
    (90 Hun, 70.)
    TODD v. VAUGHN.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Trusts—Delivery of Money in Expectation of Death.
    Where testator, shortly before his death, delivered money to defendant, and requested him to use it for certain purposes, defendant becomes a trustee of the fund, and is not obliged to account to the executor for the amount disbursed as directed by testator.
    2. Action for Money Had and Received—When Lies—Accounting.
    In such case the executor may recover the portion of the fund not paid out in an action for money had and received, and he is not restricted to an action for an accounting on the ground that in that form of action defendant would be permitted to recover commissions and expenses as trustee, where defendant had admitted, before the action was brought, that he had a balance which he was willing to pay over, and did not then claim any allowance for commissions.
    3. Witness—Transactions with Decedent.
    In an action by an executor to recover money delivered to defendant by testator for certain purposes, plaintiff testified that he demanded that defendant account for money, and that defendant admitted that testator had delivered the money to him. Held, that it was proper to permit defendant, on cross-examination of plaintiff, to bring out the balance of the conversation, to the effect that defendant also related, the circumstances of the delivery of the money given him by testator, and what testator directed him to do with it.
    Appeal from judgment on report of referee.
    Action by Frank M. Todd, as executor of the will of Ezra Lewis, deceased, against Squire V. Vaughn. From so much of the judgment as adjudges that plaintiff is not entitled to recover the entire amount claimed in the second count of his complaint, plaintiff appeals; and from so much of the judgment as adjudges that plaintiff is entitled to recover the sum of $70.45, with costs, defendant appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
    R. L. Armstrong, for plaintiff.
    J. G. Leggett, for defendant.
   LEWIS, J.

The judgment in this action was entered upon the report of a referee. There were two counts in the plaintiff’s complaint. Judgment was demanded in the first count for $400. The referee found for the plaintiff upon the first count, and neither party has appealed from that part of the judgment. Plaintiff, in the second count of his complaint, asked to recover of the defendant the sum of $417.47, for money had and received by the defendant to the use of the testator. The referee found that the plaintiff was entitled to recover, under the second count, the sum of $63.47, with interest, and that he was not entitled to recover the balance of said sum of $417.47; and both parties appealed from the decision of the referee under the second count.

The evidence tended to show that during his last sickness, and two or three days before his death, the testator delivered to the defendant $417.47, and requested him to use the same for the following purposes: First, to pay the funeral expenses of the deceased; and to deliver to Ezra Lewis, a nephew of the deceased, the sum of $200; to deliver to William Lewis $100, with which William was to pay the funeral expenses of his father, Aaron Lewis, deceased, who was a brother of the testator, and also erect a tombstone at the grave of said Aaron Lewis. The defendant received the money, and promised to appropriate the same as directed by the testator. After testator’s death the defendant paid, as directed, $200 to Ezra Lewis, $100 to William Lewis, and paid the funeral expenses of the deceased, which amounted to the sum of $54, which left $63.47.of said money in his hands unexpended. After the money had been so disbursed by the defendant, the plaintiff, as the executor of the will of the testator, demanded of the defendant the $417.47.

It is the. contention of the plaintiff’s counsel that, notwithstanding the 'circumstances under which the defendant received the $417.47, his authority to disburse the money as directed was revoked by the death of the testator. The referee, we think, correctly held that the defendant became a trustee of the fund, and, in paying it out, acted in discharge of a trust which he had assumed at the request of the deceased, and that he was under no legal obligation to account to the plaintiff for that portion of the fund which he had disbursed.

It is the contention of the defendant that he is not liable to the plaintiff, in this form of action, for the unexpended portion of the money which he concedes to be in his hands. He insists that, if the plaintiff is to recover the $63.47, it should be in an action in equity, for an accounting; that in that form of action he would be permitted to recover his commissions and expenses as trustee. It was fairly established by the evidence that, when the plaintiff demanded the money of the defendant, the defendant conceded that there was a balance in his hands of $63.47, which he was willing to pay to the plaintiff, and that he did not at the time claim to be entitled to any allowance for commissions as trustee. Upon these facts, we see no reason why the defendant was not liable to the plaintiff in an action for money had and received.

We have examined the exceptions of the respective parties to the rulings of the referee:

William Lewis was called as a witness by the defendant. He testified that he was present at the conversation between the deceased and the defendant concerning the $417.47. When asked to relate it,, the plaintiff objected that the witness was incompetent, under section 829, Code Civ. Proc., to testify to the conversation, upon the ground that he was personally interested in the event of the action. It appeared, as stated, that the sum of $100 was to be delivered to him, to be used to pay his father’s funeral expenses, and to pay for -a tombstone at his father’s grave. The entire sum was to be expended by him for the purposes named. He had no right to retain any portion of it to his own use. He was not, so far as appeared, under any legal obligations to pay his father’s funeral expenses, or to erect the tombstone, at his own expense. Whether he was a- competent witness to testify as to so much of the conversation between the deceased and the defendant as related to the $400 claim is not before us for our decision; for, as stated, both parties acquiesced in the referee’s decision concerning that sum. The witness does not seem to have had any personal interest in the second cause of action, and there was no reason for excluding his testimony as to that part of the conversation which related to the $417.47.

The plaintiff was called as a witness, and, to establish his second, cause of action, testified that he called upon the defendant, and demanded that he account for the money; that the defendant admitted to him that the testator delivered to him the $417.47. The defendant was permitted, on the cross-examination of the plaintiff, to call out the balance of the conversation; and show that the defendant, in the same conversation, related the circumstances of the delivery of the money to him by the testator, and what he was directed to do with the money. The plaintiff had related so much of the conversation as tended to charge the defendant with the receipt of the money, and establish his liability to account therefor to the plaintiff, as the representative of the estate. The effect of the balance of the conversation was to destroy or modify the use which plaintiff sought to make of the admission. Upon the plainest principles of justice and equity, the defendant was entitled to the balance of the conversation, with a view of showing what the real transaction was, for the purpose of showing that it was not what it appeared to be from the portion of the conversation which the plaintiff had related. Bearss v. Copley, 10 N. Y. 93; Nay v. Curley, 113 N. Y. 575, 21 N. E. 698.

The defendant was, we think, a trustee of the $417.47. This sum was delivered to him by the deceased for the purposes mentioned. The defendant deposited it, as the evidence shows, in a bank, to his. own credit, during the lifetime of the testator. The deceased parted with its possession. The circumstances amounted to a declaration of trust. Martin v. Funk, 75 N. Y. 134; Young v. Young, 80 N. Y. 422; Von Hesse v. MacKaye, 136 N. Y. 114, 32 N. E. 615. No writing was necessary to create the trust. In re Carpenter, 131 N. Y. 86, 29 N. E. 1005.

We fail to find any reason for disturbing the findings or conclusions of the referee. The judgment should be affirmed, but without costs of this appeal to either party.

BRADLEY and WARD, JJ., concur. DWIGHT, P. J., not voting.  