
    Alfred Lauterbach, Plaintiff, v. The New York Investment Co. et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1909.)
    Fraudulent conveyances — What constitutes — Conveyances to creditors— Eight to prefer creditors.
    Insolvency — Preferences and transfers by insolvent — Preferences by insolvent; Fraudulent transfer.
    Liens — Nature, establishment and termination — Loan of moneys used to pay life insurance premiums in absence of agreement for lien.
    Trusts — Creation and declaration — Execution and delivery; Effect of revocability.
    The delivery of policies of life insurance made payable to a person as trustee at such person’s place of business on Saturday by the insured with a letter requesting such person, in case anything should happen to the insured, to collect the policies and pay over the proceeds to certain creditors of the insured and to his wife in the manner specified, created a lawful trust, although the papers did not come into -the personal possession of the trust p-' until the following Monday and until after the insured had, on the intervening Sunday, committed suicide by shooting himself, and should not be treated as an attempted testamentary disposition of property.
    The mere circumstance that the trust was subject to revocation on the part of the settlor during his lifetime is not inconsistent with a lawful trust which would continue effective as long as it remained unrevoked.
    In such a case, the preferential scheme of the trust to pay certain creditors to the -exclusion of others cannot be held to have been intended as a general assignment for the benefit of creditors, nor intended.' to avoid the statute prohibiting preferences for more than one-third of the debts of an assignor of an assigned estate and was not, therefore, avoidable by the unpreferred creditors.
    Persons who loaned the decedent money which he used to pay the premiums upon the policies are not entitled to a lien thereon as security for the repayment of such moneys when they were not loaned under any agreement having reference to such policies.
    Action by a trustee for instructions from the court as to the proper disposition to be made of a trust fund.
    Hoadly, Lauterbach & Johnson (Sidney Rosenbaum, of counsel), for plaintiff.
    Hotchkiss & Barber (Henry M. Bellinger, of counsel), for defendant Guardian Trust Co.
    Charles E. Hotchkiss and Julian C. Harrison, for defendant Shattuck, as receiver.
    Phelps, Evins & East (Samuel H. Evins, of counsel), for defendant Spier.
    Gifford, Hobbs & Beard (James M. Beard, of counsel), for defendant Gifford.
    Thompson, Yanderpoel & Freedman (Henry Thompson, A. H. Vanderpoel and Carlton S. Cooke, of counsel), for defendant Bowling Green Trust Co.
   Greenbaum, J.

This action, which was commenced by Alfred Lauterbach, as trustee, and after his death continued by Louis Adler, as substituted trustee, was brought for instructions from the court as to the proper disposition to be made of a fund of $75,000, with accumulated interest, and a determination of the various claims to said fund made by the several defendants. On the afternoon of Saturday, May G, 1906, at about four thirty o’clock, one Charles L. Spier called at the law office of the late Alfred Lauterbach, and, learning that Mr. Lauterbach had gone for the day, he ohtained from a clerk, upon request, an envelope, into which he put certain papers, which he thereupon handed to the clerk in the sealed envelope, together with the hook, with the following instructions: “ I am going to leave these things with you to give to A. L. (meaning Lauterbach); put them in the safe and give them to him the first thing Monday morning; I will be over, but don't you wait for me; you give them to him.” The clerk did as requested, and on the following Monday morning at ten o’clock Mr. Lauterbach took possession of the papers and book, which was a pass-book of the Hew York Investment Company with the Guardian Trust Company. The papers consisted of two policies of insurance on the life of said Charles L. Spier, each issued by the Hew York Life Insurance Company for $50,000 and $25,-000, respectively, each bearing date April 5, 1906, and a letter signed by Spier, reading as follows:

“My Dear.A. L.— I want to hand you herewith two policies amounting to $75,000.00, made out to your order as trustee. In case anything should happen to me, will you dispose of the proceeds as follows: Pay into the Guardian Trust Company for account N. Y. I. & I. Co., $68,067.09; to Eugene B. Howell, $2,500.00; to my wife, Dot W. Spier, $4,432.91; total, $75,000.00. In accordance with a resolution of the board of directors of December 11, 1905, I have-paid out as follows: To settle judgment against N. Y. I. & I. Co., with costs and interest, $2,932.91; to C. L. S., for services as per resolution, $4,000.00 -— $6,932.91. There is due the Richmond L. & RR. for advances the sum of $1,048.75; and to Davies, Stone & Auerbach, with interest at 0 per cent, from March 22, 1897, $7,185.61. A. I. Beebe claims $2,400 for services. He might be paid $2,000. With the above matters paid off, the balance should be divided among the stockholders, as there are no other debts outstanding. If you can consistently carry this matter out for me and keep the facts to yourself, you would confer a lasting obligation upon me. Will you do so? Appreciating anything you may do, I am sincerely yours, Charles L. Spier. 1 turn over to you as treasurer the stock of the Ferry Com-' pany, vouchers and such other books as I have.”

