
    Charles E. Moses, Respondent, v. Albert H. Hatch and Susan A. R. Moses, Individually and as Executors, etc., of William Moses, Deceased, Appellants, Impleaded with Henry M. Moses, Respondent, and Others.
    
      When a trust is created in personal property.
    
    .Where it is evident from a letter written by .the owner of an insurance policy and of a membership certificate in a produce exchange that he, with an intent expressed therein to create a trust in the proceeds of such securities for the benefit of certain parties named in the letter, was about to assign them to another person by an absolute assignment, the trust, created by the subsequent delivery of the assignment, is not affected by the fact that he thereafter, and before such delivery, writes to such person that the first letter was written without much thought, “at same time you better preserve it and we can talk it over and see what may be added to it. ,i? "x" I did not intend to name in the assignment of the life policy anything, it being in trust, but leave that all with you, as the future brings it along, to carry out what I intend to have done, as you may understand my instructions and wishes; that will leave you free and clear of any one in the future to answer to but yourself, and you cannot be called, to account in any shape or way by my heirs or relations,” and further writes, “Your understanding of what I wish done seems to be correct, so far as the proceeds from the life insurance and P. D. E. membership is concerned, but not quite clear on the life policy,” and later still, “ I will see you or write more fully what I intend any money received over your dues shall be used for finally when closed up, &c., &c. Keep all the papers I send you and only take the policy to the company’s office to attach the assignment.”
    Appeal by the defendants, Albert H. Hatch and another, individually and as executors, etc., of William Moses, deceased, from a judgment of the Supreme Court in favor of the plaintiff and' the defendant Henry M. Moses, entered in the office of the clerk* of the county of Hew York on' the 17th day of March, 1897, upon the decision of the court rendered- after a trial at the Hew York Special Term.
    
      Artemas B. Smith, for the appellants.
    
      W. W. Niles, for the respondent..
   Patterson, J.:

The court below found that a trust was created in the securities assigned to the appellant Hatch, notwithstanding the absolute character of the assignment, and that the terms of the trust were established with sufficient definiteness by the letters written by William Moses, the creator of the trust, to the defendant Hatch. We think the interpretation of those letters by that court was the correct one. It appeared that prior to November, 1890, William Moses was the owner of the insurance policy on the life of "Van Bokkelen and of the membership certificate in the Produce Exchange assigned by him to Hatch. They being his property, he desired and intended that title to them should be made in such a. way that they might be kept for the benefit of the family of Charles H. Moses so that they would not form part of the assets of his own estate. That object is stated in the first of the written communications to Hatch made on the 19th of November, 1890. In that letter William Moses refers to the membership ticket, saying that he had bought it in the name of Charles H. Moses and wanted the payments kept up for the benefit of the family of the latter, and he then proceeded to state that what he wanted to do was to assign in trust the paid-up policy of life insurance and also the ex-member- . ship ticket, and after his (William Moses’) death to have Hatch pay all the dues so long as Charles H. Moses might live, and at the death of the assured in the life insurance policy, collect that policy, and, if Chai-Ies H. Moses then lived, to put the money so collected at interest and continue to pay the dues of the membership certificate; and should there be any money left from the life insurance or the sale of the membership certificate, William Moses then being alive, .to pay the whole proceeds" to his wife, and, if she were not living, then and in that case to pay it to Charles E. and Henry M. Moses, share and share alike, or to the one then living. That letter states the intention to assign and the general purpose of the assignment. It is not claimed on the part of Hatch, or any one else, that the assignment was not made in connection with some ulterior purpose of William Moses, in the nature of the constitution of a trust; but it is claimed that the subsequent letters of William Moses to Hatch indicate that there was only a general intention on the part of Moses to create the trust, and that no specific beneficiary was ever fixed upon. An analysis of the subsequent letters will show that this is not the proper view. On the 20th of November, 1890, William Moses wrote to Hatch that his letter of the nineteenth was written without much thought, but he also says, “At same time you better preserve it and we can talk it over and see what may be added to- it,” thus leaving for future consideration only, whether anything should or might be added to it. He says, “ I did not intend to name in the assignment of the life policy anything, it being in trust, but leave that all with you, as the future brings it along, to carry out what I intend.to have done, as you may understand my instructions and wishes; that will leave you free and clear of any one in the ■ future to answer to hut yourself, and you cannot be called to account in any shape or way by my heirs or relations, only to inform some one of them that I have parted with the life insurance to you, and my estate has no further interest-in it. It may be as well, perhaps, that I inform C. H. Moses of what I have-done with the L—policy and for what purpose.”

