#### Ardil R. Mersereau and Pauline B. Mersereau, Individually and as Administrators, etc., of George B. Mersereau, Deceased, Appellants, v. James E. Bennet and Clarence Schenck, Respondents.

First Department,

February 21, 1908.

Trust — instrument in form of power of attorney creating trust — form of instrument immaterial — accounting."

Prior to his death a person owning real and-personal property executed an instrument in the form of a power of attorney stated to be made for the purpose of relieving the principal from worry and care concerning his financial interests. It was provided in substance that the attorney was to hold, invest and distribute certain personal property delivered to him and to sell the same if necessary for the interest of the principal. . He was also authorized to take charge of real estate (which, however, was not conveyed to him), with power to lease,collect rents, sell and invest the proceeds for the benefit of fhe principal and his children, weekly sums to be paid over to each. In the event of the princi-. pal’s death with the power unrevoked his children were given an undivided interest in the moneys in the attorney’s hands. 1

*Held,*that notwithstanding the form of the instrument the so-called attorney became a trustee of property received by him, including the proceeds of sales of land, and was liable to account to the children of the so-called principal who died without revoking the instrument.

The fact that an instrument contains a power of revocation does not prevent the creation of a trust.

Ho particular words are necessary to create a trust. The intention of the creator controls, and where he gives to the person to whom he delivers possession of property power to sell and receive the proceeds, to invest the_ same and to exercise the usual acts of ownership, with specific directions as to how the property and its income are to be disposed of, a trust is created even though the trustee is designated an attorney. '

Although the actual delivery of a fund or other property or a legal assignment thereof to a trustee with an intention.of passing title to him as trustee is one of the essentials of a valid trust, a delivery of personal property to another with such muniments of title as enable him to sell it, with power to sell, receive and apply the proceeds as directed in the instrument, is a transfer of the property sufficient to create a trust.

As the instrument aforesaid required the trustee to .deliver the property to the creator’s children on his death, it was not revoked by death, and the" children in their individual capacity may require the trustee to account.

Houghton, J., dissented.

Appeal by the plaintiffs, Ardil R. Mersereau and another, "individually and as administrators, etc,, from a judgment • of the *414Supreme Court in favor, of the defendants, entered in the office of the clerk of the county of New York on the 22d day of June,.1907, upon an order made at the New York Special Term dismissing the complaint at the opening of the trial.

*Coleridge A. Hart [Benjamin 11. Newell*with him on the brief], for the appellants. v

*J. Ard.*Haughwout, for. the respondent Schenclc.

*Frederick W. Block,*for the respondent Bennet,

Ingraham, J.:

This action • was in equity to require the defendant Bennet to account for the sum of $5,000 received by him as attorney and trustee under an agreement, a copy of which is annexed to the complaint. The defendants answering the complaint, the action- came on for trial at Special Term, when the defendants at the opening of-the trial moved to dismiss the complaint, Which.motion the court granted, and an order Was entered reciting these facts arid' ordering that the cohiplaint be dismissed,, and -upon that, order a judgment was entered from which the plaintiffs appeal. - .

