
    Elizabeth E. Hutchins, Executrix, Resp't, v. Abraham Van Vechten, App’lt.
    
      (Supreme Court, General Term,, First Department,
    
    
      Filed November 18, 1892.)
    
    Trust—Declaration of.
    Plaintiff brought an action to have declared that defendant held certain real property in trust for the joint benefit of himself and H., plaintiff’s testator. The evidence showed that shortly after defendant had purchased the property he executed a power of attorney to one P., authorizing him to sell the land, and at the same time wrote him a letter stating that ‘ ‘ what- ' ever is realized, you will understand, belongs to H. and myself jointly.” After H.’s death, a paper was found in the handwriting of defendant, containing a description of the property, and stating that the deed says “ nothing about our being entitled to six hundred inches.” It also appeared that the defendant had written various letters to H. and his son in regard to the land, and a letter to a tenant on the property, in which he says: “Although the title of the whole property is in one, therejis another party who has an interest.” Held, that the evidence was sufficient to establish a declaration of trust.
    
      Appeal from an interlocutory judgment and decree entered after a trial of the issues at a special term of this court, adjudging and declaring that the 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.
    
      Hale & Bulkeley (Matthew Hale, of counsel), for app’lt; C. N. Morgan, for resp’t.
   Van Brunt, P. J.

This action was commenced to have adjudged and declared that the 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 the plaintiff’s testator. The evidence in the case showed that “ on or about the 23d day of December, 1870, the defendant received from Eeuben É. Fenton and wife a deed dated that day, conveying to him the premises mentioned and described in the complaint for the consideration, expressed in such deed, of fifteen thousand dollars. Such deed was absolute in its terms, and it does not appear that at the time of its delivery to the defendant any declaration of trust or other instrument, evidencing that he took the conveyance of the premises in trust for the plaintiff’s testator, was executed by him.” And the question involved was whether the evidence which is hereinafter referred to established a trust in favor of the plaintiff’s testator. The testimony established “that subsequently to the execution and delivery of such deed, and on or about the 5th day of June, 1873, the defendant executed to one John H. Platt, then the law partner of the said Waldo Hutchins, a power of attorney, dated that day, empowering and authorizing the said John H. Platt to sell and convey the premises in question upon the terms in such power of attorney stated and expressed.” It also appears that, at the time of the execution and delivery of said power of attorney, the defendant wrote a letter to the said John H. Platt, dated the same day,' to wit, the 5th day of June, 1873, and signed by him, in which, after referring to the above-mentioned power of attorney, he states: “ Whatever is realized, you will understand that it belongs to Waldo Hutchins and myself jointly and equally, and any further instruction Mr. Hutchins may give you you may comply with.” With the two papers above-mentioned there was found, after the decease of Waldo Hutchins, another paper, wholly in the handwriting of the defendant, but without date or signature, containing a description of the premises in question, to which is appended, also in the handwriting of the defendant, this note : “ The above is a description of the property as contained in deed to me ; nothing about our being entitled to six hundred inches.” It further appears from the testimony that subsequently to the execution and delivery of the power of attorney and letter to John H. Platt, above mentioned, the defendant wrote various letters, one to Waldo Hutch-ins, Jr., in reference to the property in question, dated August 5, 1885 ; another to Waldo Hutchins, Sr., in reference to taxes on the property in question, dated May 7, 1886; a third to Waldo Hutchins, Sr., referring to the property and to the taxes thereon, dated ‘April 20, 1886; and a fourth, dated February 14, 1887, to one Fenton, of Jamestown, FT. Y., who was then a tenant of a portion of the property in question, in which the defendant says: “ Although the title of the whole property is in me, there is another party who has an interest. I expect to go to Flew York' some time next week, when I will see him, and let you know what it is decided to do.” Hpon these facts the court held the trust to have been established, and from the judgment thereupon entered this appeal is taken.

