The first questions to be decided arise upon objections to the competency of witnesses and of testimony upon which, by stipulation of counsel, decision was reserved. The plaintiff’s husband, who will have a tenancy by the curtesy initiate in said premises if his wife’s claim is sustained, was a competent witness. Albany County Sav. Bank v. McCarty, 149 N. Y. 71. As to the competency of the plaintiff to testify to the interview between her mother and Bather Hughes there is some doubt. The cases of Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 id. 327; Cary v. White, 59 id. 336, and O’Brien v. Weiler, 140 id. 286, seem to hold that a witness who is a party to the controversy and interested in the event of the action is competent to testify to conversations between the deceased, under whom the witness claims, and a third person when it clearly appears that the witness took no part in the conversations. Gambee v. Gambee, 24 App. Div. 448; Matter of Dunham, 121 N. Y. 577; Ditmars v. Sackett, 92 Hun, 384, and Matter of Bernsee, 141 N. Y. 393, lay down the rule that such a witness is not competent under section 829, Code of Civil Procedure.
The numerous and conflicting decisions of our courts under this section of the Code bear ample testimony to the difficulty encountered in attempting to construe its provisions, and to the impossibility of formulating any rule or rules which shall serve as a universal guide. It is quite plain that the courts, in making decisions under this section, have been compelled to consider the facts of each case, quite as much as the language of the statute.
In view of this difficulty and diversity of decision, it may be well to discuss, briefly, some of the cases which have decided against the competency of such witnesses.
■ In Matter of Dunham, supra, the court held that a nephew of
In Ditmars v. Sackett, supra, it was held that “ It is now quite-well settled that the personal transaction or communication between a witness having an interest in the result and a decedent,, to which the inhibition applies, includes a transaction or communication of the decedent with another in the presence of the witness-on the subject to which his interest relates, although the latter-takes no actual part in it.”
In Matter of Bernsee, supra, the latest utterance of the Court of Appeals is in the following language: “ What occurred at that time was a transaction between the testatrix and the witness, within-, the meaning of section 829 of the Code, although he took no actual-part- in the conversation and it was wholly between the testatrix and the attesting witnesses. If active participation in the conversation was necessary to exclude an interested witness, and he should; as an observer be permitted to testify to transactions in form between the deceased and third persons, although such transactions were in his interest, it would furnish an easy and convenient method’in every case of evading the statute. The decisions have enforced the-" spirit of the statute by excluding such evidence, and have treated; transactions between the deceased and third persons in the presence-of interested parties as if the witness actually participated therein-.”" Citing Holcomb v. Holcomb, 95 N. Y. 316, and Matter of Eysaman, 113 id. 62. These cases seem to bear out the statement inGambee v. Gambee, supra, that the former rule under said section-of the Code “ has been somewhat modified of late years.”
The conversation between the plaintiff’s mother and Father - Hughes consisted of the statement by the mother: “ This is my only child; this is the one that I want the property held in trust-for by the church.” This was precisely as though it had been, said to the plaintiff, and, under the rule of the Bernsee case, was clearly incompetent. This evidence is, therefore, stricken out, and' is not considered in the decision upon the merits.
The declarations of Batrick J. Corvin, Avhich are alleged to be against his interest, and Avhich are said to have been made prior-to the conveyance to the church, were clearly competent as against-
The conversations between Mary Corvin, deceased, and Mrs. McCollum and Mrs. Bechdol, respectively, are stricken out by consent, as they should be, for it is quite clear, upon reflection, that neither of them were competent.
There may be some doubt as to the competency of the alleged declarations of Patrick J. Corvin subsequent to the transfer to the church, but in the view which we take of the merits of the case, this doubt will be resolved against the plaintiff so as to give her the benefit of an exception. If, however, the evidence contained in these declarations were considered material to the correct decision of the case, we should still be inclined to this ruling, upon the authority of Sanford v. Ellithorp, 95 N. Y. 48; Kain v. Larkin, 131 id. 300, and Williams v. Williams, 142 id. 156. Having thus considered and disposed of these incidental questions, let us examine the principal question.
Was this real estate, at the time of its transfer to the church, impressed with a trust in favor of the plaintiff? In answering this question we must keep in view the fact that the complaint ’was framed, and the action was tried upon the theory that there were two separate and distinct trusts created for the benefit of the plaintiff. The first is said to have arisen out of the circumstances attending the original purchase of the property. The second is alleged to have been created in the transfer of the property to the church. After striking out the declarations of the Corvins, subsequent to the transfer to the church, and the conversation between Mrs. Corvin and Father Hughes in the presence of the plaintiff, there is little, if any, foundation left upon which to rear a trust in that transaction. It must be remembered that we are dealing not with the moral aspect of the domestic relations involved, but with questions of law and equity founded upon facts. If we assume, however, for the purposes of this discussion, that if all of the evidence which has been ruled out were to be left in the case, it would be impossible to evolve a valid trust out of the transaction with the church. The alleged admissions of the Oorvins are utterly at variance with their acts. While professing to have created a trust in favor of their daughter, they had, in fact,
It remains then to inquire whether a trust was impressed upon, this property at the time of its original purchase by Patrick J. Oorvin, for the benefit of the plaintiff, and whether the defendants,, the church, and Lizzie J. Oorvin, took the property charged with notice of that trust. In the discussion of these questions it will be assumed that if a valid trust was ever created it was never annulled; and that, if the said defendants took title with notice of the existence of such trust, the trust prevails.
