Citation Numbers: 31 N.Y.S. 620, 90 N.Y. Sup. Ct. 243
Judges: Dykman
Filed Date: 12/10/1894
Status: Precedential
Modified Date: 1/13/2023
These are appeals from the judgments entered in the above-entitled actions upon the report of a referee dismissing the complaint of the plaintiff in each case, with costs, and also from three orders granting an extra allowance to the defendants. The complaint in each case alleges that the testator of the defendant Benjamin L. Guión had in his possession large sums of money, upward of $10,000 in the M. A. Guión case, and upward of $1,000 in the Hildrick case; that Guión died, leaving such trust incomplete and unperformed; that the plaintiff had been appointed trustee in the place and stead of B. L. Guión by order of the supreme court,—and prayed that the defendants, as executors of Guión, account for the trust funds held by him during his lifetime, and pay the same to the plaintiff. The answer in both cases contains a general denial, and alleges payment of all moneys and property in Guion’s hands as a part of the alleged trust, and also that the plaintiff is not the real party in interest. The answer also sets up the six-years statute of limitations in both cases, and the ten-years statute in the M. A. Guión case. Gn the trial in the M. A. Guión case it was proved by the plaintiff that B. L. Guión opened an account in the Manhattan Savings Institution on the 5th day of June, 1867, in form B. L. Guión for M. A Guión, and made various deposits therein, amounting in all, with interest, to $9,395.27; that Guión drew out of said account all of said moneys in different amounts on different days; and the plaintiff claims the whole amount of the account, with interest on the amount of each draft from the date thereof. The plaintiff further proved that B. L. Guión opened an account in the East River Savings Institution on the 4th day of January, 1870, in form B. L. Guión in trust for M. A. Guión, and made various deposits therein; that such account was closed on the 2d day of April, 1877, and the balance of the account, amounting to $19.29, was transferred to a new account opened by B. L. Guión on that day in the same bank, in form B. L. Guión in trust for M. A. .Guión; that Guión drew out of those foregoing accounts the sum of $23,111.78 in different amounts on different days; and the plaintiff claims the whole of those amounts, with interest. The plaintiff further proved that B. L. Guión opened an account in the Dry Dock Savings Institution on the 3d day of April, 1877, in form B. L. Guión in trust for M. A. Guión, and made various deposits therein; that Guión drew out from that account the sum of $6,056.02 in different amounts on different days; and plaintiff claims the whole, of those amounts. On the 16th day of July, 1883, B. L. Guión opened an account in the New York Bank, in the form of B. L. Guión in trust for M. A. Guión, and made deposits therein to the amount of $2,597.04,. no part of which was withdrawn by him. The plaintiff further proved that Guión had collected dividends on stocks which he held
In the case of Martin v. Funk, 75 N. Y. 134, it was decided by the court of appeals that such a deposit, unexplained, constituted a trust; but in the same case it was said:
“It is not necessary to decide that surrounding circumstances may not be shown to vary or explain the apparent character of the acts, and the intent with which they were done.”
In the subsequent case of Mabie v. Bailey, 95 N. Y. 206, Judge Andrews says, in delivering the opinion of the court of appeals:
“The court in Martin v. Funk left undecided the point whether, in respect to such a transaction, surrounding circumstances may not be shown to vary*623 or explain the apparent character of the acts, and the intent with which they were done. If it was now necessary to decide that point, I should incline to the opinion that the character of such a transaction, as creating a trust, is not conclusively established by the mere fact of the deposit, so as to preclude evidence of contemporaneous facts and circumstances constituting the res gestae, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose, inconsistent with the intention to divest himself of the beneficial ownership of the fund.”
While, therefore, the opening of the account by Guión in the different banks in the names he did constitutes a trust without explanation, it becomes necessary to ascertain whether the facts and circumstances surrounding the transaction disclose a motive on the part of Guión to create a trust in favor of the several persons named in the bank books as beneficiaries, or whether his real motive was to accomplish an independent and different purpose, inconsistent with the intention to divest himself of the ownership of the property. A preliminary statement of certain facts and circumstances will conduce to a better understanding of the situation: B. L. Guión died in March, 1887, leaving a last will and testament, and the defendants in these actions qualified as executors thereof. In June, 1887, the executors opened the safe of Guión in the Stuyvesant Safe-Deposit Company, and, among other property found there, there were eighteen savings-bank books,—one in the name of B. L. Guión personally; two, Mrs. J. D. Hildrick; four, Mrs. J. D. Hildrick, in form “in trust for her two children, Alfred E. and Elenor Hildrick”; two, B. L. Guión, in form in trust for M. A. Guión; three, B. L. Guión, in form in trust for A. E. Hildrick; three, B. L. Guión, in form in trust for E. Hildrick; one, B. L. Guión, in form in trust for H. Hunt; one, B. L. Guión, in form in trust for Mary G. Hunt; one, B. L. Guión, in form in trust for Isaac M. Hunt. Mrs. Guión took possession of the two books in form in trust for herself, Mrs. Hildrick took possession of the twelve books in her own name individually, or in form in trust for her children, and Isaac M. Hunt took the books in form in trust for himself and Mary G. Hunt and H. Hunt, who were his sisters. Benjamin L. Guión, the defendant’s testator, died in March, 1887, at the age of 82 years. For upward of 20 years before his death he had not been engaged in business other than investing and taking care of his money, and stock speculations. He lived on the income of his money without any business. He deposited his money in savings banks, in almost all cases in form in trust for other persons related to him-by blood or marriage. At least 27 of the accounts opened by Guión in form in trust were so opened without the knowledge or consent of the persons whose name Guión used, and the moneys belonged to Guión in each case. He treated the accounts absolutely as his own, withdrawing funds from each account, and making new deposits therein from time to time, and in most cases closing the accounts. The persons whose names Guión used never saw or heard of the accounts until after his death, and some of them not until the books were offered in evidence on the trial. The total amount of deposits made by Guión, with interest, amounts to upwards of $80,000 in the accounts in form in trust, and only $26,000 in his personal account.
“We cannot close our eyes to the well-known practice of persons depositing in savings banks to the credit of real or fictitious persons. It is attributable to various reasons connected with taxation, rules of the bank limiting the -amount which any one individual may keep on deposit, the desire to obtain higher rates of interest where there is discrimination based on the amount •of deposits, and the desire on the part of many persons to veil or conceal from others knowledge of their pecuniary condition. In most cases where a ■deposit of this character is made as a gift there are contemporaneous facts or subsequent declarations by which the intention can be established independent of the form of the deposit. We are inclined to think that to infer a gift from- the form of the deposit alone would in the great majority of cases, -especially where the deposit was of any considerable amount, impute an intention which never existed, and defeat the real purpose of the depositor.”
The foregoing remarks are peculiarly applicable to this case, and in -our view the facts and circumstances disclosed repel the presump