At the time of the death of the testator all his personal estate, according to the findings, was in a safe deposit box, of which the plaintiff had the key. There was also in this box an envelope containing a canceled bond, secured by mortgage, and certain insurance policies which it is conceded belonged to the plaintiff and related to a parcel of real estate owned by her. Fastened to the envelope by a rubber band were eighteen $1,000 bonds of the Charleston, Clendennin and Sutton Railroad Company. The envelope bore two indorsements, one in ink, not in the handwriting of the testator, describing the bond and mortgage — and the other in pencil, which was in the testator’s handwriting — “ Belongs to Mary D. Gegan.” The plaintiff claims these bonds, and this action was brought to impress a trust in her favor upon them. After a trial at Special Term the complaint was dismissed upon the merits, and the plaintiff appeals.
I am of the opinion the court erred in dismissing the complaint. In Govin v. de Miranda (140 N. Y. 474) there was found in a box in a safe at the testator’s office a sealed envelope with the following indorsement: “A declaration in favor of Emilia, Felix, Guillermina Govin and Luz Diazy Sanchez. * * In the envelope was a paper signed by the testator, which, so far as material to the question here under consideration, read :■ “ There is besides in my safe a parcel containing $29,000 in bonds of the Iowa division- railroad, *189and out of them $10,000 belong to Luz Diaz y Sanchez, * * * and the balance belongs to the aforesaid Einilia, Felix and Guillermina, share and share alike. No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this money only for what I may consider proper.” In the same box were found thirty-eight bonds of the Chicago, Burlington and Quincy Bailroad Company, Iowa division, and the plaintiffs brought an action to recover nineteen of these bonds. The court held that they were entitled to recover, saying: “ The bonds were in his possession, as one must infer, under some agency or possibly upon some trust, under which he had authority to convert them and apply the proceeds consistently with the ownership of the bonds by the plaintiffs. It cannot be supposed that after declaring that the bonds belonged to the plaintiffs as matter of conscience and justice he reserved the right to dispose of them for his own benefit as he pleased. The reservation must be made consistent with the prior declaration of ownership, if possible; and that it can be is quite apparent. Whatever power or agency he reserved to himself in the bonds, to be exercised for the benefit of the plaintiffs, was revoked by his death, the reserved power never having been exercised. We think, therefore, that the paper furnishes, in the absence of any evidence explaining or contradicting it, satisfactory proof of the ownership of the bonds mentioned therein by the plaintiffs.”
In Matter of Gallagher (1 App. Div. 65) there was found among the testator’s papers one addressed to the executors of his will, which read: “You will pay Philip E. Gallagher * * * $500. I owe him that. He is my old friend and may be too modest to put in a claim.” The executors refused to pay, and thereupon action was brought. At the trial the complaint was dismissed and the judgment affirmed by this court, but on appeal the same was reversed (153 N. Y. 364), the court saying: “The referee refused to give any force to the memorandum, either as an obligation or as constituting an admission by the decedent of any liability to the claimant. He held that it did not create an obligation, because it was never delivered, and that it could not be regarded as an admission because the decedent retained it in his possession. He was clearly right upon the first question, but erred in respect to the *190second. It was an admission of a legal enforceable liability to the claimant for the sum stated therein. * * * As an admission it was competent evidence, although the testator retained it in his possession.”
And in Starbuck v. Farmers' Loan & Trust Co., No. 1 (28 App. Div. 272) defendant’s testator, who was a shipowner, had contracted for the building of an iron sailing ship. While the ship was in the course of construction, in the year 1882, he wrote- to the plaintiff, his brother, as follows: “ In conformity with our verbal understanding, this is to certify that I agree to carry for your °jc one-eighth interest in the new iron sailing ship, * * * 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.” After the death of the testator in 1896 plaintiff claimed that his executors should account for the earnings of the ship and transfer one-eighth interest to him. Upon the trial of the action a witness testified that the decedent had stated to him: “ He was going to put an eighth down for Sidney Starbuclc and myself, an eighth each, and when the ship paid for it, with interest and insurance, it would be ours.” Plaintiff also offered to prove by a witness that decedent had, after the letter was written, said that plaintiff owned an eighth of the ship, but this was excluded on defendant’s objection. The complaint was dismissed, but this court reversed the judgment entered thereon and ordered a new trial. Mr. Justice O’Brien, who delivered the opinion, said : “ Although, as stated, we must assume that the writing was delivered because produced by the plaintiff, we should not be inclined, if it stood alone, to regard it as a valid declaration of trust. But if, in addition to the writing, we take the subsequent declaration of the testator that the plaintiff owned a one-eighth interest in the vessel, which declaration the plaintiff offered to prove, but which was excluded under objection, then we think that the principles enunciated in another of the many cases growing out of the litigations between Govin and deMiranda (140 N. Y. 474) would be controlling.” (See, also, Matter of Schinzel, 127 App. Div. 941; Matter of Farmers' Loan & Trust Co., 47 id. 448; Rand v. Whipple, 71 id. 62.)
If the authorities cited are to be followed, then it seems to me the *191plaintiff was entitled to recover. Here the testator had several months prior to his death stated to his brother that he intended to give to the plaintiff certain bonds, and thereafter stated to his partner that he had given them to her, and at another timé, when a question arose about putting the bonds up as collateral, he stated that lie could not do so without using “ Miss Gegan’s bonds, and he did not propose to do that.” When these declarations are supplemented by proof that the decedent actually selected from his other securities the bonds in question and put them in a package with papers which concededly belonged to the plaintiff, and wrote on the outside of the package “ Belongs to Mary D. Gegan,” it seems to me a case was made out equally as strong as any of the authorities cited.
It is not seriously questioned but that the testator did what he supposed was necessary to lodge the title to the bonds in the plaintiff, but a majority of the court is of the opinion that the evidence does not establish a gift inter vivos and the written declaration is insufficient to establish a trust. The written declaration, supplemented by decedent’s oral declarations and his act in selecting the bonds, is sufficient to establish such interest in the plaintiff as enables her to recover the bonds or the proceeds thereof, and this whether the act of the decedent be considered a gift of the bonds to her or constituting himself a trustee 'for her benefit.
In reaching this conclusion I do not mean to hold that the rules relating to gifts or trusts should be relaxed in any way. Such rules are designed to prevent the allowance of fraudulent and fictitious claims, but whenever the court can see as I can here that the claim is an honest one, then technical rules ought not to be permitted to work injustice.
The judgment appealed from, therefore, should be reversed and a new trial ordered, with costs to appellant to abide event.
Pattekson, P. J., concurred.
Judgment affirmed, with costs.