
    Sidney Starbuck, Appellant, v. The Farmers’ Loan and Trust Company and Matilda E. Starbuck, as Executor and Executrix under the Last Will and Testament of William H. Starbuck, Deceased, Respondents.
    
      Bvidence of ownership of an undivided interest in a vessel — a verbal understanding followed-by a written statement and subsequent oral acknowledgments of such owher- ■ ship á/1'e sufficient. '
    A written instrument executed by a ship owner arid addressed, to. his brother, who was in his employ, which states: “In conformity with our verbal understanding, this is to certify that I agree to cany for your afc one-eighth interest . in the new iron sailing ship, to be called the Tillie B. Starbuck, now in course of construction at the yard of Messrs. John Roach & Son, Chester, Penná., at the rate of six per cent per annum, the said one-eighth interest to be transferred to you when paid for,, either from the earnings of said ship or otherwise,” is neither an executed nor an executory Contract, nor is it, in- itself, sufficient to-establish a trust in favor of the brother, as it would- be susceptible of ..the construction that it was either a mere option or an imperfect gift.
    Such instrument, however, when considered in connection with declarations' made '■ by the ship'owner in effect that he was going to build the Tillie B. Starbuckior Sidney Starbuck, Ms brother; that he was going to piit an eighth down for Sidney Starbuck, and that, when the strip paid for it with interest and insurance it would be his, and that he never .allowed any one to own an interest in any of hi's ships, except that his brother Sidney owned an eighth of the Tillie B. Star-buck, tends to show that the ship owner had-a verbal understanding with hie brother by which he had agreed to carry for Mm a one-eighth interest in the vessel to be built, and that thereafter he put in writing this verbal understanding -while the vessel was in course of construction, and after its completion-’ ■'.declared that his brother owned--an eighth interest-in it,-and- is sufficient,:.in the absence of evidence to the contrary, to justify the court in granting to-Sidney Starbuck an accounting on the part of the ship owner, -or his executor’s, for the interest of Sidney Starbuck in the vessel, to the end that it may be determined. whether the earnings of the vessel have realized sufficient .to entitle . Sidney Starbuck tó his one-eighth interest.
    In the event of Sidney Starbuck being entitled to such interest, he can recover in addition thereto any excess of earnings. .
    Appeal by the plaintiff, Sidney Starbuck, from a judgment of the Supreme Court in favor of the defendants, entered- in the office .of the, clerk of the.county of Rew York on the 12th day of November, "189.7, upon the decision of the court rendered- after a trial at ’ t-lie - New York Special Term dismissing -the complaint.
    
      William M. Starbuck, deceased, was in his lifetime a shipowner, and the plaintiff, his brother, was employed in his office. W. H. Starbuck contracted with a firm of ship builders to build a vessel, to be called the Tillie E. 8la/rbv.ck. While the vessel was in course of construction, he expressed his intention to give one-eiglith of it to the plaintiff, which was evidenced by a writing as follows:
    “New York, Dec. 17, 1882.
    “ Mr, Sidney Starbuck,
    “ 17 Broad st., New York:
    “ Dear Sir.—• In conformity with our verbal understanding, this' is to certify that I agree to carry for your ojo one-eighth interest in the- new iron sailing ship, to be called the •Tillie E. SfcM’buc/c, now in course of construction at the'yard of Messrs. John Roach & Son, Chester, Peuna., at the rate of six per cent per annum, the said one-eighth interest to be transferred to you when paid for, either from the earnings of said ship or otherwise.
    “ Yours very truly,
    “W..TI. STARBUCK.”
    W. H. Starbuck died in 1896, and the claim was made upon the executors' by the plaintiff that they should account for the earnings of the ship and transfer one-eighth to him. Upon the trial a witness for the plaintiff testified that W. H. Starbuck said “he was going to build the Tillie E. Starbuch for Sidney; he was going to put an eighth down for Sidney Starbuck and myself, an eighth each, and when the ship paid for it, with interest and insurance, it would be ours.” In addition,, the plaintiff’s counsel offered to prove by a witness “that William H. Starbuck, after the making of this declaration of trust, was talking with one connected with the yard at Chester, Pa., and said that one Captain Baker wanted to buy an interest in the ship Henry Villard, which he owned, and he, Starbuck, said that he had never allowed any one to own an interest in any of his ships, except his brother Sidney owned an eighth of the Tillie E. Starbuch." The defendants’ counsel objected to the evidence as immaterial and irrelevant to the issue. The court sustained the objection, to which the plaintiff’s counsel duly excepted. Thereupon the defendants’ counsel moved to dismiss the complaint, which motion was granted, and from the judgment entered upon such dismissal this appeal is taken.
    