The-complaint alleges that one George -B. Mersereau, made; exe-. cuted and delivered to the defendant Bennet a cértairi instrument in writing, a copy of which is annexed to the. complaint.; that the defendant Bennet accepted the trust and. assumed the duties and obligations of ■ an attorney and trustee under sa-id. agreement, and. that in pursuance thereof the said George B. Mersereau duly delivered to the defendant Bennet certain personal propérty and money set forth' in -the complaint.; that subsequently Bennet, acting as attorney and.trustee, sold certain real estate the property of Merséreáu, and as such attorney and trustee, pursuant to the terms of said instrument, received the proceeds of such -sale; that on the 19th : of February, 1905, said George B. Mersereau died intestate, leaving the plaintiffs his only heirs at law ..arid next of kin, and, subsequently and on the 23d of March, 1905,.lett-ers..of administration duly issued to the plaintiffs, who thereupon duly qualified as such'administrátórs; that the plaintiffs individually and as administrators have demanded of defendant Bérinet that he account, as attorney and trustee for the money and other property received by him, and that he has *415accounted for part of such money and property, but has failed and. neglected- to account for the sum of $5,000 received by him thereunder; that in gross violation of his duties as such attorney and trustee said Bennet loaned the sum of $5,000 to the defendant Schenclc, who made and delivered to the defendant Bennet two promissory notes in the sum of $2,000 and $3,000, respectively, therefor; that said Schenclc received the $5,000 with knowledge that it was money belonging to the said George B. Mersereau, and was held by said Bennet pursuant to the terms of and subject to the conditions imposed in said instrument, and that at the maturity thereof said notes were duly presented for payment and have not been paid; that there is now due and owing plaintiffs from the defendant Bennet, as such attorney and trustee as aforesaid, the sum of $5,000 with interest thereon from the 27th day of January, 1905, no part of which has been paid. The instrument annexed to the complaint commences as follows: *“*Know all men by these presents, that I, George B. Mersereau, for the purpose of relieving myself of all worry or care concerning my financial interests, have made, constituted and appointed, and by these presents do make, constitute and appoint James E. Bennet, now living at Ko. 21 West 101st street, my lawful attorney, to hold, conserve and distribute for me my moneys, stocks, bonds and other personal property, and I hereby deliver to him as my attorney the following personal property,” with a description of certain stock and a sum of money, and then proceeds : *“*I authorize my said attorney to sell any and all of the above-mentioned stocks and property if he deem it necessary to my best interests, and I hereby constitute and appoint him my true and lawful attorney to sign my name, receive for me the moneys and receipt for same and perform for me and in my stead any and all acts necessary to accomplish the sale and transfer of said stocks and property; and to invest all and any monéys which he holds for me as my attorney as he may deem best for my interests.” The said attorney was then authorized to take charge of certain real property of the said George B. Mersereau, with power to lease the same; to collect rents and receipt therefor; to pay from the funds in his hands as such attorney all taxes, insurance and interest upon mortgages now and which may hereafter be upon the said property ; tr, make repairs and pay for the same; to settle, adjust and *416collect all insurance, which may become due because of any damage . or, loss to. the: said property; to make efforts to sell .the said real property, and in the event of a sale thereof '.the sums of money received from the sale thereof after payment of all liens and other charges “ shall be held by said James B. Bennet as my attorney for myself, and in the event of my death, for my children A. Raymond Mersereau and Pauline B. Mersereau; and in the event of- my death before this power of attorney is .revoked, I hereby give and grant to each of my said children A. Raymond Mersereau and .Pauline B. Mersereau an undivided one-half interest in the moneys in my said attorney’s hands at my death, and in any other-property of which I may die possessed, and in the event of the death of any one of ús,.his or her share shall be divided between those .surviving.” . Bennet. was-then-authorized to pay out of the property so. delivered to him “on the Saturday.of each week, commencing with the, Saturday next after the delivery to my said attorney qf all the property herein mentioned, to wit: To myself, George -B.. Mersereau, $12.00; to, my s,on, A-. Raymond .Mersereau, $12.00; to my daughter, Pauline B. Mersereau, $12.00.” Bennet -was further .directed, to render,to. George B. Mersereau an ' itemized account of his receipts and disbursements at-least once ,in .three months, and his said attorney was authorized and directed .to retain -as. and for his compensar tion five per . centum annually upon all moneys which he holds, receives and:disburses as his.said attorney, .provided.that such commission shall.not exceed $100 in any one year;, that.Bennet.should have full power and authority to carry on.t all the provisions of the instrument, and should have full.and complete. control- over ah property and funds intrusted to him. The defendant Bennet admits that this instrument was executed, and delivered to him; admits that he received the money described in .the instrument and. the proceeds of the real.property, and alleges that.lie accounted pn, f.ull for the.sum. of $5,000.inentioned in the complaint, ’ ... ;

