
    Elizabeth E. Hutchins, Ex’rx, Resp’t, v. Abraham Van Vechten, App’lt.
    
      (Court of Appeals,
    
    
      Filed November 28, 1893.)
    
    1. Teust—Declaration oe.
    It is not necessary to produce a deed or formal writing intended for the purpose in. order to prove a trust, but letters or informal memoranda signed by the party, and even admissions in a pleading in another action between other parties, if signed by the party with knowledge of its contents, will satisfy the requirements of the statute if they contain enough to show the nature, character and extent of the trust interest.
    8. Same—Proof.
    In an action to declare a trust in certain real property the evidence showed that shortly after defendant purchased the land he executed a power of attorney to one P., authorizing him to sell it, and at the same time wrote him a letter stating that “whatever is realized, you will understand belongs to II. and myself jointly.” A paper was also produced in defendant’s handwriting, giving a description of the property, and stating that the deed says “nothing about our being entitled to six hundred inches;” also letters from defendant to H. and his son in regard to the land, and to a tenant, in which he says: ‘‘Although the title of the whole property is in me, there .is another party who has an interest.” Held, that the letters and unsigned paper were properly admitted in evidence, and that the evidence was sufficient to establish the trust.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff, adjudging that defendant held certain real property and the proceeds thereof, together with the rents, issues and profits arising out of the use and possession of the same, in trust for the joint and equal benefit of himself and plaintiff’s testator.
    
      Matthew Hale, for app’lt; Augustus S. Hutchins and Charles N. Morgan, for resp’t.
   O’Brien, J.

The judgment in favor of the plaintiff in the courts below adjudges that the defendant, under a deed of conveyance to him by Reuben E. Fenton on the 23d day of December, 1870, of certain lands in the county of Chautauqua, then became, and was, and ever since has been, seized and possessed thereof, and of the proceeds, rents, issues and profits, in trust for Waldo Hutchins, the plaintiff’s testator, to the extent of an equal undivided one-half part thereof as tenants in common. It appearing that the defendant, before the commencement of the action, had sold the land, the title to which he held in his own name, an accounting concerning the proceeds and the rents and profits was directed before a referee designated in the judgment. There is little, if any, dispute with reference to the facts, and practically the only question presented by the appeal is whether the trust impressed by force of the judgment upon the defendant’s title was sufficiently or legally established. The defendant relies upon the provisions of the statute of frauds concerning trusts of this character, and it therefore becomes necessary to determine whether the plaintiff’s proofs are such as that statute requires. The English statute on the subject, 29 Car. II, chap. 3, in its essential features was enacted in this state by the act of February 26, 1787, the twelfth section of which provides that “ all declarations or creations of trusts of any lands shall be manifested and proved by some writing signed by the party entitled by law to declare the trust. ” Thus the law stood for about forty years until the general revision of the statutes, when it was changed and made to read as follows; Ho estate or interest in lands, other than leases for a term not to exceed one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed bjr the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.” 2 R. S., 135, § 6.

After the revision a trust of the character claimed by the plaintiff in this case could not be created or established except by a deed or conveyance in writing. But by chapter 322 of the Laws of 1860 the legislature restored the law to its original condition by an amendment to the seventh section, substantially providing that a declaration of trust in lands might be proved by any writing subscribed by the party declaring the same. It is not necessary now to produce a deed or a formal writing intended for the purpose in order to prove the trust, but letters or informal memoranda signed by the party, and even admissions in a pleading in another action between other parties, if signed by the party with knowledge of its contents, will satisfy the requirements of the statute, if they contain enough to show the nature, character and extent of the trust interest. Forster v. Hale, 3 Vesey Jr., 696 ; Fisher v. Fields, 10 Johns., 494 ; Wright v. Douglass, 7 N. Y., 564; Cook v. Barr, 44 id., 156; Loring v. Palmer, 118 U. S., 321; 2 Story Eq. Jur., § 972 ; McArthur v. Gordon, 126 N. Y., 597; 38 St. Rep., 667; Uram v. Coates, 109 Mass., 581.