      Esek Cowen, for the appellant.
    
      David McClure, for the respondents.
   O’Brien, J.:

The appellant insists that the writing made by the defendants’ testator was a complete and valid declaration of trust in favor of the plaintiff, his brother, and at once vested in the plaintiff the. equitable title to one-eighth of the ship Tillie E. Starbuck, and to one-eighth of her earnings. The respondents claim that the proofs fail to establish either an explicit declaration of. a trust, or that there was an intention beyond a reasonable doubt to create a trust, or that any. delivery of possession of the corpus of the trust was made.

In Wadd v. Hazelton (137 N. Y. 219) it is said.: “While it is true that no particular form of words is necessary to create a trust of this nature, and while it may be created by parol or in writing, and may be implied from the acts or words of the person creating it, yet it is also true that there must be evidence of such acts done or words used on the part of the creator of the alleged trust- that the intention, to create it arises as a necessary inference therefrom, and is. unequivocal; the implication arising from the evidence must be that the person holds the property as trustee for another. . The acts must be of that character which will admit of no other interpretation than that such legal rights as the settler retains are held by him as trustee for the donee; the settler must either transfer the property to a trustee, or declare that he holds it himself in trust. An intention to give, evidenced by a writing, may be most satisfactorily established, and yet the intended gift may fail because no delivery is proved. And where an intention to give absolutely is-evidenced by a writing which fails because of its non-delivery, the court will not and cannot give effect to an intended absolute gift by-construing it to be a declaration of trust and valid, therefore, without a delivery. * * * Although it may be sometimes a question of intention on the part of .the creator of the alleged trust whether, in fact, he did or did not create it, yet a finding of fact that he did so intend must be based upon some evidence thereof, and there must be some evidence that such an intention was carried out.”

The most important thing to determine, therefore, in this class of cases, is the intention of the person .who makes the writing; and as aids in that direction we may consider the conditions surrounding its making, the nature of the gift, and the disposition of the writing when made. The writing here starts out with the statement that it was given in conformity with a verbal understanding, and was made, to use the language of the testator, “ to certify that I agree to carry for your °jc one-eighth interest in the * * * Ship, to be called the Tillie E. Starbuck, now in course of construction * * the said one-eighth to be transferred to you when paid for, either from the earnings of said ship or otherwise.” That it was not a sale, either complete or executory, the counsel agree. It was not unexecuted sale, for the legal title was. not to pass until the plaintiff’s interest was paid for. It was not an executory sale, for that implies- a mutual promise, and there was no obligation on the plaintiff to buy, nor was there any consideration for an agreement to sell. The respondents contend that it was a conditional contract of sale, without any consideration other than the conditions, which were conditions precedent and have never been fulfilled, and that the transaction at best was a mere option on conditions never performed.

To make out a cause of action, therefore, the. plaintiff was bound to establish a valid trust. If the written declaration stood alone, we do not think it would be sufficient for that purpose, as it would be susceptible of the construction, either that it was a mere option or an imperfect gift; and in Govin v. De Miranda (79 Hun, 286) it was held that equity will not perfect a defective gift made without consideration, and that as to gifts inter vivos ' delivery is essential. On a former appeal of the same case (76 Hun, 414) it was held that the mere signing and acknowledgment of a declaration of trust, without placing the evidence therein in the custody of ano'ther, is insufficient to create a trust. That element, however, has been to some extent supplied in this case, as the declaration was produced at the trial from the possession of the beneficiary, and it was in evidence that he claimed a beneficial interest in certain property thereunder and was its proper custodian ; and under such circumstances, delivery from the maker will be presumed. (Ward v. Lewis, 4 Pick. 518 ; Chandler v. Temple, 4 Cush. 285.) In that respect it differs from either of the above decisions in Govin v. De Miranda.

