Crowe v. Brady

The Surrogate.,

The evidence in this case leaves the matter in no real doubt as to the source whence the money deposited by the decedent to her credit in trust for her children was derived, for it is entirely apparent that it all belonged to the husband of decedent, Thomas B. Brady, unless he divested himself of his title by delivering it to his wife as a gift; and I regard all the testimony taken in this proceeding upon the subject of the wife’s earnings as well as the earnings of the petitioner, as having no bearing upon that question, so that the only evidence militating against that of the husband as to the ownership of the property, is the fact that it appears to have been deposited by the decedent, and that the administrator entered in his account book, under the head of an inventory of the effects of the estate, the several sums thus deposited by his wife and withdrawn by him under the authority of his letters of administration; for 1 differ entirely with the referee in this matter, in his estimate of the significance of the declaration of the decedent to a third person, that she was going to deposit money in trust for her children, since this inquiry is between the estate of the decedent and the husband, who claims to be the owner, and no declaration of hers in his absence could affect his title. I am of the opinion that the testimony should not have been received on such an inquiry, for no claim, or declaration of hers, in the absence of the alleged claimant, would tend to show her title, or divest that of any other person, while any declaration tending to show liability on the part of the decedent would be binding upon her and her representative, and it appears to me that those two ideas have been confounded.

The fact of the deposit by decedent, in her name, as trustee for her children, does not seem to me inconsistent with the facts testified to by the husband, or with the ownership of the money by him, and there appears, therefore, to be nothing to militate against the testimony of the husband, except his own conduct in treating the money as assets of the decedent’s estate. The fact that he took out letters, and obtained the money under those letters, has no significance when explained, because, being thus deposited, it was the only method by which he could obtain possession of the money, unless he should resort to an action for it as the owner, and it is of very frequent occurrence that moneys deposited in the name of another, who is deceased, are obtained by the owner through the instrumentality of letters of administration. Therefore, nothing is left except the memoranda in his book, to which reference has already been made, to materially contradict or impair the force of the testimony given by the administrator, and it is quite clear that, if he had made a formal inventory, and filed it undei the statute, making a clear case, he could explain that inventory and overcome its force as a charge against him, by showing that the property did not, in fact, belong to the estate.

It is true that all the testimony of the administrator which was given, of transactions and conversations with the decedent, would have been excluded under the Code if objected to and offered by him, but it was called out by petitioner, and as it was not objected to, but offered by thé moving party, it stands as evidence in the case, and this court has no right to disregard it. If I understand the claim of the petitioner, it is substantially that this money principally and originally belonged to the father, and there is no evidence in the case tending to prove any gift by him to the decedent; on the contrary, all the evidence there is on this point is that of the decedent’s husband—that he delivered it to her to be deposited as his agent, and as his property, and all the title that she had is evidenced by the fact of deposit in her name, individually or as trustee for the children : but suppose, as to the deposit in favor of the children, it be held that the decedent was trustee of the fund for the children respectively, the death of the trustee did not constitute that trust fund assets of her estate, and at most it would devolve the trust upon her representative, and it seems to me equally clear that in that aspect of the case I have no authority to call him to account as trustee for the administration of that trust, for this court has no jurisdiction over such trustee ; and though by virtue of his representation of the deceased trustee, the trust may devolve upon him, yet it in no way constitutes him custodian of the trust estate, as assets belonging to the deceased trustee. If it had been alleged that the deceased trtistee had misappropriated the trust fund, then undoubtedly the cestui que trust could look to the estate, through its representative, for remuneration, but that is not this proceeding. If it had been presented as a claim against the estate, and disputed by the administrator, this court would have had no jurisdiction over the question, and the claimant would have been put to a reference under the statute, or an action against the representative. It follows that, in either aspect of the case, neither the administrator as such nor as trustee succeeding to the trust of the decedent, can be called to account in respect to funds deposited in trust by decedent for the children respectively, and that their remedy, if any, is by an action against the respondent, as having unlawfully appropriated their funds, not in his capacity as administrator ; as it is conceded by the petitioner that the money did not belong to this estate, and any interference with it on the part of the respondent was an unlawful conversion of it, which can only be redressed by action.

It was suggested that the respondent could at most be held to account in respect to the funds deposited in trust for the children, as trustee succeeding by representation to the trust estate of the decedent. I do not undertake, because it is unnecessary for the disposition of this case, to pass upon the effect of section 81 of 2 Revised Statutes (6 ed.), p. 1110, and the conflict between Bunn v. Vaughan (3 Keyes, 345); Kane v. Grott (24 Wend., 641); Savage v. Burnham (17 N. Y., 561), and Curtis v. Smith (60 Barb., 9), as to its application to personal estate; but in passing, it is proper to suggest that that section, under the head of uses and trusts, is embraced in title 2, entitled “Of the nature and qualities of estates in real property, and the alienation thereof,” and the express trust referred to in that section is defined by section of the same title, page 1106, prescribing the purposes for which an express trust may be created, and all relating to land, or the rents and profits thereof ; but it seems to me that unnecessary confusion has arisen in considering that section; for if it be held to only apply to real estate trusts, yet it is quite apparent that there is no law which would do more than vest the property in question in the representative of the deceased trustee, not as absolute owner, but simply holding the title as trustee, and answerable as such to the cestui que trust.

I am of the opinion that, the learned referee has given altogether too much significance to the entry made by the respondent in form of an inventory of the estate of decedent in his account book, on page 30, for if he had regarded so much of the funds as were deposited by the decedent in trust for the children as such trust, he would not have been likely to enter it as assets of this estate, especially as it appears, in the same account book, and by other evidence, that he proceeded to deposit a portion of the same fund in like trust for some of the children; and I am constrained to regard that memorandum as a mere statement of the amount he received from the banks through the instrumentality of his letters of administration, and not as a declaration that it belonged to the estate of the decedent.

Having reached this conclusion, it is unnecessary for me to pass upon the question whether, as between the estate in question and the cestui que trust, the trust was perfected and valid, or whether any credit should be awarded to the administrator for his support of the infant children of the decedent, though no guardian was appointed.

From a careful consideration of the testimony, and circumstances- of this case, I am of the opinion that no assets have been shown in the hands of the administrator belonging to this estate, and that the motion to confirm the report of the referee should be denied.