Brown v. Spohr , 87 A.D. 522 ( 1903 )

Laughlin, J.:

The appellant contends that each of these trusts is invalid, first, because the subject-matter was not identified in such manner at the .time it was created that the legal title could or did pass to the trustees ; second, because there was no adequate delivery of the subject-matter ; third, because the promissory notes had neither legal inception nor sufficient consideration to support them, and, fourth, because there was no intent to create a trust which should become legally operative during the settlor’s life and that his intention was to make a testamentary disposition of the property which would not be subject to a will contest. . .

There are four essential elements of a valid trust of personal property: (1) A designated beneficiary; (2) designated trustee, who must not he the beneficiary; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass,to the trasteé, and (4) the actual delivery of the fund or other property or of a legal assignment thereto to the trustee with the intention of passing legal title thereto to him as trustee. (Martin v. Funk, 15 N. Y. 134; Matson v. Abbey, 70 Hun, 475; Greene v. Greene, 125 N. Y. 506; Young v. Young, 80 id. 422; Sullivan v. Sullivan, 161 id. 554.) We are of opinion that the facts stated show the existence of each of these elements with respect to each of the several trusts attempted to be created. In the Marion Smith trust there was an actual delivery of the money to one of the trustees. This was none the less a delivery on account of the fact that the check was payable to her and she turned the money over to the trustee. It clearly appears from the actual transaction and from the declaration of trust that this was considered and intended as a delivery of $20,000 by the settlor to the trustees in trust, among other things, to loan the money to the firm of which the settlor was the sole member. He recognized the loan as from the trustees by crediting them with the amount thereof upon his books and delivering to them the firm notes therefor. It is immaterial that the money was not all advanced on the same day or on the day of the execution.of the trust deed. It all constituted one continuous transaction treated and recognized by the parties as if it occurred at the time of the' execution and delivery of the trust deed and the declaration accepting the same ; and, certainly, as against the next of kin of the settlor as such, it must be given the same force and effect as if the checks were drawn, the money delivered, loaned back and the notes taken at the precise moment of time that the deed of trust became operative. .

At the time of creating the other trusts it is doubtless true that the settlor could not have maintained an action against his firm for the moneys standing to his credit on the firm books; but on the facts here presented he had the right, as against his copartners, to withdraw from the firm business the amount standing to his credit on the loan account. They do not appear to have objected to this course, and we fail to see how any one, other than the creditors of the firm, can be heard to complain. It was the intention of the settlor to withdraw from the firm for the purpose of creating these-respective trusts the amount of the respective checks. He did not-formally deliver the money to the trustees, but he intended that the-action taken at the bank by Spohr should constitute a delivery. The-trust deeds recited" the delivery of the money and the trustees acknowledged its receipt. The firm by crediting the trustees with the proceeds of the checks and issuing its notes acknowledged the loan as from the trustees. In each instance the firm’s indebtedness, to the settlor was canceled and released by the amount of the trust fund and a new obligation incurred by the firm for a like amount to the trustees. The transactions wére not illegal and no one appears to have been prejudiced thereby. There was no mistake or fraud. There was full and adequate consideration for the notes. The legal title thereto is in the trustees, and payment thereof, even if resisted, which it is not, could be enforced by them.

Neither the reservation of the power of revocation or modification nor the recital that the beneficiaries received the benefits of the trust solely through the bounty of the settlor rendered the trusts illegal. (Von Cott v. Prentice, 104 N. Y. 45; Von Hesse v. MacKaye, 136 id. 114.) The settlor under this reserved power undoubtedly could have revoked the trust; but he did not do so, and, therefore, the reservation of the power of revocation or modification becomes immaterial. In the deeds of trust, other than that for the benefit of Marion Smith, which are in form an indenture between the settlor and two trustees named, after reciting that the trustees are to loan the money to the firm on six per cent note or notes, the interest payable semi-annually, the deed contains the following clause: “ And upon the decease of the said Joseph H. Brown (or before his decease should we in our discretion see fit so to do) to demand payment of said note or notes.” The appellant contends that in view of this clause the trustees were not authorized without the consent of the settlor to collect the notes during his life. The deed of trust in each instance was signed by the settlor only; and the acknowledgment -of the receipt of the money and declaration of the trust for which it was received, following the languáge of the deed of trust in each instance, executed simultaneously therewith, was signed only by the trustees. We think the proper construction of the trust deed is that the trustees were to he at liberty in their discretion, without consulting the settlor’s wishes and even against his protest, to enforce the payment of the notes at any time.

Lastly, it is contended that these trusts constitute a testamentary disposition of the property in violation of the Statute of Wills, and stress is laid on the provisions of the will showing the ■ feeling of the settlor toward his family. It is also pointed out that through the reserved power of revocation the testator could and it is claimed that he would have prevented the trustees from collecting the notes during his lifetime. This may be so, but it cannot be definitely affirmed. The firm having remained solvent, there was no occasion for the trustees to call in the loan. If they had had reason to believe that the investment was insecure it would have been their duty to collect the notes. Whether he would in that event have revoked the trusts is a matter of speculation. The Court of Appeals having decided in Van Cott v. Prentice (supra) not only that the reservation of the power of revocation or modification, but an express provision that the trustee shall hold the fund subject to the direction and control of the settlor does not invalidate a trust of personal property, it follows, we think, logically that these' trusts are. valid. Here the legal title to the notes was in the trustees. If they attempted to collect the notes he could have revoked the trusts, but he could have revoked them at will whether they attempted to collect the notes or not. Until they were revoked, the legal title to the property was in the trustees and the beneficiaries had a present interest therein during his life. In these circumstances it will not do to attempt to spell out an intention on the part of the settlor to exercise the power of revocation to prevent the beneficiaries receiving any actual beneficial interest in the trusts during his life. (See Von Hesse v. MacKaye, supra.) As between the beneficiaries and his next of kin or heirs, the trust, being legal in form and for purposes not forbidden by law, should be given force and effect.

It follows, therefore, that the judgment should be affirmed, with one bill of costs to the respondents.

Van Bbunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with one bill of costs to respondents.