From the nature of the-interest claimed, namely, an undivided share in a ship, the corpus, was not susceptible of actual delivery ; but we think that at the time the writing was given, assuming the fact therein stated to be true, viz., that the vessel was then in course of construction, it was sufficiently in being to make it the subject either of a transfer, in whole or in part, equitable or legal, or as to which a valid declaration of. trust could have been made. Although, as stated, we must assume that the writing was delivered because produced by the plaintiff, we should not be inclined, if it stood alone,, to regard it as a valid declaration of trust. But if, in addition to the writing, we take the subsequent declaration of the testator that the plaintiff owned-a one-eighth interest in the vessel, which declaration the plaintiff offered to prove, but which was excluded under objection, then we .think that the principles enunciated in another of the many cases growing out .of the litigations between Govin and De Miranda (140 N. T. 474) would be controlling. In that case, upon the death of the testator, there was found in his safe a sealed envelope indorsed “ a declaration in favor -” of the plaintiffs whose-names were given. In the envelope was a paper signed and acknowledged by P., stating, among other things, that there-was in said safe a parcel containing $2-5,000 in bonds of a. certain railroad company, of which $10,000 belonged to a person named, arid the balance to the plaintiffs. The paper closed with this statement: “No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this only for what I may consider proper.” It was-therein held that it was to be inferred from the language of.' the paper, in the absence of any evidence explaining or contradicting it, 'that the plaintiffs were the owners of the bonds-claimed"; that the declaration to that effect was not qualified by the-closing clause, but that it simply meant that the said bonds were-in the possession of P.,. under some agency or possibly a trust, behaving authority to convey them and apply the proceeds consistently with the plaintiffs’ ownership. The fact that in that case the declaration of' ownership was in writing, while here it was by parol, would make no difference, because the property here in question being personal property, the declaration would be equally effective whether resting in writing or in parol.

No point was made, below that the plaintiff offered to prove the declaration, instead of calling the witness, the defendants’ objection being not to the form of the offer, but upon the ground that the evidence'was immaterial and irrelevant. We must assume, therefore, that if objection had been taken to making the offer instead of to examining the witness for the purpose of proving the declaration, this could have been obviated. The respondents, therefore, are not in a position to take advantage of that point upon appeal. Assuming the testimony offered as having been given, a summary of the evidence would tend to prove that the testator had a verbal understanding with his brother, the plaintiff, by which he had agreed to carry for him a one-eighth interest in a vessel to be built, which was designated, and that thereafter he put in writing this verbal understanding while the vessel was in course of construction; and that when it was completed and after it had presumably been earning, he declared that the plaintiff owned a one-eighth interest in that vessel. This, in the absence of evidence to the contrary, would have justified the court in according to him the relief winch he asked, namely, an accounting for his interest in the vessel, to the end that it might be determined whether the earnings of the vessel had realized sufficient to entitle the plaintiff to his one-eighth interest which he could then recover in addition to any excess of earnings.

We think, therefore, that the judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

