Conn. River Savings Bank v. Albee

The opinion of the court was delivered by

THOMPSON, J.

1. A completed trust, although voluntary,, is valid and may be enforced in equity. It is not essential to its validity that the beneficiary should have had notice of its creation *575 or have assented to it. The owner and donor of personal property may create a perfect, or complete trust, by his unequivocal declaration in writing or by parol, that he himself holds such property in trust for the purposes named. The trust is equally valid whether he constitutes himself, or another person, the trustee. “ He need not in express terms declare himself trustee, but he must do something equivalent to it, and use expressions which have that meaning.” The act creating the trust must be consummated and not rest in mere intention. “ It must appear from written or oral declarations, from the nature of the transaction, the relation o'f the parties and the purpose of the gift, that the fiduciary relation is completely established.” This is the rule whether the donor makes himself or another person the-trustee. If he constitutes himself trustee it is not necessary as' between himself and the beneficiary, that he should part with the possession of the trust property.' “ If the donor retains the legal title but effectually declares himself a trustee for the donee, thus clothing the donee with the beneficial estate, the gift is valid although voluntary; the donee’s rights are perfect and equity will enforce them against the donor, and all persons claiming under him as volunteers.” The trust once created cannot be revoked by the donor, unless the power of revocation is reserved by the donor, when he created it. “A voluntary trust which is still executory, incomplete, imperfect or promissory, will neither be-enforced nor aided.” “If the intention is to make such a transfer as would constitute a gift, but the transaction is imperfect for this purpose, the court will not hold the intended transfer to-operate as a declaration of trust; ‘for then every imperfect instrument would be made effectual by being converted into a perfect trust.’ ”

Such is the general doctrine in regard to voluntary trusts as-laid down by elementary writers on the subject, and as enunciated by the courts in the best considered and leading cases in which it has been discussed. 2 Pomeroy’s Eq. Juris. (1st Ed..) ss. *576 996, 997, 998; Perry Tr. (1st Ed.) ss. 96, 97, 98, 99, 104, 105; Adams’ Eq. (6th Am. Ed.) 194; ex parte Pye, 18 Ves., Jr., 149; Milroy v. Lord, 4 De G., F. &. J. 264; Kekewich v. Manning, 1 De G., M. & G. 176; Ellison v. Ellison, 1 Lead. Cas. Eq. (3d Am. Ed.) 297 and notes; Richards v. Delbridge, L. R. 18 Eq. 11; Heartley v. Nicholson, L. R. 19 Eq. 233; S. C. 11 Eng. Repts. (Moak’s notes) 816; Jones v. Lock, L. R. 1 Ch. 25; Martin v. Funk, 75 N. Y. 134; S. C. 31 Am. Rep. 446; Young v. Young, 80 N. Y. 422, S. C. 36 Am. Rep. 634; Est. of Webb, 49 Cal. 541; Stone v. Hackett, 12 Gray 227; Urann v. Coates, 109 Mass. 581; Gerrish v. Bank, 128 Mass. 159; Ray v. Simmons, 11 R. I. 266, S. C. 23 Am. Rep. 44 and note; Minor v. Rogers, 40 Conn. 512; S. C. 16 Am. Rep. 69; Taylor v. Henry, 48 Md. 550, S. C. 30 Am. Repts 486; In re Gaffney’s Est. 146 Pa. 49 (23 Atl. Rep. 163); Pope v. Bank, 56 Vt. 284; Sargent v. Baldwin, 60 Vt. 17.

These are only a few of the many cases bearing upon this subject, but they sufficiently illustrate it. A large number are collected in note 1 to Sec. 997 of Pom. Eq. Juris. (1st Ed.).

In the case at bar, Samuel Albee deposited in the Connecticut River Savings Bank $1,600 in the name of his son, the defendant, Charles P. Albee, naming himself trustee. The treasurer of the bank at the same time delivered to Samuel Albee a deposit book, on the outside cover of which was the entry; “No. 5362. Charles P. Albee, of Rockingham, Yt., in acct. with Conn. River Savings Bank,” and in the book is this entry; “ Conn. River Savings Bank in acct. with Charles P. Albee (Samuel Albee, trustee).” “Dec. 12, 1878, deposit, $1,600.” .This book was retained by Samuel Albee until his death. While he held this book and after the first deposit he made one deposit to this account, and on several occasions drew various sums of money from it, receipting therefor as trustee. In form at least, this transaction created a voluntary trust in favor of Charles P. Albee. by Samuel Albee, in which the latter • constituted and declared *577 himself to be the trustee. The fact that he stated that he made the transfer to avoid taxation does not negate the idea that he also intended to create a trust for the .benefit of Charles P., but on the contrary it is perfectly consistent with that purpose. The retention of the book is not inconsistent with this construction. If there was a trust, he must be deemed to have retained it as trustee. In Martin v. Funk, supra, it is said: “ There are many cases where the instrument creating the trust has been retained by the author until his death, especially #liere he made himself the trustee, and yet the trust sustained.” Such fact, among others, has been considered on the question of intent, in those courts which hold the creation of the trust to be one of intent on the part of the alleged don|or, although he may have made the deposit in the name of the alleged donee, but it is never deemed decisive against the validity of the trust.

