
    Guion v. Williams et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    Trusts—Evidence.
    There was evidence that plaintiff’s husband, since deceased, had the management of her money, and had invested part of it in stock certificates; that the certificates had been originally made out in his name, as trustee for plaintiff, and her naipe afterwards erased, leaving one of the certificates in her husband’s name individually, and the other in his name as trustee, the rules of the companies being such that certificates of stock could not be issued in trust without inconvenience; that the dividends had been deposited to plaintiff’s credit; that after her husband’s death the certificates were found in his vault, in an envelope, with other certificates belonging to plaintiff; that on the envelope was indorsed plaintiff’s name, in her husband’s handwriting, and a further indorsement, signed by him, setting forth the contents of the envelope, including the certificates in question, and directing his executor to transfer them to plaintiff. Held, that the evidence established that the certificates were held in trust for plaintiff, by her husband.
    
      Appeal from special term, Kings county.
    Action by Martha A. Guión against David T. Williams and Isaac M. Hunt, executors of Benjamin L. Guión, deceased, to compel defendants to transfer to plaintiff two certificates of stock belonging to her, but held by defendants’ testator in his own name. Plaintiff was the widow of defendants’ testator, and they had lived together for 52 years before his death. There was evidence that plaintiff had a large amount of money, which was in the care and under the management of her husband. After his death there were found in his box in the safe-deposit vaults four certificates of stock, in an envelope marked, in his own handwriting, “M. A. Guión,” and on the envelope was the following indorsement, signed by him: “50 shares American Express, 50 shares Wells, Fargo, 50 shares Adams, 50 shares Bock Island, standing in my name, which my executors will transfer to M. A. Guión.” The Adams, and Wells, Fargo, Express certificates were issued to “B. L. Guión, in trust for Martha A. Guión.” The American Express certificate was issued to Benjamin L. Guión, trustee, New York. The Chicago & Bock Island stock stood in the name of B. L. Guión, individually. There was evidence that a large part of plaintiff’s money was used by her husband to pay for this American Express Company stock; that the certificates of the American Express and of the Bock Island had both been originally made out in the name of “B. L. Guión, in trust for M. A. Guión,” but the words “for M. A. Guión,” had been erased from the American Express certificate, and the words “in trust for M. A. Guión” from the Bock Island certificate; that the words “in trust for M. A. Guión” had been originally written at the instance of B. L. Guión, but had been erased, because the rules of the companies were such as to make it inconvenient to have stock issued in trust for a specific person; that the dividends on this stock were paid to plaintiff’s husband, and by him deposited to the credit of plaintiff. There was judgment for plaintiff. Defendants appeal.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Smith, Woodward & Buckley, for appellants. Charles N. Judson, for respondent.
   Dykman, J.

This is an action in equity, to procure a judgment declaring certain stock to be the property of the plaintiff. The testimony was taken before a referee appointed for that purpose, with power to take the same and report it to the court, with his opinion. Besides taking the testimony and reporting the same to the court, with his opinion, the referee undertook to make findings of fact and law, and to decide the case against the plaintiff. That was beyond the scope of his authority, and his findings have neither place nor influence in the case. When the case was presented to the judge at special term he found no difficulty in deciding the case in favor of the plaintiff, and'did so by appropriate findings of fact and conclusions of law. Judgment has been entered upon such findings; and the defendants appeal therefrom, and from the order granting an additional allowance to the plaintiff. There is no merit in eithei1-‘appeal. The testimony was abundant to establish the claim of the plaintiff, and left no excuse for the defense of the action. As we fully concur in the opinion rendered by the judge at the special term, it is neither profitable nor necessary to make a lengthy examination or statement of the case here. The judgment and order appealed from should be affirmed, with costs.  