The action is brought to enforce a trust which was, as alleged in the complaint: That while a vessel named the Tillie E. Starbuck was in process of construction, “ said William H. Starbuck did, on or about the 17th day of December, 1882, in substance and effect, agree and declare that he would and did hold in trust for the" plaintiff a one-eighth share of said vessel; that he would advance and pay for account of plaintiff one-eighth the cost of construction of said vessel, and of the .expenses of and losses of, and charges against, said vessel and owners, and carry the same, and said one-eighth share of said vessel, for account of plaintiff, until such time as such, cost, expenses, losses and charges, with six per cent interest thereon, should be repaid to him out of the earnings of said vessel, or.otherwise, and would thereupon transfer said one-eighth share of said vessel to plaintiff.” To prove this trust a letter was offered in evidence "by the plaintiff, signed by William Ii. Starbuck, the defendants’ testator, which is as follows : In conformity with our verbal understanding, this is to certify that I agree to carry for your cfc one-eighth interest in the new iron sailing ship, to be called the Tillie E. Starbuck, now in course of construction at the yard of Messrs. John Roach & Son, Chester, Penna., at the rate of six per cent per annum, the said one-eighth interest to be transferred to you when paid for, either from the earnings of said ship or otherwise.” This .was objected to upon the ground that its delivery had not been proved, and that it had not been shown that it ever passed from W. H. Starbuck to anybody. That objection was overruled, and the letter was admitted in evidence. There was also evidence that the defendants’ testator made a declaration to a witness that he, the defendants’ testator, “ said he was going to build the Tillie E. Star-buck for Sidney. He was going to put an eighth down for Sidney Starbuck and myself, an eighth each, and when the ship paid for it, with interest and insurance, it would be ours.” The plaintiff also offered to prove by one Bailey that at some time, not named, the defendants’ testator said that one Captain Baker wanted to buy an interest in. a ship owned by Starbuck, but that he, Starbuck, said that he never allowed anyone to own an interest in Ills ships, except that his brother Sidney owned an eighth in the Tillie E. Starbuck.

There was no other evidence to sustain the allegation of the complaint that the defendants’ testator held this ship, or any portion of her, as trustee for the plaintiff, and I think this testimony was entirely insufficient to prove such a trust.

The proof of the trust alleged by the plaintiff depends upon the construction of this letter which was introduced in evidence. That, in form, is a mere agreement to carry for plaintiff’s account an eighth interest in'a sailing ship then in course of construction. It is entirely without consideration. It is unilateral,, there being no obligation on the part of the plaintiff to pay for it. There is no proof that it was ever delivered to the plaintiff, or that it was ever in the plaintiff’s possession. The plaintiff’s counsel offered this . paper in evidence upon the trial, but it appeared in evidence that the plaintiff had been in the employ of the defendants’ testator, and there was no evidence, however slight, of the fact that this paper had been in possession of the plaintiff prior to the death of the defendants’ testator. It is not contended that this is a formal transfer of an eighth interest in the ship. The form of the letter expressly negatives such a construction. It is purely an executory agreement, whereby Starbuck agrees to carry for the plaintiff’s account an eighth interest in the ship, and to transfer such eighth interest to plaintiff when paid for, either from the earnings of the ship or otherwise. An agreement without consideration, purely executory in character, to transfer an interest in a ship to a person when that interest should be paid for, and without any corresponding obligation on behalf of the person with whom the agreement is made to pay for the ship, or to perform any service for it, cannot be enforced. It lacks every element essential to constitute a valid declaration of trust. It does not speak of a completed transaction. It does not certify that the writer at the time held this property for the plaintiff in trust, or that at that time the plaintiff had any interest, either as owner or otherwise, in the ship, but upon its face it agreed to carry an interest in the ship for the plaintiff, and to transfer such interest to the plaintiff when paid for, without any corresponding obligation on the plaintiff to pay for it, or to do anything about it.

What was said in Wadd v. Hazelton (137 N. Y. 219) seems to me to be entirely in point: “ The implication arising from the evidence must be that the person holds the property as trustee for another. The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a trustee or declare that he holds it himself in trust. An intention to give, evidenced by a writing, may be most satisfactorily established, and yet the" intended gift may fail because no delivery is proved. And where an intention to give absolutely is evidenced by a writing which fails because of its non-delivery, the court will riot and cannot give effect to an intended absolute gift by construing it to be a declaration of trust, and valid, therefore, without a delivery.” At most, here is an agreement to transfer an interest, in this ship in the future, made without consideration, where no delivery neither of the ship nor of the -agreement was proved, simply declaring an intention on behalf of the defendants’ testator to at some future time transfer an interest in this ship to the plaintiff. It seems- to me that such a contract is one without consideration and incapable of enforcement, and fails as a declaration of trust in the essential particular that no trust,is created; that no present transfer of the ownership of the ship from the defendants’ testator, as owner, to himself as trustee, is contemplated or declared, and no statement is made that would affect the title of the ship except an executory promise to- carry ■ and convey at a future time.

I think, therefore, that the judgment was clearly right and should be affirmed, with costs.

Judgment reversed, new trial ordered, costs to appellant to abide event:  