Cohet, J.
This is a proceeding under article 79 of the Civil Practice Act instituted by the Chase National Bank of the City of New York, as surviving trustee and as administrator, to render its final account of proceedings under an inter vivos trust agreement dated August 2, 1946, executed by one Joseph N. Ford, deceased, and an amendment thereto dated September 25,1946.
An answer interposed on behalf of the five appellants attacks the validity of the trust agreement and amendment upon various grounds. It is alleged that the documents were not signed by Joseph N. Ford; that he was incompetent to create the trust; that the execution of the trust agreement and amendment thereto were brought about by fraud and undue influence; that both instruments are invalid and that Joseph N. Ford, therefore, died intestate.
Objections to the account were heard by a Referee, who, after protracted hearings, reported to the Special Term that the original agreement and the amendment thereto were the free and voluntary acts of the deceased; that he was of sound mind when he executed the instruments; that the signature affixed to the instruments was that of the deceased; that the agreements were valid in all respects; and that there was no duress, undue influence or fraud practiced by his wife to procure the -amendment to the original agreement.
The Special Term entered an order confirming the report of the Referee and judicially settling the accounts of the Chase Bank as surviving trustee and administrator of the estate of Joseph N. Ford, deceased. From that final order this appeal has been taken.
Joseph N. Ford, the settlor herein, was married to Marie Ford in June, 1927. Apparently they lived happily together until Ford’s death some twenty years later. The deceased left no will. There were no children. Ford had a brother and four sisters, all of whom are still living, and who are the appellants.
On July 11, 1946, the settlor suffered a stroke, which caused him to become bedridden. At that time he was seventy-two years of age. He was a man of keen intelligence and he had been very successful in business. From the day he was stricken until April 2, 1947, the date of his death, he was under the constant care of his wife. No one of his four sisters had seen him during his illness; his brother Harry Ford saw him only on one occasion on a visit to New York. The sisters all resided in other States of the Union.
[155]*155On August 2,1946, in the presence of a representative of the Chase Bank and before a notary public, Ford executed a revocable trust agreement of virtually all his property, consisting of negotiable stocks, bonds and cash, worth between $500,000 and $600,000. He named himself and the Chase Bank as cotrustees. The securities and stocks were thereupon turned over to the Chase Bank.
The agreement provided that Ford was to receive the income of the principal of the fund for life, and upon his death, one third of the principal was to be paid to his wife, and the remainder was to go to his brother and sisters in equal shares.
Less than two months later, and on September 25,1946, Ford executed an amendment to the trust agreement, again in the presence of a representative of the Chase Bank and a notary public. This amendment was directed only to the distribution of the principal upon the settlor’s death. It stipulated that Ford’s brother and sisters were each to receive only $2,000, if they survived him, and that the remainder of the principal of the trust fund was to go to Mrs. Ford.
Great stress has been placed upon the fact that the amendment of September 25th, gave practically the entire remainder of the trust fund to the wife in the event of her husband’s prior death, while the agreement as originally executed gave her only one third. It is argued that the wife used undue persuasion, improper influence and coercion upon her husband to effect this change. It is to be anticipated that a wife will, under ordinary circumstances, affect the judgment and thinking of her spouse. Indeed it would be strange if a faithful wife of twenty years did not exert some influence over her husband’s thought and action with respect to the disposition of his property. That such influence was in this case undue or improper is, however, entirely speculative and wholly groundless.
A review of the evidence satisfies us of the correctness of the findings of the court to the effect that the agreement and the amendment thereto were the free and independent acts of Joseph N. Ford; that the deceased was not mentally incompetent when he executed them; and that they were not induced by fraud, duress or undue influence.
Appellants also argue upon this appeal that the agreement of August 2, 1946, and its later amendment creating a trust during the lifetime of the deceased were invalid and illusory, and that the deceased was merely attempting a testamentary disposition of his property; that inasmuch as the instruments were not executed with all the formalities required of a will, [156]*156they were invalid for all purposes, and therefore, Ford died intestate as to the assets for which the Chase Bank is accounting. It is argued that under the provisions of the trust, Ford exercised complete control over the investments until his death; that since he had the power of revocation and was the sole life beneficiary there was no valid trust inter vivos created, but that there was an attempted testamentary disposition of his property. We think that this contention is untenable.
The trust fund, established primarily to effect efficient management of the estate during the decedent’s illness, would be invalid and illusory only if the settlor had such control over the corpus as to make the cotrustee bank a mere agent so as to permit the settlor to do as he pleased with the property of the trust. (1 Scott on Trusts, § 57.6, pp. 353-354.) The principle involved is clearly stated in the Bestatement of the Law of Trusts in subdivisions (1) and (2) of section 57, as follows:
“ (1) Where by the terms of the trust an interest passes to the beneficiary during the life of the settlor, the trust is not testamentary merely because the settlor reserves a beneficial life estate or because he reserves in addition a power to revoke the trust in whole or in part and a power to modify the trust.
