In re Small's Will

50 N.Y.S. 341

Opinions

PUTNAM, J.

At the time of the conversation between William Bolton, deceased, and Samuel Bolton, Jr., in regard to a gift of $15,-000 to Mary Dugdale, the former was a member of the firm of S. Bolton’s Sons, his property consisting of an undivided interest therein. This conversation did not have the effect of constituting a gift to, or a trust in favor of, Mrs. Dugdale. It was not a gift, because there was no delivery, and it depended on the will of Samuel Bolton, Jr., to be exercised in-the future, whether the $15,000 should or should not be paid. For the same reason it did not create a trust in favor of Mrs. Dugdale. If a trust had been created, the title to the fund would at once, during the lifetime of William Bolton, have vested in the trustee in favor of the donee. The conversation above de tailed certainly could not have that effect. It had no effect except as the expression of a wish on his part that Samuel Bolton, Jr., should thereafter, if he thought best, give to Mrs. Dugdale $15,000. Had the deceased given to her a written order on his co-partners for that sum, the order would have been inoperative and void unless-accepted by S. Bolton’s Sons prior to his decease. Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 N. Y. 64, 36 N. E. 180. After the death of William Bolton, Samuel Bolton, Jr., as against the legatees and devisees named in the will of his brother, would not have been authorized to pay to Mrs. Dugdale the $15,000 out of his brother’s estate, although, of course, as'residuary legatee, he could have given her that sum out of his own property. There being no gift to, or trust in favor of, Mrs. Dugdale, created by William Bolton,—the conversation referred to only having the. effect of the expression of a wish by William that Samuel should, if he elected, give her in the future $15,000,—does the evidence in the case, which is "in substance above detailed, show such a gift by the latter after the death of his brother? It certainly shows an intent on the part of Samuel to carry out the suggestion of his brother. He intended to give his sister $15,000; but, unless a trust was created by him in her favor, clearly there was no consummated gift. He did give her $3,000 to purchase a house, and also the annual interest, first on the $15,000, and, after the payment of $3,000, on the $12,000 .remaining of the fund. But the $12,000, the balance of the fund, was never delivered. It was not separated from his other property. It remained under his control in the firm of S. Bolton’s Sons, composed of the respondent and Joseph Bolton. For was it separated from the assets of said firm. Do the facts proved in the case justify the conclusion that Samuel Bolton, Jr., intended to and did become a trustee for his sister as to the $12,000 in question? In 8 Am. & Eng. Enc. Law, 1323, it is said:

“It is also possible for the donor to constitute himself a trustee for the donee. In order to do this, it is only necessary for the owner, in clear and unequivocal language, or by acts amounting to the same thing, to declare that he henceforth holds the chose in action or the property as trustee for the donee. "When this is duly executed by the owner by an act intended to be binding- on himself, equity will uphold it, whether the property be legal or equitable, or whether it be capable of transfer or not.”

See, also, Martin v. Funk, 75 N. Y. 134; Mabie v. Bailey, 95 N. Y. 206-209; People v. State Bank of Ft. Edward, 36 Hun, 607.

But it is said:

“Though it is not necessary that the declaration of trust be in terms explicit, the donor must have evinced by acts which admit of no other interpretation that such legal right as he retains is held by him as trustee for the donee. * * T5e settlor must transfer the property to the trustee, or declare that he holds the property to himself in trust.” “To create a trust where the donor retains the property, the acts or words relied upon must be unequivocal, implying that he holds the property as trustee for the benefit of another.” Martin v. Funk, supra, page 141; Young v. Young, 80 N. Y. 422-438; Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940.