Prior to Lauterbach’s receipt of these documents and at about four o’clock in the morning of Hay 7, 1906, Spier died as the result of a self-inflicted pistol shot. The policies, which were issued on April 5, 1906, originally had been made payable to Dot W. Spier, the wife of Charles L. Spier, 0s beneficiary, and on April 30, 1906, the insurance company, at Spier’s request, changed the beneficiary to Alfred Lauterbach, trustee,” and indorsed the change on the policy. The change in the beneficiary was effected in strict accordance with the terms of the policies, which conferred the right upon the assured to change the beneficiary at any time and from time to time,” provided the policies were not then assigned. On Hay 11, 1906, Alfred Lauterbach, trustee, received from the Hew York Life Insurance Company $75,-000, the proceeds of the two policies. The premium of the $50,000 policy was paid by Spier with a draft for $1,650¡.50 on the defendants Keech, Loew & Co., bearing date April 11, 1906, payment thereon being made on April 5, 1906. The premium of $1,357.75 on policy for $25,000 was paid in currency on Hay 5, 1906. The proofs established that in April and Hay, 1906, and down to the time of his death, Charles L. Spier was indebted to the Hew York Investment and Improvement Company in the sum of $75,000 by reason of moneys which he had obtained by means of two checks for $70,000 and $5,000, respectively, against the account of that company with the Guardian Trust Company, signed by him as president and bearing the forged signature of Alfred Lauterbach as treasurer of the company. The deceased was indebted to defendant Eugene B. Howell in the sum of $2,500, and the defendant Dot W. Spier claims that Spier had converted certain certificates of stock of the Hew York Investment and Improvement Company belonging to her, the value of which, however, was not shown. The plaintiff and the defendant Shattuck, as receiver of the Hew York Investment and Improvement Company; the Guardian Trust Company, and Howell, all of whom are named in the letter of Spier to Lauterbach, contend that a valid trust was created by Spier. The defendant Gifford, a judgment creditor, and the defendants Keech, Loew & Co. and Bowling Green Trust Company, general creditors of the deceased Spier, and Dot W. Spier, his wife, claim that the alleged trust is void and ineffective as against them. The Bowling Green Trust Company also claims that having loaned Spier $2,500 on May 5, 1906, out of which the premium on the $25,000 was paid, it is entitled to followthe loan into the policy and receive it out of the proceeds thereof. The defendant Dot W. Spier further contends that the invalidity of the trust operates to reinstate her as beneficiary under the policies and to entitle her to receive its full proceeds. Where, as in this case, there was no declaration that the designation of the beneficiary shall be irrevocable, the insured had the right under the terms of the policies to change the beneficiary from time to time, and it needs no "citation of authorities in support of the proposition that the defendant Dot W. Spier, the wife of the deceased, had no vested rights in the policies from the mere circumstance that originally she had been named as the beneficiary. Alfred Lauterbach, trustee, the designated beneficiary, was entitled to receive the proceeds of the insurance policies. Considering now the question of the validity of the alleged trust, it may be conceded that, until a declaration by Spier as to the purposes of the trusteeship of Lauterbach, the trust might be construed as for the benefit of the settlor. Had Spier died before such declaration the proceeds derived' from the insurance policies doubtless would have inured to the benefit of his estate, but, if the letter addressed to Lauterbach is a sufficiently clear and explicit declaration of the trust, the failure to deliver the policies and letter of instructions to Lauterbach in the lifetime of the settlor will not defeat the trust. Robb v. Washington & Jefferson College, 185 N. Y. 484-492, and cases therein cited. The subject of the asserted trust was peculiarly one which became effective only upon the death of the creator of the trust, and hence the reference in the letter to Lauterbach as to the disposition to be made by him of the proceeds of insurance “ in case anything should happen to me should not be treated as an attempted testamentary disposition of property, but as a declaration of the purposes of the trust created in the policies of insurance. The mere circumstance that the trust was subject to revocation on the part of the settlor during his lifetime is not inconsistent with a lawful trust which would continue effective as long as it remained unrevoked. Van Cott v. Prentice, 104 N. Y. 45 — 55; Robb v. Washington & Jefferson College, 185 N. Y. 485; Phipard v. Phipard, 55 Hun, 433; Moses v. Hatch, 21 App. Div. 468; affd., 163 N. Y. 554. If a trust was created it now remains to be considered whether it is valid as against the creditors of the deceased Spier. There is to my mind no legal proof of insolvency of the deceased, although the conviction is strong that such was nevertheless the fact. But, assuming a condition of insolvency, there is not the slightest ground for holding that the preferential scheme of the trust to pay certain creditors to the exclusion of others was in contemplation of law a general assignment for the benefit of creditors, or that it was intended to avoid the statute prohibiting preferences for more than one-third of the debts of an assignor of an assigned estate. The trust, therefore, was not avoidable by the unpreferred creditors. Delaney v. Valentine, 154 N. Y. 692, and cases therein cited. The conclusion to which I have come is fortified by the circumstance that the settlor’s death alone' resulted in transferring a comparatively insignificant asset in his lifetime to a very considerable one. An intent to evade the statute against preferences will only be inferred where the circumstances of the case with reasonable certainty lead to such a conclusion. Shotwell v. Dixon, 163 N. Y. 43. As to the claims of the defendants Keech, Loew & Co. and Bowling Green Trust Oompany, that they are entitled to liens on the fund for the moneys obtained from them by the deceased Spier and used in the payment of the premiums on the policies, it seems sufficient to note that these moneys were not received under any agreement having-reference to the policies, and hence these parties must be treated as ordinary creditors. There must be a decree in favor of the plaintiff adjudging the validity of the trust and the distribution of the trust fund in accordance with the directions of the trust.

Settle decree on notice.  