“ (2) Where the settlor transfers property in trust and reserves not only a beneficial life estate and a power to revoke and modify the trust but also such power to control the trustee as to the details of the administration of the trust that the trustee is the agent of the settlor, the disposition so far as it is intended to take effect after his death is testamentary and is invalid unless the requirements of the statutes relating to the validity of wills are complied with.”
The proof shows that the decedent exercised no more and no less power than his cotrustee, each sharing equally the proper administration of the trust during the lifetime of the settlor. Ford exercised only the control of a cotrustee, as established by the numerous approvals and disapprovals of the recommendations made by the bank, and as shown by the consultations he requested and received with representatives of the Chase Bank concerning taxes and investments. To say that Ford was the sole trustee and sole beneficiary, and that he had complete control of the fund, is to fly in the face of the provisions of the trust agreement and to ignore what was done by both cotrustees in the administration of the trust.
Free access — add to your briefcase to read the full text and ask questions with AI
Cohet, J.
This is a proceeding under article 79 of the Civil Practice Act instituted by the Chase National Bank of the City of New York, as surviving trustee and as administrator, to render its final account of proceedings under an inter vivos trust agreement dated August 2, 1946, executed by one Joseph N. Ford, deceased, and an amendment thereto dated September 25,1946.
An answer interposed on behalf of the five appellants attacks the validity of the trust agreement and amendment upon various grounds. It is alleged that the documents were not signed by Joseph N. Ford; that he was incompetent to create the trust; that the execution of the trust agreement and amendment thereto were brought about by fraud and undue influence; that both instruments are invalid and that Joseph N. Ford, therefore, died intestate.
Objections to the account were heard by a Referee, who, after protracted hearings, reported to the Special Term that the original agreement and the amendment thereto were the free and voluntary acts of the deceased; that he was of sound mind when he executed the instruments; that the signature affixed to the instruments was that of the deceased; that the agreements were valid in all respects; and that there was no duress, undue influence or fraud practiced by his wife to procure the -amendment to the original agreement.
The Special Term entered an order confirming the report of the Referee and judicially settling the accounts of the Chase Bank as surviving trustee and administrator of the estate of Joseph N. Ford, deceased. From that final order this appeal has been taken.
Joseph N. Ford, the settlor herein, was married to Marie Ford in June, 1927. Apparently they lived happily together until Ford’s death some twenty years later. The deceased left no will. There were no children. Ford had a brother and four sisters, all of whom are still living, and who are the appellants.
On July 11, 1946, the settlor suffered a stroke, which caused him to become bedridden. At that time he was seventy-two years of age. He was a man of keen intelligence and he had been very successful in business. From the day he was stricken until April 2, 1947, the date of his death, he was under the constant care of his wife. No one of his four sisters had seen him during his illness; his brother Harry Ford saw him only on one occasion on a visit to New York. The sisters all resided in other States of the Union.
[155]*155On August 2,1946, in the presence of a representative of the Chase Bank and before a notary public, Ford executed a revocable trust agreement of virtually all his property, consisting of negotiable stocks, bonds and cash, worth between $500,000 and $600,000. He named himself and the Chase Bank as cotrustees. The securities and stocks were thereupon turned over to the Chase Bank.
The agreement provided that Ford was to receive the income of the principal of the fund for life, and upon his death, one third of the principal was to be paid to his wife, and the remainder was to go to his brother and sisters in equal shares.
Less than two months later, and on September 25,1946, Ford executed an amendment to the trust agreement, again in the presence of a representative of the Chase Bank and a notary public. This amendment was directed only to the distribution of the principal upon the settlor’s death. It stipulated that Ford’s brother and sisters were each to receive only $2,000, if they survived him, and that the remainder of the principal of the trust fund was to go to Mrs. Ford.
Great stress has been placed upon the fact that the amendment of September 25th, gave practically the entire remainder of the trust fund to the wife in the event of her husband’s prior death, while the agreement as originally executed gave her only one third. It is argued that the wife used undue persuasion, improper influence and coercion upon her husband to effect this change. It is to be anticipated that a wife will, under ordinary circumstances, affect the judgment and thinking of her spouse. Indeed it would be strange if a faithful wife of twenty years did not exert some influence over her husband’s thought and action with respect to the disposition of his property. That such influence was in this case undue or improper is, however, entirely speculative and wholly groundless.
A review of the evidence satisfies us of the correctness of the findings of the court to the effect that the agreement and the amendment thereto were the free and independent acts of Joseph N. Ford; that the deceased was not mentally incompetent when he executed them; and that they were not induced by fraud, duress or undue influence.