It will be seen that the facts in this case differ from those considered in the cases of Martin v. Funk, Mabie v. Bailey, and People v. State Bank of Ft. Edward, supra. In those cases the donor separated a fund from his other property, and deposited it in a bank in the name of the donee; and it wras held that such separation and deposit, together with other circumstances shown in those cases, operated as a present transfer of the fund from the donor as an individual to himself as the trustee for the donee, and that such deposit had the effect of a delivery of the subject of the gift. In this case the fund of $12,000 claimed to have been given to Mrs. Dugdale was not separated from the other property of the said respondent. His property was invested in the assets of S. Bolton’s Sons, and has remained, as a part of said assets, a portion of the undivided property of said co-partnership, to which the said respondent was entitled as-a member thereof. There was no change whatever made as to the said fund in consequence of any transaction between him and his sister. It is clear that the conversations above detailed between Samuel Bolton, Jr., and his sister did not create any trust in her favor. These conversations only had the effect of a declaration on his part that he gave her the $12,000. They do not establish a delivery or an actual consummated transfer of the fund. If there was any trust shown, it was by those conversations, in connection with the credit given Mrs. Dugdale on the books of S. Bolton’s Sons. But we are of opinion that under the doctrines above stated.such entry was not sufficient to establish the gift. Samuel Bolton, Jr., told his sister that he gave her $12,000, and thereafter made, or caused to be made, on the firm books of the co-partnership of which he was a member, a credit of $12,000. He did not separate that sum from his other property, nor from the firm assets. It was not shown that he charged himself or was charged with the $12,000 on the firm books. Suppose Mrs. Dugdale,-in her lifetime, had commenced an action against Samuel Bolton, Jr., or S. Bolton’s Sons to recover said sum. She would have been in no better condition, on account of the entry of the firm books, than if her brother had given her a note or a bond for the $12,000. He had agreed to give her $12,000, and had given her credit on the co-partnership books therefor; but there was no consideration for the promise or for such credit. The transaction between him and William Bolton, deceased, wherein the latter had suggested that he could make a gift to Mrs. Dugdale of $15,000 if he elected, was not a sufficient consideration. She could not have recovered in such an action. Holmes v. Roper, 141 N. Y. 64, 36 N. E. 180; In re James, 146 N. Y. 78, 40 N. E. 876. The appellant certainly stands in no better position than she did. If it had been ■ shown that Samuel Bolton, Jr., had actually withdrawn the $12,000 in question from the firm assets of S. Bolton’s Sons, had been charged on the firm books with that amount, and had thereupon deposited that sum with the firm to himself as trustee for his sister, a different conclusion might be arrived at. In such supposed case it might be said that the circumstances showed beyond a reasonable doubt that a trust was intended to be created in favor of Mrs. Dugdale. But under the circumstances shown in this case there was no express declaration of trust, and the circumstances are consistent with another- . construction than that of an intent to create a trust. The statement of the said respondent to his sister, and his entry on the firm books, evince an intent to give, but not a present intent to pass the title to the fund. If a trust had been created, the title to the $12,000 would have at once passed from said Samuel Bolton, Jr., or the firm to him as a trustee for the donee. If one deposits with a co-partnership a sum of money, and is credited with that sum on its books, he has a claim for the amount deposited, enforceable by an action against it. ' But such deposit and credit does not have the effect of transferring the title to an amount of the assets of the firm equal in value to the amount of the deposit. So the credit given to Mrs. Dugdale on the books of S. Bolton’s Sons would have given her a right of action against the firm had there been any valid consideration therefor. But the credit did not have the effect of transferring to her or her trustee $12,000, in value, of the assets of said firm. Had a receiver, after such credit, been appointed of the said co-partnership, he would have been authorized to take, hold, and convey all of the firm assets without reference to any claim of hers thereto. The credit in the books of $12,000 to Mrs. Dugdale did not transfer to her, or to the said respondent as trustee for her, any of the assets of the firm, or of Samuel Bolton, Jr., as a member thereof; nor was there any fact or circumstance shown evincing an intent on the part of the said respondent that the title to the fund should pass from him. The facts shown are consistent with an intent on his part to retain the title and control of the fund, and give the. same to his sister from time to time thereafter as he might elect.

We think the doctrine stated in Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, Wadd v. Hazelton, 137 N. Y. 215, 33 N. E. 143, Jackson v. Railway Co., 88 N. Y. 520, and Young v. Young, 80 N. Y. 422, applies to this case,—that the gift that Samuel Bolton, Jr., intended to make to his sister was not consummated, and hence that the order should be affirmed, with costs.

All concur, except LARDON and HEBRICK, JJ., dissenting.