Meiggs v. Meiggs , 22 N.Y. Sup. Ct. 453 ( 1878 )

Daniels, J.:

The object of this action was the recovery of certain bonds placed by the defendant, Joseph S. Spinney, in the hands of the defendants, J. B. & J. M. Cornell, tobe held by them in trust for .the children of the plaintiff. These bonds were purchased py Spinney under the authority and direction of the plaintiff, and with the funds of the latter ; but, in support of the action, it has been insisted that the trust concerning .them was wholly unauthorized. In the presentation of the .case other and subordinate points have been discussed, but the point made upon the authority .exercised in the disposition of the bonds, is the controlling one in the controversy ; for if the agent was not empowered to .deliver these bonds so as to create such a trust, then, as they were .previous to that act concededly the .plaintiff’s property, they ■must have still continued so, which will entitle him to- recover in the action ; while if there was such a .delivery.authorized, then he must fail, even though .the trust was .not ..known .to, or accepted by, his children. For the rule .now prevailing is, that a trust, when once absolutely created by the act of .the settlor, will be irrevocable as to him, even though the beneficiaries may have had no notice o,f its existence, though it-might be otherwise where the rights qf creditors intervened. (Perry .on Trusts [2d. ed.], § 105, and cases cited in notes.) The point material to be considered, therefore, is whether there ivas such a delivery of -these bonds in this .instance, or whether the authority under which the act -was performed was not ,so far .qualified as to be subject to the plaintiff’s power of revoking the trust. It has been claimed, in support of the position taken on behalf of the plaintiff'’s minor .children, that as Spinney was his .general .agent, that circumstance should be invoked .to confer greater significance .upon his act. But that .position cannot be allowed to prevail, for the reason .that this act was not within the scope of such .general .agency, even if its existence has been satisfactorily shown. .This business was made the subject of special instructions, in no way connected with the existence of any general authority. They were given by letter, and in such terms as indicated the .existence of .an intention that the agent’s acts .should be governed by the authority so expressed. For that reason the agency was special in its nature, and the exercise of the . authority must accord., in substance, with the terms creating -it. The rule might, perhaps, be differently applied in .cases where the rights .of purchasers for value intervenecl; but as to mere donees, this restriction should be placed upon the act and authority of the agent. (Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 3 Kernan, 599, 632-635.) And in order to sustain the gift in their favor, a complete delivery of the sub- | ject of it must appear in the case. (Doty v. Willson, 47 N. Y., 580.) And to render it complete, the control of the donor over the bonds must be entirely divested. No power can be reserved by him to revoke or annul the act of the delivery, or defeat its effect by making any other or different disposition of the property. Fisher v Hall, 41. N. Y., 416; Bryant v. Bryant, 42 id., 11.) In the cases of Gilchrist v. Stevenson (9 Barb., 9), and Fellows v. Heermans (4 Lansing, 230), and those referred to in the opinions as supporting those decisions, the delivery was complete, and no defect existed or was urged as to the efficiency of the authority under which it was made. For that reason they are in no sense in conflict with the rule already mentioned, requiring that there shall be a complete and valid delivery of the subject of the trust in order to effectively create it. Where that appeal’s not to have been the nature of the act, or where a power of revocation has .been reserved over it, there the trust will not become complete by the mere transfer of the subject of it, but it may afterwards be annulled by the exercise of the power. This rule is particularly applicable to cases of voluntary trusts, and it has in repeated instances been extended so far as to sustain the action of the donor for the recovery of the property, even when the intention to retain the power of revocation had to be gathered from somewhat ambiguous circumstances. The cases sustaining this proposition are quite numerous, and they have many of them been stated and cited in the opinion of the chancellor of New Jersey, hi deciding the case of Gamsey v. Munday (24 N. J. Eq. R., 243), which, of itself, is an instructive authority upon this subject. (See, also, Geary v. Page, 9 Bosw., 290.)

When these bonds were purchased and placed in the hands of the defendants, Cornell, the plaintiff was engaged in the construction of railways in the Republic of Peru. His situation was such as to create apprehension concerning his future pecuniary condition. That depended upon his ability to realize the money becoming due to him in the course of these enterprises. It was in so uncer. tain a condition as to be the source of anxiety, and in this condition he became impressed with the necessity of doing something for the protection and future support of his minor children, in case his affairs should be affected by disaster, as he feared they might be. Actuated by that purpose, on the 15th of February, 1873, he wrote three letters from Lima, in Peru; two of which were addressed to, and received by the defendant Spinney. In one of them he directed the recipient, “on receipt of this please purchase $100,000 U. S. bonds of six per cent interest, and hand them to Messrs. J. B. & J. M. Cornell, charging the same in general account to me, and oblige,” etc. In the letter to the defendants Cornell, he stated that, “under this date I have taken the liberty to ask Mr. Spinney to purchase $100,000 U. S. bonds for my account, and deposit them in your hands, please receive them, and this time I promise you they will not be drawn from you except by me in person, or my heirs. If this shall cause you any inconvenience, don’t hesitate to say so to Mr. Spinney, and refuse to receive them. If it shall cause you no inconvenience, please receipt for them in name of firm, and oblige,” etc. Under the same date of February 5th, 1873, the plaintiff wrote the other letter to the defendant Spinney, marked “private,” in which he stated that, “things look a little dusty here owing to a fight between the government and Dreyfus, by which the loan is for the moment postponed, and to prepare myself for the worst, I have used my power of attorney to ask you to purchase $100,000 U. S. bonds for the cubs, if things come to a regular break,” etc. On the 5th of March, 1873, he wrote another letter to the defendant Spinney, in which ho made the remark that for the present he had only to confirm the letters of February 5th and 13th, and if possible strengthen those instructions.