Was there such a trust? The answer to this question must be found in the evidence relating to the circumstances under which the
According to the testimony of the plaintiff’s husband, there was a conversation between the plaintiff and her parents in 1875, in the course of which the latter told the former that if she would draw her money out of the bank and give it to them they would purchase a house for a home, where they would all live until the parents’ death, and then the plaintiff would have the house. That the plaintiff expressed her satisfaction with the proposed arrangement and drew her money out of the bank and gave it to her father. At this time there was talk of buying a house in Broome street, but owing to an alleged defect of title the purchase was not made. Ho purchase was made until 1880, when the property in suit was bought. During this interval of five years Patrick J. Corvin was continually on the lookout for a suitable place, and kept the moneys paid over to him by the plaintiff. When this property was bought the conversation of 1875 was substantially repeated. The testimony of Leary, the plaintiff’s husband, is corroborated by that of the witnesses Galvin, McCollum and Andrews. Mrs. Galvin testifies that about two years before the purchase of the East Broadway property Patrick J. Corvin told-her that his daughter Rose had given him her money to purchase a home. That in stating what he said to his daughter he repeated to Mrs. Galvin: “ You give it to me and we will buy a home; we will have it, and you can keep it when you won’t be as well able to work as you are to-day.” Mrs. Galvin testifies to another conversation with Mr. Corvin in 1886. It seems that at this time the plaintiff was living in Brooklyn, where the witness visited her. She brought the plaintiff’s sick child to its grandparents, the Corvins. Mrs. Galvin says she told the Corvins that they should have Rose back
Mrs. Andrews testifies that she talked with the Oorvins both before and after the purchase of the East Broadway house. The ■first talk was just before they bought it. They (Oorvins) said “they wanted to accommodate the invalid mother and sister of Mrs. Oorvin and have a home for Rose when they should die.” After they lived in the house the Oorvins said “ they were so glad they had a home of their own, and that Rose would have it after their death.”
It is obvious that these several declarations contain no words which in their literal meaning import a trust. Hence, we must look to • the surrounding and antecedent circumstances for the meaning which is to be given to the words. It may be well to note in passing that, the learned counsel for plaintiff do not claim that the declarations of the Oorvins are, in and of themselves, sufficient to create a trust; on the contrary, their claim is that “ equity raises a trust out of the confidential relation between plaintiff and her parents, and the transactions between them.”
In considering the circumstances in which these declarations were made, the court is not required, or even permitted, to adopt, without reservation, the' uncontradicted statements of witnesses as to these circumstances, when such statements are at variance with the real truth, as shown by other circumstances and conditions. It is stated, for instance, that the moneys furnished for the purchase of the property by Mrs. Oorvin and the plaintiff are moneys which they had earned. These statements are uncontradicted; but the circumstances show that they are only partially true. If it had been said that it was money which Mrs. Oorvin and her daughter had helped to earn it would have been literally true. It would
It seems clear, therefore, that the plaintiff has failed to establish a trust in her favor. “ While a trust may be' implied from acts or words of the person alleged to have created it, to establish it, there must be evidence of such acts or words on his part as that the "intention to create it arises as a necessary inference therefrom and is unequivocal.” Wadd v. Hazelton, 137 N. Y. 215. “ The settlor must transfer the property to a trustee or declare that he holds it himself in trust, and the acts or words relied on must be unequivocal.” Young v. Young, 80 N. Y. 422.
If we were to assume that the plaintiff did not know that her father took the title to the property in his own name she would be in no better position than she is. Section 53 of the statutes relating to uses and trusts'is only intended to operate as a protection to persons paying the consideration for a conveyance of property, “when the alienee named in the conveyance has taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration, or where
In view of our conclusion as to the existence of any valid trust herein, we deem it unnecessary to discuss the questions whether the defendants, the church and lizzie J. Corvin, took title for value and without notice. It may be added, however, in referring to this subject, that there is not the slightest evidence that either of them knew of any trust which grew out of the original purchase of the property.
The interviews between the plaintiff and Father Hughes, after the transfer to the church, and the plaintiff’s long delay in seeking relief, would add an interesting chapter to this discussion. But, in the view which we take of this case, this would simply serve to lengthen an opinion which, we fear, is already too long. For the reasons above given, the plaintiff’s complaint must be dismissed upon the merits, with one bill of costs to the defendants and the usual allowance.
Complaint dismissed, with costs.