If the intent with which Samuel Albee made this deposit were to be held to be decisive of the rights of the parties to this litigation, what other intent, on the facts found from admissible evidence, can be imputed to him, than such as his acts at that time imported ? He directed the bank to make the deposit in the manner and form it did, and he took the deposit book, the voucher, to himself in trust for Charles P. Albee. There was no contingency or uncertainty in the circumstances,and the transaction was complete. The money was deposited absolutely and unqualifiedly in trust, and Samuel Albee himself was the trustee. So far as is disclosed by legal evidence, he never said nor did anything thereafter, inconsistent with that transaction, viewed on the theory that such a trust was intended to be created by him. The fact that he deposited other money to this account, and as trustee drew money from it, is perfectly consistent with his being trustee.

¥e think there was a perfect, completed, voluntary trust created by this transaction. Martin v. Funk, Ray v. Simmons, Minor v. Rogers, In re Gaffney’s Est., supra, and other authorities there cited.

*578 But we are not left to infer the intention of Samuel Albee from the transaction of making the deposit, for very near and after that occurrence, he declared that he made the deposit for the benefit of Charles P. We think a fair construction of the master’s original report is that he finds such was his intention. This establishes the trust, if it were to be determined by the law of New Hampshire as found by the master, and stated in Blasdel v. Locke, 52 N. H. 238, and Marcy v. Amazeen, 61 N. H. 131, or in accordance with certain Massachusetts cases cited on defendant Lane’s brief, Pt. 5.

The case of Pope v. Bank, 56 Vt. 284, is distinguishable from this case. In that case, there was no declaration of trust, but an imperfect gift. The intestate retained in himself the absolute control and disposal of the deposit, for his own use and benefit, making it payable to himself by the terms of the deposit.

2. The testimony of the witnesses, Ruth McQuaid, Simon Albee and Harriett Albee, as to the declarations of the intestate in respect to the deposit, and made after the trust had been created, were not admissible. “ No such declarations made after the creation of the trust could have any legitimate effect upon it.” Ray v. Simmons, supra; Mutual Ins. Co. v. Deale, 18 Md. 26, S. C. 79 Am. Dec. 673; Minor v. Rogers, supra; Bullard v. Billings, 2 Vt. 309; Brackett v. Wait, 6 Vt. 411; Edgell v. Bennett, 7 Vt. 534; Sargeant v. Sargeant, 18 Vt. 371; Hough v. Barton, 20 Vt. 455; Leland v. Farnham, 25 Vt. 553; Washburn v. Ramsdell, 17 Vt. 299; Hayward Rubber Co. v. Duncklee, 30 Vt. 29; Halloran v. Whitcomb, 43 Vt. 306; Ross v. White, 60 Vt. 558; Sargent v. Baldwin, 60 Vt. 17.

As before stated when a voluntary trust is once created, it cannot be annulled by the act or declarations of the party creating it, unless a power of revocation is reserved for that purpose. See Sargent v. Baldwin, supra, and cases there cited. No. such power was reserved by Samuel Albee.

*579 3. The testimony of Charles S. Albee in respect to the declarations of Samuel Albee as to his intent in making the deposit, and the reason that moved him to do it, was properly admitted. “The declarations of a trustee can be given in evidence to show how he held the estate ; that is in those states where the trust may be proved by parol.” Perry Tr. (1st Ed.) s. 77; s. 147. “The declarations of deceased persons made against their interest or right, are admissible against those who claim in the interest or right of such deaceased persons.” Wheeler v. Wheeler's Est., 47 Vt. 637, 645; 2 Saund. Pl. & Ev. 557; Ivat v. Finch, 141 Taunt, 1; 1 Greenl. Ev. (12th Ed.) s. 189.

The decree of the Court of Chancery is affirmed and cause remanded.