the execution of it in his own favor, at least if it has not in the intermediate time, been revoked by the person who created the trust.” (Eq. Jurisp., § 972, 1045.) The doctrine, even in relation to assignments for the benefit of creditors, is, according to the English rule, that the assignment is revocable by the debtor unless the creditors have assented and given notice to the assignee, but by the American rule the assent of creditors is *392assumed, unless the contrary is shown. (Story’s Eq. Jurisp., 1036, a. b.) I do not think that the mere existence of the power to revoke or recall the deposit, is sufficient to invalidate the trust, if that power has not been exercised. The continuance of any portion of the deposit in trust is evidence of a continuance pro imito, of the original intention, and the intestate having died, leaving the trust unrevoked as to a certain sum, the rights of the cestui que trust then became fixed. It is not necessary to declare generally that deposits of this character are always conclusive evidence of a trust; there may be circumstances connected with particular cases, rebutting the presumption flowing from the deposit, and showing that a trust was not intended. Want of knowledge on the part of the cestui que trust, and the fact that there was no pecuniary consideration, are not enough to destroy the presumption raised by the deposit in trust. There must be something more—some facts inconsistent with the idea that a gift was intended. How far the rights of creditors may be legally affected by voluntary trusts, is a question which may be raised at all times in respect even to formal declarations and conveyances in trust, and executed gifts, and of course in respect to deposits of this character. There are no creditors intervening in the settlement of this estate, and the validity of the deposit cannot be contested on that ground.. I am of the opinion, therefore, that the sum remaining on deposit to the credit of the intestate in trust for his sister, at the time of his decease, together with all the subsequent accumulations of interest, should be paid' over to her by the administrator.