The action is brought to enforce a trust which was, as alleged in the complaint: That while a vessel named the Tillie E. Starbuck was in process of construction, “ said William H. Starbuck did, on or about the 17th day of December, 1882, in substance and effect, agree and declare that he would and did hold in trust for the" plaintiff a one-eighth share of said vessel; that he would advance and pay for account of plaintiff one-eighth the cost of construction of said vessel, and of the .expenses of and losses of, and charges against, said vessel and owners, and carry the same, and said one-eighth share of said vessel, for account of plaintiff, until such time as *278such, cost, expenses, losses and charges, with six per cent interest thereon, should be repaid to him out of the earnings of said vessel, or.otherwise, and would thereupon transfer said one-eighth share of said vessel to plaintiff.” To prove this trust a letter was offered in evidence "by the plaintiff, signed by William Ii. Starbuck, the defendants’ testator, which is as follows : “ In conformity with our verbal understanding, this is to certify that I agree to carry for your cfc one-eighth interest in the new iron sailing ship, to be called the Tillie E. Starbuck, now in course of construction at the yard of Messrs. John Roach & Son, Chester, Penna., at the rate of six per cent per annum, the said one-eighth interest to be transferred to you when paid for, either from the earnings of said ship or otherwise.” This .was objected to upon the ground that its delivery had not been proved, and that it had not been shown that it ever passed from W. H. Starbuck to anybody. That objection was overruled, and the letter was admitted in evidence. There was also evidence that the defendants’ testator made a declaration to a witness that he, the defendants’ testator, “ said he was going to build the Tillie E. Star-buck for Sidney. He was going to put an eighth down for Sidney Starbuck and myself, an eighth each, and when the ship paid for it, with interest and insurance, it would be ours.” The plaintiff also offered to prove by one Bailey that at some time, not named, the defendants’ testator said that one Captain Baker wanted to buy an interest in. a ship owned by Starbuck, but that he, Starbuck, said that he never allowed anyone to own an interest in Ills ships, except that his brother Sidney owned an eighth in the Tillie E. Starbuck.
There was no other evidence to sustain the allegation of the complaint that the defendants’ testator held this ship, or any portion of her, as trustee for the plaintiff, and I think this testimony was entirely insufficient to prove such a trust.
The proof of the trust alleged by the plaintiff depends upon the construction of this letter which was introduced in evidence. That, in form, is a mere agreement to carry for plaintiff’s account an eighth interest in'a sailing ship then in course of construction. It is entirely without consideration. It is unilateral,, there being no obligation on the part of the plaintiff to pay for it. There is no proof that it was ever delivered to the plaintiff, or that it was ever in the plaintiff’s possession. The plaintiff’s counsel offered this *279. paper in evidence upon the trial, but it appeared in evidence that the plaintiff had been in the employ of the defendants’ testator, and there was no evidence, however slight, of the fact that this paper had been in possession of the plaintiff prior to the death of the defendants’ testator. It is not contended that this is a formal transfer of an eighth interest in the ship. The form of the letter expressly negatives such a construction. It is purely an executory agreement, whereby Starbuck agrees to carry for the plaintiff’s account an eighth interest in the ship, and to transfer such eighth interest to plaintiff when paid for, either from the earnings of the ship or otherwise. An agreement without consideration, purely executory in character, to transfer an interest in a ship to a person when that interest should be paid for, and without any corresponding obligation on behalf of the person with whom the agreement is made to pay for the ship, or to perform any service for it, cannot be enforced. It lacks every element essential to constitute a valid declaration of trust. It does not speak of a completed transaction. It does not certify that the writer at the time held this property for the plaintiff in trust, or that at that time the plaintiff had any interest, either as owner or otherwise, in the ship, but upon its face it agreed to carry an interest in the ship for the plaintiff, and to transfer such interest to the plaintiff when paid for, without any corresponding obligation on the plaintiff to pay for it, or to do anything about it.
What was said in Wadd v. Hazelton (137 N. Y. 219) seems to me to be entirely in point: “ The implication arising from the evidence must be that the person holds the property as trustee for another. The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a trustee or declare that he holds it himself in trust. An intention to give, evidenced by a writing, may be most satisfactorily established, and yet the" intended gift may fail because no delivery is proved. And where an intention to give absolutely is evidenced by a writing which fails because of its non-delivery, the court will riot and cannot give effect to an intended absolute gift by construing it to be a declaration of trust, and valid, therefore, without a delivery.” At most, here is an agreement to transfer an *280interest, in this ship in the future, made without consideration, where no delivery neither of the ship nor of the -agreement was proved, simply declaring an intention on behalf of the defendants’ testator to at some future time transfer an interest in this ship to the plaintiff. It seems- to me that such a contract is one without consideration and incapable of enforcement, and fails as a declaration of trust in the essential particular that no trust,is created; that no present transfer of the ownership of the ship from the defendants’ testator, as owner, to himself as trustee, is contemplated or declared, and no statement is made that would affect the title of the ship except an executory promise to- carry ■ and convey at a future time.
I think, therefore, that the judgment was clearly right and should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide event: