I am unable to concur in the reversal of this judgment, which, I think, is in accord with the evidence and the law. The test of our jurisdiction is not what we would have done had we been sitting in the place of the trial court, but whether the judgment appealed from is supported by the facts and is in conformity to law. Whether the instruments may be avoided on the ground either of unilateral mistake or fraud, depends upon (1) whether the Orths in fact relied on what Luyties said; and (2) whether in law they had the right to rely on it. The court below found that when the two Orths executed the instruments in question, they were fully aware of their contents, and the learned trial court refused to find that in attaching their signatures to such instruments the Orths relied on anything that was said to them by Luyties. This is equivalent to an affirmative finding that the Orths did not rely on what Luyties told them. To succeed on this appeal, it is necessary for the appellants to show that this finding is either without evidence to support it, is against the weight of evidence, or that the instruments are in and of themselves ineffectual to invest the respondents with title to the interests in dispute.
First, as to the finding of fact. That the two Orths knew the contents of the papers they severally signed can scarcely be disputed. Paul, the survivor, testified that he and the deceased Oarl, in response to a letter from Luyties, went from their home in Heilbronn to Stuttgart and called upon Luyties at his residence, where the conference with reference to the instruments took place between the three men, and that as the result of this conference the three proceeded to the office of the United States vice consul where the papers were severally executed by the Orths and as so executed were delivered to Luyties. From the testimony of both Paul and Luyties it is to be inferred that these two and Oarl were together from the beginning of the conference until the papers were executed. Paul also testified *521that the two papers were read aloud (presumably in the hearing of both of the Orths) “either * * * in English or * * * in German translation.” Paul spoke and wrote English, but Carl understood German only. Of himself, Paul admitted: “I had obtained perfect knowledge of its [the paper’s] entire contents.” That Carl’s knowledge was of equal degree can scarcely be doubted as it is not at all probable, assuming the paper was not fully translated to him, that his brother Paul, the interest of the two being identical, did not afford him (Carl) the benefit of his (Paul’s) superior intelligence. In the case of the ordinary adult plaintiff, this state of facts might safely be taken as evidence that the parties not only knew the words composing the text, but as well, that they comprehended the import thereof. I see nothing to overcome a similar presumption in this case. On the contrary, as I view them, the facts strengthen it. Both Orths were men of mature years and are shown to have been of superior education. Paul was a retired magistrate and appears to have had a knowledge of law sufficient to enable him to discriminate between certain of Luyties’ statements as to the legal status of the will, and others which to Paul seemed improbable, because Paul says that although he believed Luyties’ statement that because two relatives of the testator had signed the will as witnesses the will was thereby wholly voided, he placed no credence iu Luyties’ further statement that the will being invalid, the testator’s property would escheat to the State, for, as he says, “ 1 believed the legal right of succession would set in.”