This letter is not susceptible of the interpretation that the trust purpose is to be indicated to the. trustee .only in the future, but is-merely an intimation that details of the arrangement may be made in the future, or that some modification of the trust purpose might be adopted in the future; but' there was no change of the purpose, already designated. That Hatch understood the trust purpose was-settled is inferable from the letter of November 24,1890, addressed to him by William Moses, and in which it is said, “ Tour understanding of what I wish done seems to be correct, so far as the proceeds from the life insurance and P. D. E. membership is concerned,, but not quite clear on the life policy,” and the writer then proceeds to say that the life policy is fully paid up, “ as you will see when I hand it to you,” evidently indicating that there was some misunderstanding on Hatch’s part with reference to the status of that policy, and the amount that was collectible upon it. The writer 'then stated that as to the Produce Exchange membership dues, he intended to-pay them as long as he lived, and then he wanted Hatch to pay them ' and open an account with the life insurance and membership, and keep all paid up until the life policy became due by the death of the . assured therein, or the death of Charles Moses, “ to end the payments-. on the P. D. E. membership.” After that, all that Hatch paid out he was to receive back from the money collected.on the life policy and the membership sale, adding, “ I think you see plainly what I intend.”' He also stated that he wanted no trusteeship in the' account, which. refers merely to the bookkeeping account. He desired no trusteeship to appear there, for the reason he had stated in his previous letter, namely, that Hatch might be able to say that there had been an absolute assignment to him. And he further adds, “As you see from what I have written, my object only is to keep the gratuity fund alive on C. H. M. till due for his family sometime in the future.” He then proceeded to say that he would make the assignments that day and send them in a day or two.

How, it seems to be true that there is a lapse of several years time before further correspondence took place with reference to. this matter; but on January 22, 1896, William Moses wrote to Hatch that he would send with that letter the life policy assigned to him “ by two assignments.” When those assignments, were delivered does not appear. Presumably the life policy, was not delivered until January 22, 1896. In that letter the writer states that “I will see you or write more fully what I intend any money received over your dues shall be used for finally when closed np, &c., &c. Keep all the papers I send yon and only take the policy to the company’s office to attach the assignment.”

We think that all this correspondence, full effect being given it, establishes these facts : That William Moses intended to create a trust in the proceeds of these two securities; that Hatch took 'the absolute assignment of them subject to the' execution of that trust; that the terms of the trust were expressed; that William Moses’ intention was plainly manifested and that all that can be said with reference to any change is, that Moses reserved to himself the right to make a change or some other disposition and never did so; that his purpose being clear to create the trust and Hatch having accepted the performance of the trust duty and no change ever having been made by the creator of the trust, we think Mr. Hatch was bound to carry it out in accordance with the intention of William Moses, as that intention is gathered from the whole correspondence. We also think that the terms of the trust, as found by the court at Special Term, are the correct ones. The provision with reference to Susan A. B. Moses, the wife of William Moses, seems to have had reference only to her receiving the benefit during the lifetime of William Moses. Any payment to her is made conditional upon William Moses being alive. So that under the conditions existing at the time this suit was brought, the real beneficiaries are Charles E. and Henry M. Moses, or the survivor of them.

It is urged that the trust as constituted offends against the statute, -preventing the suspension of the absolute ownership of personal 'property for more than two lives in being at the time- of .the creation of the trust; but no such question arises upon this record. It was not raised in the court below, was not passed upon, nor is there any exception which gives rise to it. The whole case was'submitted upon the mere question of fact as to the creation of the' trust and not as to its validity or enforcibility, if it were created.

The judgment below should be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.

Judgment affirmed, with costs.  