Appellants also argue upon this appeal that the agreement of August 2, 1946, and its later amendment creating a trust during the lifetime of the deceased were invalid and illusory, and that the deceased was merely attempting a testamentary disposition of his property; that inasmuch as the instruments were not executed with all the formalities required of a will, [156]*156they were invalid for all purposes, and therefore, Ford died intestate as to the assets for which the Chase Bank is accounting. It is argued that under the provisions of the trust, Ford exercised complete control over the investments until his death; that since he had the power of revocation and was the sole life beneficiary there was no valid trust inter vivos created, but that there was an attempted testamentary disposition of his property. We think that this contention is untenable.
The trust fund, established primarily to effect efficient management of the estate during the decedent’s illness, would be invalid and illusory only if the settlor had such control over the corpus as to make the cotrustee bank a mere agent so as to permit the settlor to do as he pleased with the property of the trust. (1 Scott on Trusts, § 57.6, pp. 353-354.) The principle involved is clearly stated in the Bestatement of the Law of Trusts in subdivisions (1) and (2) of section 57, as follows:
“ (1) Where by the terms of the trust an interest passes to the beneficiary during the life of the settlor, the trust is not testamentary merely because the settlor reserves a beneficial life estate or because he reserves in addition a power to revoke the trust in whole or in part and a power to modify the trust.
“ (2) Where the settlor transfers property in trust and reserves not only a beneficial life estate and a power to revoke and modify the trust but also such power to control the trustee as to the details of the administration of the trust that the trustee is the agent of the settlor, the disposition so far as it is intended to take effect after his death is testamentary and is invalid unless the requirements of the statutes relating to the validity of wills are complied with.”
The proof shows that the decedent exercised no more and no less power than his cotrustee, each sharing equally the proper administration of the trust during the lifetime of the settlor. Ford exercised only the control of a cotrustee, as established by the numerous approvals and disapprovals of the recommendations made by the bank, and as shown by the consultations he requested and received with representatives of the Chase Bank concerning taxes and investments. To say that Ford was the sole trustee and sole beneficiary, and that he had complete control of the fund, is to fly in the face of the provisions of the trust agreement and to ignore what was done by both cotrustees in the administration of the trust. The fact that the Chase Bank did not make investment changes in the principal unless they were approved by Ford, the cotrustee, does not mean that Ford had exclusive control of the assets. In seeking the approval of [157]*157the individual cotrustee on investments or changes to be made in them, the Chase Bank was merely following a recognized practice employed by banks when a bank acts as a cotrustee with an individual.
Moreover, the property which was the subject of the trust was clearly designated and identified so as to enable title to pass to the cotrustees. Actual delivery of the fund to the trustees was effected with the intention of passing legal title. Thus, the intention in good faith to transfer a present interest was clear. (McCarthy v. Pieret, 281 N. Y. 407.) The trust created was not colorable or illusory — it was a real, present and actual transfer of ownership of all of the settlor’s property to the trustees, and was valid in all respects. (Matter of Halpern, 303 N. Y. 33, 37; Newman v. Bore, 275 N. Y. 371, 379; Hart v. Hart, 194 Misc. 162, 164, affd. 274 App. Div. 1036; City Bank Farmers Trust Co. v. Charity Organization Soc., 238 App. Div. 720, affd. 264 N. Y. 441.)
In the cases of Newman v. Dore (supra) and Burns v. Turnbull (266 App. Div. 779, affd. 294 N. Y. 889) upon which appellants seem to rely, the court was chiefly concerned with its ruling that by means of the creation of an illusory trust a spouse should not thus be deprived of a statutory right to which he or she was entitled.
In Newman v. Dore (supra) the decedent had left a will which created a trust of one third of his property for his wife. Before his death, however, he established an inter vivos trust of all his property excluding his wife as one of the beneficiaries. Under the trust agreement the decedent, as settlor, had retained almost complete control of the trust property. The trust was held illusory, and it was decided that it could not be used as a means of defeating the expectant interest of the wife in her husband’s estate.
In Burns v. Turnbull (supra) a wife, eleven weeks before she committed suicide, created an inter vivos trust of her entire estate, which completely excluded the husband, with whom she was living, from any participation therein. The trust was held to be illusory because the settlor retained complete control over the property during her lifetime, and established the trust solely to cancel the expectant interest of the husband in the wife’s estate under sections 18 and 83 of the Decedent Estate Law.
In the present case there is no factual showing of unreality, nor can it be said that there was an intention of defeating the expectant interest of anyone. Here the trust agreement, as originally executed, gave to the widow, if she survived her husband, less than she would have been entitled to receive if [158]*158Ford had died intestate. The amendment executed the next month gave her much more than she would have received had he died without leaving a will. The trust agreements were properly executed. The amendment favored the wife, who had lived with him for two decades. There was no attempt made by the settlor to deprive his brother and sisters, of any part of his estate, for no one of them was entitled by statute to any portion of it if the settlor had chosen to leave a will giving his property to others, or if he had decided to create an inter vivos trust leaving the remainder to persons other than appellants.
The evidence fully sustains the validity of the agreement of August 2,1946, and the amendment of September 25, 1946.
The order should be affirmed, with costs.