Read in the light of this situation, the instruments sought to be avoided contain in themselves persuasive evidence that the two Orths fully comprehended their true import and quite sufficient proof to justify the trial court in refusing to find that either of the Orths relied on Luyties’ statement of the legal effect upon the will resulting from the fact that it was witnessed.as above set forth. The two instruments are in identical form except as to parties and signatures. They recite the death of Alfred the testator, “leaving a last Will and Testament * * * which said Will has been duly proved by the Surrogate of said Queens County and letters testamentary have been duly issued * * * and are *522now in full force and virtue;” that “the said beneficiaries Mrs. 0. Wasel and Mrs. Gertrude Miethe signed said Will as witnesses and by so doing are precluded from receiving the legacies bequeathed to them by the said Alfred,” and that the executors have been advised by counsel that they may not pay said legacies “without consent of the next of kin and heirs .at law of the said Alfred; ” that “ the party of the first part [Orth] is desirous of carrying out the wishes of the said testator as expressed in said last Will and Testament and of securing to the said Mrs. 0. Wasel and the said Mrs. Gertrude Miethe payment of the legacies to them bequeathed. Now, therefore, I, * * for the purpose of rendering effective the legacies bequeathed by the said Alfred * * * do hereby consent to the payment of said legacies * * * and for the purpose of enabling the said parties of the second part [executors] to make such payment I hereby assign * * * to the said [executors] such amount of my share in said estate as will be proportionate part (sic) thereof necessary for the payment of said legacies.” Could language be clearer ? On the face of these formal papers the parties are notified that the will has been “duly proved;” that letters testamentary “are now in full force;” that because of having witnessed the will, what? Is the will itself void ? No, merely that the two legatees are precluded from receiving “their legacies;” nevertheless it is the “purpose” of the Orths to render them “effective.” Who was Luyties, that this retired magistrate and his brother should accept his opinion on a question of American law ? He describes himself as a “merchant.” Presumably be had no knowledge of the law of this State, and his erroneous views concerning it strengthen this presumption of ignorance. Moreover, his conference with the Orths occurred on June Y, 1906, some seven years before the deposition of Paul was taken, a period . quite sufficient to have enfeebled the latter’s recollection, and what is more to the point, to have stimulated his acquisitiveness and so to have easily led up to a state of mind on his part where he was ready to affirm with confidence his reliance on Luyties. I find in the deposition of Paul further evidence to justify a refusal to accept his statement as to the extent to which he relied on what Luyties told him of the law. *523He says “I never thought of the possibility that by signing this [the instrument] I could obligate myself towards Gertrude Miethe and Oatharina Wasel to pay to them the entire or any part of the legacies which they were to receive. * * * I never conceived of the possibility that these legacies were to be taken from my and Carl Orth’s share of the estate, * * * but conceived * * * that these legacies would be paid from the entire estate by the Executor in advance; I never thought that Oarl Orth and I would obligate ourselves by these signatures to carry out the two legacies named in any way at our expense.”
May not the foregoing afford the key to the present action ? It is not probable that when the two Orths, or Paul, the survivor, on reflection recalled that the legacies were to be paid from the Orth’s portion of the estate alone, disappointment over the diminished returns led to his giving an exaggerated importance to the witless statement of Luyties concerning the law. On the whole, must we accept Paul’s present testimony as to the effect on his mind seven years before of what Luyties told him, as sufficient to overturn a finding based upon so many circumstances contradicting it ? Second. On this record I am prepared to go further than did the trial court, and to find not only that the Orths did not rely on what Luyties told them but also to hold as matter of law, and notwithstanding the rule of ratification or adoption, they had no right to rely on it. By this latter rule, one who knowingly appropriates or enjoys the fruits of another’s act will not after-wards, ordinarily, be heard to say that the act was unauthorized. But does this rule apply in a case of representations repugnant to the express terms of an instrument sought to be avoided, and where he who invokes the rule has notice of a lack of authority to make the representations relied upon. Of this rule Mr. Mechem, in his work on Agency (2d ed. § 435) says: “Like all other general rules, however, this is one which must be received with caution, and applied with discrimination; for it is perfectly clear that there are many cases in which one may receive a benefit without incurring any obligation either to return or to pay for it.” In Quinlan v. Providence Washington Ins. Co. (133 N. Y. 356) Judge Andrews *524said: “No principle is better settled in the law, nor is there any founded on more obvious justice than that if a person dealing with an agent knows that he is acting under a circumscribed and limited authority, and that his act is