
    Thomas J. McCahill, Resp’t v. Annie L. McCahill, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed September 11, 1893.)
    
    Trust—Husband and wife.
    Plaintiff purchased a piece of real estate, hut, being an invalid, took the title in the name of his wife and had the deed recorded, and after-wards gave it to her, telling her to keep it, and if anything happened to him, to take care of it for herself and children, and that as long as he lived he would pay the taxes and insurance. Disagreements having afterwards arisen, the wife left her home, and the husband brought action to have it adjudged that she held the property in trust for plaintiff and to restrain her from disposing of it. Held, that the action could not be maintained; that there was no declaration of trust, but the transaction was the ordinary one of a gift from husband to wife.
    Appeal from judgment of special term, adjudging that defendant holds the property which was deeded to her absolutely in trust for the plaintiff and children.
    Action to declare a trust in.favor of plaintiff and his two children with respect to certain lands and premises at Larchmont, in the county of Westchester, to which defendant holds the legal title, and for a perpetual injunction to restrain defendant from possessing, enjoying or improving said lands.
    
      Martin J. Keogh, for app’lt; H. T. Dykman, for resp’t.
   Cullen, J.

Though it may seem inequitable that the defendant, having now separated from her husband and children, should retain the fruits of his generosity, we do not see how this judgment can be sustained either on the facts or the law. >

The premises, the subject of this actitin, were paid for by the plaintiff, who took the deed therefor in the name of his wife, the defendant. The deed is absolute in terms. The plaintiff is a lawyer. It was he who negotiated the purchase and by his direction the deed was drawn. He testifies that the wife said to him (he being in poor health at the time) that it would be a good thing if anything happened to him for her and the children to have a home, and that the title should better be taken in her name. He assented. Without her knowledge he obtained the deed and recorded it. Afterwards he gave the deed to his wife, saying, “ You keep that. If anything happens to me you are to take care of it for yourself and the children, and as long as I live I will pay the taxes and insurance, so there will be no expenses.”

The parties continued to occupy the premises as their residence for years, until differences arising between them, the defendant left the home, and resided apart from her husband. The wife then offered the property for sale, and the husband brought this action. We are inclined to the belief that this conversation did not amount to a declaration of trust in favor of any person, but that the transaction was the ordinary one of a gift by the husband to the wife, and that the reference to the home for the defendant and the children was only a statement of the motives dictating' the gift. Certainly, as far as. the husband is concerned, there was no agreement to hold it in any trust for his benefit. The children are not parties to this action, and their right cannot be adjudicated here. This action must, therefore, fail.

As a matter of law, also, we think the suit cannot succeed. The provision of the Revised Statutes as to trusts, page 728, § 51, prevents any trust being raised in the plaintiff’s favor from the fact that he paid the consideration for the conveyance. The statute of frauds, 2 R. S., 134, § 6, requires the declaration of any trust to be in writing. The transaction seems barren of any of those collateral, circumstances by which courts of equity are enabled to take cases out of the statute. This case is clearly to be distinguished from those cited by the respondent’s counsel in that here the deed was taken in the name of the defendant by the plaintiff’s consent, and equally by such consent the deed was made absolute in form.

The judgment appealed from should be reversed, and a new trial ordered, costs to abide event

Pratt, J., concurs.  