The Revised Statutes declare that “ no estate or interest in lands, •* * * nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created * * * or declared, unless by act or operation of law, or by a deed or conveyance in writing subscribed by the party creating or declaring the same.” 2 Rev. St. 134, § 6. By chapter 322 of the laws of 1860, the section of the Revised Statutes following the one quoted was amended to read as follows: “ The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament; nor to prevent any trust from arising or being extinguished by implication or operation of law; nor to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same,” etc.; thus assimilating our statute to the law as it existed prior to the adoption of the Revised Statutes, and making it substantially the same as the English statute upon the same subject, by which it was enacted that all declarations or creations of trust or confidence of any land, tenements, or hereditaments shall be manifested or proved by some writing signed by the party who was by law enabled to declare such trust. Therefore, in order to prove a trust, it is not necessary to produce a deed or declaration of trust under seal, but such declaration of trust may be proved by any writing subscribed by the party entitled to declare the same.

The question thus presented in this case is whether the writings to which attention has been called establish such a declaration. Our attention has been called to the case of Young v. Young, 80 N. Y, 422, as a strong case in support of the contention of the defendant. We are unable, however, to see that it has any application to the case at bar. The question in that case was a question as to whether a gift had been made of certain bonds which belonged to and were in the possession of the donor at the time of his death. ^ But there is no proposition in this case involving a gift; there is nothing to show that the defendant was speaking of a gift when he was speaking of the interest of Mr. Hutchins in the property in question. It was of a legal right, because he says in one place that somebody else has an interest in the property, and in another he speaks of it as being “our property,” and in another that, in case of sale, one-half belongs to Mr. Hutchins; not a mere authorization to pay, but a • statement of a fact. He says: “Whatever is realized, you 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.” It is urged that the alleged declaration is not sufficiently-clear and explicit, and does not point out with certainty the subject matter and the extent of the beneficial interest. It is difficult to see how this criticism can apply. The subject matter was distinctly specified in the power of attorney to Platt, and in the ■letter which contains the declaration of interest this power of attorney was referred to, thus pointing out with certainty the subS3t matter; and when he says that all proceeds belong to utchins and himself jointly and equally, the extent of the beneficial interest is no longer uncertain.

It is further claimed that the interest mentioned in the letter to Platt may have been compensation for services in effecting a sale or something in connection with the property. But this is inconsistent with the letters in reference to the taxes, and also with the statement in his own handwriting that another party had an interest in the property. The case of Cook v. Barr, 44 N. Y., 156, certainly does not sustain the contention of the defendant. In that case it was sought to establish a trust by certain allegations in an answer, and it was held that all such allegations were perfectly consistent with absolute ownership in the land, and no trust in the land was properly or necessarily inferable from them. But in the case at bar there is no such ambiguity. The declaration is explicit that another party has an interest in the land, and that whatever is realized from the land belongs to Hutchins and the defendant, jointly and equally. From this language it is impossible to draw any other inference than that the defendant and Hutchins were jointly interested in the enterprise in respect to this land. It is not necessary to notice the various theories advanced by the learned counsel for the appellant, because it seems to us that they torture the plain language used in the documents offered in evidence from their manifest and natural meaning; and suppositions are indulged in which have no foundation except in the imagination, it being suggested that the defendant proposed to make a gift of the half of the proceeds of this property in case of a sale. But no words were used to indicate any such intention. A man does not give to another what belongs to that other.

It is also claimed that there is no evidence in the case tending m the slightest degree to show that a trust was created at the time of the delivery of the deed from Fenton to the defendant. The evidence was sufficient, as already seen, to justify the court in finding that a valid trust existed in favor of the deceased, Hutch-ins, and the presumption would necessarily arise that such trust was created at a time which would make it effective, rather than a presumption which would enable the defendant to shield himself under the statute of frauds. The various other exceptions in the case have been examined, and none of them seem to us to be of any materiality. We are, therefore, of the opinion that the judgment appealed from should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.  