outside of and transcends the authority conferred, the principal is not bound, and it is immaterial whether the agent is a general or special one.” I concede that these words were used in a case involving the question of an agent’s authority and not a question of ratification or adoption, but their logic is, I think, equally applicable to a situation where the latter only is involved, in circumstances similar to the present. So far as this record discloses, Luyties was but a messenger to whom the papers were sent to be presented to the Orths for signature. As a merchant, and particularly as a foreign merchant, the Orths had no reason to believe that Luyties knew or had been asked to convey any information about the law of this State or that anything he might say on that subject came from the lips of other than an ignorant and uninstructed volunteer. Suppose that by the hands of an ignorant messenger, A sends to B, an Assyrian scholar, a communication couched in cuneiform characters, would any one say, not merely that he in fact did, but as well that in law B had a right to rely on any interpretation of the characters the messenger might be pleased to give, and no matter how contradictory such interpretation might be to the plain statement of the characters themselves ? Analyzed in the light of legal principles, we would find (1) the messenger would be presumed to have acted not for A, but solely on his own account; as to B, his acts would be inter alios acta; (2) B would be presumed to have dealt with the messenger in his individual capacity and not as representing A. (Story Agency [7th ed.], § 251a.) The situation is quite different from one where a contract which is sought to be enforced was itself negotiated or procured by him whose acts are repudiated. In such case the rule of ratification or adoption applies. Here, as I show hereafter, we have a case of consummated gift; and one which the donors seek to avoid because of the acts of one whom I regard as a stranger, a mere volunteer, having as to the phase of the matter now under discussion no legal relation to the.donee. True, the transfers from the Orths involved no *525consideration, but that of itself is not sufficient to entitle the donor to rescind for mistake induced by the act of a stranger. The interests described in the assignments were assignable. (Code Civ. Proc. § 1910; now Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 41; Chambers v. Lancaster, 160 N. Y. 342.) On delivery of the executed instruments, title passed to the executors for the use of the two legatees, and thereafter, so far as revocation or annulment are concerned, the title of the donees was as-strongly entrenched as if the transaction had been one of sale. (Pickslay v. Starr, 149 N. Y. 432.)
But the question remains, did the instruments constitute valid gifts ? So often have they been stated that it is unnecessary, except for the purpose of recalling them, to restate the essential ingredients of a valid gift inter vivos of personal property. They are (1) a clear intention on the donor’s part to make the gift in prcesenti with some evidence of acceptance by the donee, and (2) complete and unconditional delivery. Delivery may be in accordance with the nature of the thing given (Gannon v. McGuire, 160 N. Y. 476, 481), and hence actual or constructive (Beaver v. Beaver, 117 id. 421), and may be to a third person as agent or trustee for the use of the donee. (Bump v. Pratt, 84 Hun, 201; Taylor v. Kelly, 5 id. 115.) If evidenced by a written instrument, the instrument must be delivered (Williams v. Guile, 117 N. Y. 343), the essential thing being that the donor is divested of his title to and dominion, as owner, over the gift. (Beaver v. Beaver, supra, 428, 429.) And a transfer may be sustained as a gift, although the form of a sale is adopted merely to give effect to the donor’s intentions. (Van Deusen v. Rowley, 8 N. Y. 358.) Here the instruments express a consideration, but the intent to give is apparent from the entire situation as disclosed and is expressly manifested by the words “desirous of carrying out the wishes of the said testator; ” “ for the purpose of rendering effective the legacies; ” and “ for the purpose of enabling ” the executors “ to make such payment. ” On delivery of the instruments title to and dominion over the interests, which were the subject of the gifts, passed from the donors to the executors by the words, ‘ ‘ I hereby assign, transfer and set over ” to them “ such amount of my share in said estate as will be * * * *526necessary for the payment of said legacies.” The instruments expressed all of the essential elements of a transfer in trust for the benefit of the legatees. (Brown v. Spohr, 180 N. Y. 201.) The executors were not in the position of one to whom possession alone of the subject of the gift is given with directions to deliver to the donee, for they took the legal title of which the donors were completely divested. Although, because of the nature and situation of the interests transferred, the donees might not have been able to immediately enter upon their enjoyment, the transfer thereof, for their benefit, was immediate. That the two instruments were delivered with intent that they should be at once effective can scarcely be disputed, and that such delivery was irrevocable seems to me is a necessary corollary from the facts.
For the reasons given the judgment should be affirmed.
Laughlin, J., concurred.
Judgment reversed and judgment directed-in favor of plaintiffs, with costs in this court and in the court below. Order to be settled on notice.