The evidence produced in behalf of the plaintiff was sufficient within this rule to establish an interest in the lands by her testator at the time of his death, which occurred on the 9th day of February, 1891. The conveyance to the defendant was shown by the production of the deed, which appeared to have been recorded in the proper clerk’s office December 3,1875. The plaintiff produced and put in evidence three papers found in an evelope in the safe of Mr. Hutchins after his death, and which were shown to have been in his possession during his life. (1) A power of attorney under the hand and seal of the defendant to John H. Platt, who was, at the time of its execution, the law partner of the deceased, hearing date June 5, 1878, acknowledged before a notary public in the city of New York, who also became a subscribing witness thereto. This instrument authorized and conferred full ¡lower upon Platt to sell the land for $8,000, payment to be made in the manner and as specified therein. (2) A letter in the defendant’s handwriting and bearing his signature, of the same date as the power of attorney, addressed to Platt, in which, after referring to the power of attorney and giving instructions permitting him to take certain notes for the purchase price of the land, the defendant says: “ Whatever is realized yon will understand that it belongs to Waldo Hutchins and myself, jointly and equally, and any further instructions Mr. Hutchins may give you you may comply with.” (3) Another paper, unsigned, but wholly in the defendant’s handwriting, describing the land conveyed to him by Fenton. It begins with the statement that the “ deed from Fenton to me is a warranty deed with full covenants.” And after the description ends with the statement that “the above is the description of the property as contained in a deed to me; nothing about our being entitled to 600 inches.”

The plaintiff also produced several letters written by the defendant to the deceased and one of his sons, after the execution of the power of attorney, in regard to taxes on the land. Also a letter written by the defendant to E. H. Fenton, then a tenant of a portion of the land, bearing date February 14, 1887, in which the defendant states that “Although the title of the whole property is in me, there is another party who has an interest. I expect to go to New York sometime next week, when I will see him and let you know what it is decided to do.” It is not necessary to the plaintiff’s case to show that the trust was created by or originated in a writing. The statute enacts a rule of evidence and is satisfied if the trust is manifested or proved by a writing, however it originated, whether by parol arrangement or otherwise. Crane v. Powell, 139 N. Y., 379 ; 54 St. Rep., 659. The defendant’s letter to Platt refers to the power of attorney, and that refers to the deed under which the title was held, giving its date and the parties to it. Both are signed by the defendant, and, reading them together, as they should be, the subject-matter and extent of the trust is sufficiently defined and specified, even without the unsigned paper and other letters. This proof is sufficient to sustain the findings of the learned trial judge, to the effect that the defendant took and held the title to the land in his own name, but in trust for the benefit of himself and the plaintiff’s testator, in equal shares as tenants in common. It was not, of course, one of the express trusts authorized by statute, but one arising under the forty-seventh section, which in equity entitled the deceased to a beneficial interest, and vested in him an estate of the same quality and duration as such interest. Ellwood v. Northrup, 106 N. Y., 172-9 ; 8 St. Rep., 687.

We agree with the learned counsel for the defendant that a trust cannot be impressed upon what appears by the deed alone to be an absolute title in the defendant, without clear proof showing a beneficial interest in another as well as its nature, character and extent, and that a failure to execute or deliver the necessary legal evidence to qualify the title is fatal to such a claim. Wadd v. Hazleton, 137 N. Y., 215 ; 50 St. Rep., 400; VanCott v. Prentice, 104 N. Y., 45 ; 5 St. Rep., 654.

With this point clearly in view we have carefully considered the very able argument of counsel in behalf of the defendant mainly devoted to the proposition that the proof in this case does not come up to the standard which the law demands in such ■cases. But we think that the written evidence produced at the trial is not fairly open to any construction except that given to it by the learned judge, and is consistent only with the theory that the deceased had in fact a beneficial interest in the - lands. The defendant stated under his own signature, when authorizing his ■attorney in fact to sell the property, that he was entitled to onelialf the price, and directed the attorney to consult with him in regard to the execution of the agency. There is nothing in the ■case to warrant the belief that this division of the proceeds of the sales, when made, referred to compensation as a broker or to anything else save an interest in the property to be sold. That is the natural conclusion which the judicial mind must reach upon reading the letters and papers in the light of all the circumstances. The trust, it is true, must be established wholly by a writing ¡sufficient within the statute, but when the writing is produced it must be interpreted, like all other contracts and written instruments, according to the intention of the parties ascertained from the language used and all the surrounding circumstances. The fact that no proof was given by the plaintiff of payment by the testator of any part of the consideration is not material. It is not always possible after the death of the party interested to give such proof, and it is not essential to the process of establishing the trust. A writing without any consideration whatever affords sufficient proof that the title conveyed by the deed is for the benefit of another.

The unsigned paper and the letters of the defendant bearing date subsequent to the power of attorney, and the letter which accompanied it, relating to the taxes on the land and the nature •of the defendant’s interest therein, were properly admitted in evidence. Thejr were all in the defendant’s handwriting, presumptively sent or delivered by him to the deceased, and they explained and tended to confirm what the defendant had stated in the first letter in regard to the interests of the-parties in the land,,,

There are some other exceptions in the record, hut it is not necessary to refer to them in detail. It is sufficient to say that, we have examined them all and have found nothing in them that would warrant us in disturbing the judgment, and it should, therefore, be affirmed, with costs.

All concur, except Peckham, J., not sitting. 
      
       Affirming 49 St. Rep., 491.
     