
    Arthur W. Palmer, an Infant, by Frederick A. Reid, his Guardian ad Litem, Appellant, v. Noyes F. Palmer, Individually and as Administrator, etc., of Noyes G. Palmer, Deceased, and Others, Respondents; Annette Huldah Pennoyer and Margaret L. Palmer, Appellants.
    
      Assignment — when it represents a gift rather than an obligation—in the former case interest is not chargeable.
    
    A father, having executed a paper by which, “ in consideration of love and affection,” he assigned to his son “six-tenths of the claims in my suits against Cypress Hills Cemetery, subject to six-tenths of the expenses and costs of collection, said suits being now in progress before a referee,” added thereto and signed a memoradum, which read: “ I have this day made an assignment to my son of a certain share of my interests in three suits pending in the Supreme Court of the State of Hew York. What my interests in the suits mentioned may be worth is uncertain, hut my intention is that my son shall realize at least three thousand and two hundred dollars out of the share assigned to him, as an equitable amount due him from property left in my hands by his mother, invested and reinvested by me in lots in Cypress Hills Cemetery, and which constitute a considerable part of my claim for lots against said cemetery.”
    
      Held, that the instruments afforded no warrant for the assumption that the property, mentioned as having- been received from the mother, ever belonged to the son, nor did they justify the inference that the father had committed a breach of trust, and was chargeable with interest on that account;
    That the words, “in consideration of love and affection,” used in the first paper, indicated that the father, in speaking of the “equitable amount due” his son, in the second paper, had in mind a moral obligation only, and not one which he could be forced to perform, and'that his intention evidently was that, as soon as he, or any one on his behalf, realized $3,200 out of six-tenths of his interest in the cemetery property, that amount should go to his son, not as a matter of legal right, hut as a manifestation of good will and paternal affection;
    
      That, consequently, the son was not entitled to interest upon such sum of §3,200;
    That, if regarded as a trustee, the father, not having heen shown to he negligent, should not he charged with interest on a fund which had earned none.
    Appeal by the plaintiff, Arthur W. Palmer, an infant, by Frederick A. Reid, his guardian ad litem, and by the defendants Annette Huldah Pennoyer and Margaret L. Palmer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of May, 1896, confirming the report of a referee as to the amounts to which Hoyes F. Palmer and the defendants, respondents, were entitled hy virtue of their respective liens upon the property to be partitioned in the action, and directing the interlocutory judgment entered in the action to be amended accordingly.
    
      A. F. Van Thun, Jr., and Cyrus V. Washburn, for the plaintiff, appellant.
    
      Wm. E. C. Mayer, for the defendant Noyes F. Palmer, respondent.
   Per Curiam :

By the interlocutory judgment in this partition suit, it was determined that the defendant Hoyes F. Palmer, and certain other persons had equitable liens upon the proceeds of the property to be partitioned, and with the assent of all the parties a reference was ordered to ascertain the amounts of such liens. The referee has reported the amount of the lien of the defendant Hoyes F. Palmer to be $5,680. This sum is made up of $3,200 principal and $2,480 interest, the interest being calculated from April 6, 1883. The referee’s report has been confirmed at Special Term, and from the order confirming it and amending the interlocutory judgment accordingly the plaintiff and two defendants now appeal, insisting that the respondent Hoyes F. Palmer is not entitled to the sum which has been awarded to him by way of interest.

The equitable lien to which the respondent has been adjudged entitled is based upon the following instruments:

“For and in consideration of love and affection, I hereby assign and set over to my son, Hoyes F. Palmer, of Jamaica, Queens County, State of Hew York, six-tenths of the claims in my suits against Cypress Hills Cemetery, subject to six-tenths of the expenses and costs of collection, said suits being now in progress before a referee appointed by the Supreme Court of the State of Hew York.

“Dated East Hew Yoek, Kings County, H. Y., April 6, 1883.
“NOYES G. PALMER, [L. s.]
“ Memoranda: I have this day made an assignment to my son (Noyes F. Palmer, of Jamaica, Queens County, N. Y.) of a certain share of my interests in three suits pending in the Supreme Court of the State of Hew York. What my interests in the suits mentioned may be worth is uncertain, but my intention is that my son shall realize at least three thousand and two hundred dollars out of the share assigned to him, as an equitable amount due him from property left in my hands by his mother; invested and reinvested by me in lots in Cypress Hills Cemetery, and which constitute a considerable part of my claim for lots against said cemetery.
“Dated April 6, 1883.
“NOYES G. PALMER, [L. s.]”

The referee construed these papers as a declaration that the respondent’s mother had left in the hands of Hoyes Gr. Palmer, his father, certain property belonging to the son, and as evidence “ that Hoyes Gr. Palmer had used this property, or the proceeds thereof, in speculating in Cypress Hills Cemetery lots.” Hence, he was of the opinion that Hoyes Gr. Palmer, having received this property as trustee for his son, was guilty of a breach of trust in having used it as his own, and was liable either for interest or the profits derived from such use, whichever the son might elect.

There seems to be no sufficient warrant for the assumption that the property, mentioned as having been received from the mother of Hoyes F. Palmer, ever belonged to Hoyes F. Palmer himself, as held by the referee; nor do we find anything to justify the inference that the father had committed any breach of trust and was chargeable with interest on that account.

We think that the instruments should be differently interpreted, and that greater weight should be given to the declared consideration of love and affection in the first paper. This language characterizes the entire transaction as purely voluntary. It may be regarded as in the nature of a gift, or as the assumption of a trust relation toward the son, but hardly as the discharge of a debt or other legal obligation. The words that stand at the' beginning of the first paper indicate that the father, in speaking of the “ equitable amount due ” his son in the second paper, had in mind a moral obligation only and not one which he could be forced to perform. The intent of the father evidently was that as soon as he, or any one in his behalf, realized $3,200 out of six-tenths of his interest in the . cemetery property, that amount should go to his son ; not as matter of legal right, however, but as a manifestation of good will and paternal affection. They embody no express contract to pay interest, and, we think, none should be implied; for the principal was invested in the cemetery land, where by no possibility could it produce any income whatever.

The proposition that where no time of payment is specified in a contract for the payment of money, it is payable immediately, and, therefore, interest begins to run at once, has no application here, for this was not a contract for the payment of money. It was a transfer of a beneficial interest in certain dioses in action, implying an undertaking on the part of the person who made the transfer to hold said interest as trustee, for the beneficiary, until the latter . should be able to realize thereon. The general rule is that trustees, who have been in no wise negligent, are not chargeable with interest on property that has earned no interest (Knowlton v. Bradley, 17 N. H. 458); and as there is absolutely no evidence of any negligence on the part of Hoyes Gr. Palmer since he constituted himself trustee for his son by the execution of these instruments, that rule should control the disposition of the present appeal.

The order amending the interlocutory judgment must be modified by striking out that portion which allows $2,480 interest to the defendant, Hoyes F. Palmer, as a portion of his equitable lien on the property to be partitioned, and, as thus modified, it is affirmed, without costs.

All concurred.

Order amending interlocutory judgment modified by striking out that portion which allows $2,480 interest to the defendant, Hoyes F. Palmer, and, as thus modified, affirmed, without costs.  