It was clearly the nature of these instructions that the title to the bonds should not be irrevocably placed beyond the plaintiff’s control. At most, he intended only to provide against a disastrous contingency, which might be encountered by his financial affairs on account of the uncertain condition of the public credit of the local government. That is evinced all through this corre- ' spondencc; for in his letter to the defendants Cornell, he does not request that they should receive these bonds solely upon a trust for his children, but merely and only .that they should be deposited in their hands, -not to be drawn from them unless that w.as ..done by himself or his heirs. These terms explicitly rendered the .deppsit subject to the exercise of the plaintiff’s authority over fit subsequently. That the bonds were not ;;to be drawn from the .depositees, except ¡by himself or his heirs, was-a circumstance-that carried with-it,a very decided .implication-that they .might be so .drawn by him; .and there was nothing -in -the .letters, -written at .the same time to Spinney, inconsistent with the existence of .this authority. -In one -he merely idirected 'him to hand the bonds, when.purchased, to ¡J. B. & J. M. .Cornell, without indicating, fin -any way, ;for whom or .on what terms they should hold -thorn; while, .in the other, fit was stated that -they were for the cubs, by which he intended to .designate his children, “if things came to a .•regular break,” which .was in -perfect harmony with the reservation of -the power over the bonds reserved -by him in -his letters ,to -the -Cornells.

It was under this qualified-authority that the'bonds were purchased and .deposited; but that was not in form preserved by -the terms of the receipt given for the deposit; which was made on •the 16th,of April, 1873. Nor in the receipt, in which it was stated that .the one hundred thousand dollars of-bonds deposited were-to be held .in-trust for .the- children of ¡the plaintiff. This was not conformable ¡to his-instructions, -and so far as itfailed-in that respect the ¡deposit was without authority; and -that it was not afterwards .designed ¡to be confirmed by the plaintiff has been shown by his letter pf May -13, 1873, written to the defendant Spinney; for in that he stated-that he had instructed ‘ ‘ .the Messrs. -Cornell to change to.registered ¡bonds in their name in trust for me.” At that time his financial prospects had undergone a decided improvement, ,and lie doomed ihimself safe in then exercising the power he had previously reserved -over this .deposit, and by f his letter made .use ,of that .authority»

•It -has been urged that -he could -not do this, because -he had been informed by a letter from 'Spinney, written on the fOth of March, that a portion of the -bonds had been secured .and were held-by the writer in-trust for the children, and that his omission to object to that disposition -of them ratified their ¡appropriation in that way. But that inference cannot properly be deduced from this information, and the omission of the plaintiff to object to the creation of such a trust; for in a general sense the bonds were to be held in trust for the children ; but it was, at the same time,- intended to be subordinated to the plaintiff’s- power of revocation, and it was not stated in the letter, that this power was not intended to be preserved. There was an entire absence of any allusion to that subject, and from the omission to object to the terms stated under such circumstances, no confirmation of such a trust could properly, be inferred. On the contrary, the presumption from the letter would be that the bonds were held in trust for the children, in the manner he had instructed that to bo done, and that was subject to his future power of revocation. The letter, of May-13th, by which the change was directed, indicates, that the intention, designed to be embodied in this trustin the outset, had never been changed or abandoned, and there is nothing in the case supporting any different view of these transactions, for a ratification of the unauthorized act of an agent can only be inferred from the omission of the principal to object after he has received full knowledge of the act to be ratified, and no such knowledge was communicated in this case, because ■ it was nowhere intimated that ’the trust for his children had not been rendered subordinate to his -power of drawing the bonds from the hands of the trustee, as his Tetters show that-it was designed to be.

The fact that this disposition of his property may not have been consistent with a proper regard for the rights of the plaintiff’s creditors, is not important in this controversy, for' the bonds are not sought to be held in anyway on their-'account; but simply forth® beneficiaries nominated under the trust; and: as -the trustees cannot hold the bonds for them against the-rightTssertéd by-the plaintiff, the judgment recovered' in his- favor ought to be affirmed.

Ingalls, P. J., and Pottee, J., concurred.

Judgment affirmed.