
    Catharine E. Beeman et al., Resp’ts, v. Charles Beeman et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Tkust — Cheati on.
    Where a father deeds- land to several children and takes’ back mortgages to himself, which contain the condition that, after his death, a certain amount of the mortgaged debts should be paid to his other children, no trust is Created, in the absense of any consideration for the condition or any declaration of trust at the time.
    Appeal from a judgment in favor of plaintiffs.
    The facts, as they must be here assumed, are that on March 20, 1880, Lyman Beeman made deeds of his lands, in distinct parcels, to his children, the defendants Charles Beeman, Henry S. Beeman, and Eunice Eldred, respectively, and took from each of them a mortgage thereon, in which Lyman Beeman was named as mortgagee, containing, the condition for the payment of the sum of $62.72 to the party of the second part annually during, his life, and for the payment of $533.35 in one year after his death, and one year’s interest to Catherine Beeman, wife- of his son William, and Betsy Swift, “heirs of said Lyman Beeman, in equal shares; ” that Lyman Beeman retained the mortgages in his possession,, and caused that of Henry S. Beeman to be recorded ; neither of the others was recorded; Lyman Beeman died February 26, 1891; and that some time before his death he destroyed the mortgages so made by Charles Beeman and Eunice Eldred. The purpose of the action was the establishment of the lien of the" mortgage of the defendant Charles Beeman. Judgment to that effect was directed and entered. 1
    
      Frank Brundage, for app’lt; E. O. Farrar, for resp’t.
   Bradley, J.

— The view of the trial court was that by the execution and delivery of the mortgages to Lyman Beeman an irrevocable trust was created in behalf of the plaintiffs. It would have been so if a trust to that effect had been expressly declared in the instruments. Martin v. Funk, 75 N. Y. 134; Schulter v. Bowery Sav. Bank, 117 id. 125; 26 St. Rep. 922; Beaver v. Beaver, 117 N. Y. 421; 27 St. Rep. 405; Id., 137 N. Y. 59; 50 St. Rep. 69: Bank v. Albee’s Estate, 64 Vt. 571. And when the trust is not, in words, declared in the instrument, it is entitled to-that character if such clearly appears to have been the intention of the donor. Mabie v. Bailey, 95 N. Y. 206, McPherson v. Rollins, 107 id. 316; 12 St. Rep. 488. In the mortgage made by the defendant Charles Beeman to Lyman Beeman, no trust was expressed, nor, so far as appears, did any declaration of trust, attend the making of the conveyance and mortgage. And unless something further than the terms of the instruments themselves import arises out of the transaction, or otherwise appears to so characterize it, a trust was not impressed upon it in favor of the plaintiffs, but, as to them, it would be treated as in the nature of a testamentary provision. Townsend v. Rackham, 143 N. Y. 516; 62 St. Rep. 851. The condition in the mortgages in behalf of the plaintiffs was without consideration on their part, and was the result of the voluntary direction of the mortgagea In such case it was said in Beaver v. Beaver, 117 N. Y. 428 ; 27 St. Rep. 405, that “ to constitute a trust there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.” It was there held that no trust existed. And on the review of the second trial the same reason was given for a like result On that trial the evidence warranted the finding made, that the money in question was deposited by the father “ with the purpose and with the intent that such moneys should thereafter remain the property ” of his son named. It was held that this new fact did not alter the legal situation, or warrant the inference of a trust 137 N. Y. 65; 50 St. Rep. 69. In none of the cases cited by counsel, other than McPherson v. Rollins, was it held that a trust was created without the declaration to that effect by the donor at the time of the transaction out of which it was claimed to have arisen. And the main distinguishing feature of that case from Townsend v. Rackham, as mentioned by the court in the latter, is in the fact that the payment of the annuity to the beneficiary was not postponed until after the death of the donor, while in the Townsend Case, and the one at bar, the plaintiff could take nothing during the life of the mortgagee. It is deemed unnecessary to further consider the significance of that distinction. It may be inferred, as found by the trial court, that the conveyances to three of his children, and their mortgages containing the condition for the ultimate payment of certain sums to the plaintiffs, were made and taken by Lyman Beeman for the purpose of making a division of his property among his children. He took and held the mortgages. He could have effectually imposed, in favor of the plaintiffs, a trust upon such provision for payment to them. The mortgages were made without their knowledge. When the fact was afterwards ascertained by them, they undoubtedly expected to derive from them the benefit of such provision, if they survived their father. And it may be assumed that when the father caused the instruments to be made he intended that such provision should be available to them after his death. It does not, however, appear that he at any time made any expression to the effect that he held the mortgages in trust for them, to any extent. An intent to give, ineffectual as a gift, is not for that reason a trust. Young v. Young, 80 N. Y. 422. The difficulty is that the intent of Mr. Beeman, at the time the mortgages were taken, to give the plaintiffs, and that they should finally have, the amount so provided by them, was not supplemented by any expression to the effect that they were taken and held by him in trust for the plaintiffs. There is, therefore, wanting an explicit declaration of trust, and, within the rule announced by the court in the Beaver Case, there is a want of circumstances appearing, requisite to impress that character, in favor of the plaintiffs, upon the mortgages in the hands of the mortgagee. The view of the court, as there expressed, is that when the inquiry is dependent upon circumstances they must be such as to permit no reasonable degree of uncertainty of the purpose of the alleged donor to create a trust, to render them effectual for its support as such. Since the Townsend Case, that of McPherson v. Hollins cannot be relied upon to support the present one; and, although it is there distinguished by the court, it seems quite evident that, upon the subject of a trust, it is so limited by the doctrine of that and the other cases hereinbefore cited as to render it of little value as authority.

It is not seen that there is anything essential bearing upon the question in the fact that four years after the conveyances, etc., were made, the five children of Mr. Beeman joined with him in the release of their contingent interest in the estate of their grandfather, for the discharge of a mortgage to the latter, and held by his personal representative, upon the land so conveyed, and covered by the three mortgages. This release by the plaintiffs may have been founded upon their expectations, which good faith on the part of the father should have i nduced them to observe, but this release does not appear to have been given upon any agreement or declaration creating a trust in their behalf. It is unnecessary here to inquire what other remedy the plaintiffs may have, arising out of that transaction, if they finally fail to support their legal claims upon the mortgage made by the defendant Charles Beeman. The conclusion follows thst no trust appears to have been created in behalf of the plaintiffs, and that if Lyman Beeman, .during his life, purposely destroyed that mortgage, his act in doing so must be deemed a invocation by him of the provision contained in dt for payment tp them after h-is death.

The judgment should be reversed, and a ¡new trial granted; costs of this appeal tp abide the final award of costs.

All concur.  