Thq learned judge held that this instrument was in the nature pf a testamentary disposition of property, and was invalid as not being-executed in conformity with the requirements of the. Statute, of Wills.;* that it was ineffectual as .a trust for,the- benefit of Men-.*417sereau’s children, since he retained absolute-control of his property and no estate was vested in the defendant Bennet; that upon Mersereau’s death, viewing it as a mere power of attorney, it was revoked and his personal representatives .became entitled to possession and an accounting of the property remaining in the hands of ■ the defendant Bennet; that the complaint is insufficient to give a cause of - action to the plaintiffs as administrators, as the complaint admits that- Bennet has accounted for all the property except the sum of $5,000, which he had loaned to.his codefendant Schenek upon the latter’s promissory notes; that these allegations taken together amount in effect to an admission that there, was an account, stated, and as these facts appeared from the complaint it failed to show a cause of action ; that as the instrument authorized Bennet to invest all and any moneys held for his principal as he may deem best foi’ his principal’s interest, the fact that he invested the money in a loan to the defendant Sclienck was binding upon the plaintiffs in the absence of an allegation that it was negligently made, or that. the borrower was insolvent at the time; and that the .allegation, in the complaint that the loan was *“*in gross violation, of his duties as. such attorney and trustee under said instrument” was a mere conclusion of law. . .

The first question is as to whether in relation to this .property transferred to Bennet under this agreement, including the proceeds,.of the real property which was received by Bennet, he became a ■ trustee for Mersereau under the agreement. It must be .conceded, that the rights and obligations created by this instrument are not at all clear, but I am inclined,to think that' as to the. property and the proceeds thereof a valid trust was created. The property which. Bennet was to receive related solely to personalty, as it was clear that he had no title to the real property mentioned, having.a mere power to collect the rents; but the proceeds of the real property, when sold, were to be held by Bennet as Mersereau’.s attorney. The title to all this property, including the proceeds of the real property, was to be received by Bennet, and he was to hold, conserve and distribute the same; he had power to sell the property and to receive the proceeds thereof, and to invest all and any moneys which he held as Mersereau’s attorney as he might deem best for Merse*418réau’s interest; from the moneys in his.hand's he was to .pay Mersereau’s just debts and obligations, and in addition was to pay' on the Saturday of each week a sum of money to Mersereau and to his two children'; and in the event "of - Mersereau’s death he was to hold the proceeds of this property for Mersereau’s two children, to whom Mersereau gave an undivided one half interest in’ the money or property in Bennet’s hands at his'death. There was here vested ' in Bennet the power of. a trustee in relation to the property, and he was authorized to exercise all acts of ownership in relation to it. The fact that Mersereau retained.a power to revoke the instrument does not at all mitigate against the creation of a trust. It is well settled that no particular terms aré necessary to creaté a trust. The intention of the creator of the trust is to ■' Control, and where he gives to' the person to whom he delivers possession of the property power to sell it and receive the proceeds, power to invest such proceeds and power to exercise the usual acts of ownership, with specific directions as to how the property and its income is to be disposed of, I can see no'reason why a trust is not created and that 'cer-' : tainl-y is not negatived because of the fact that technical terms used to transfer title are not used, or the trustee is designated an attorney' rather than trustee. The stated object of the-execution of this instrument was to relieve George B. Merseréau. of all worry or Care concerning his financial-interests, and to accomplish that he delivered to Bennet as his attorney ■ this personal property. In *Van Cott*v. *Prentice*(104 N. Y. 45) there is an exhaustive discussion of what is necessary to create a valid trust, and it was held' that the - fact that a-trust was. voluntary and without consideration, with a full power of revocation reserved and with a reservation of control over the property during the life -of the creator of the trust, and that there was denied to the beneficiaries any legal or equitable right to either principal or interest, was not inconsistent with the creation of a- valid trust. The only distinction between that case and this'..is that in this case the instrument does not' in express terms convey ' title of the trust property to the trusted. The designation of Bennet as .attorney rather than as trustee .is. not at all material. ' In *Jordan*v. *Underhill*(91 App. Div. 124) the defendant acted under a power of attorney, and the court held, that'the relations were those of trustee and *cestui■ que trust.*See, also, *Underhill*v. Jordan, 72 App. *419Div. 71, and *Day*v. Roth, 18 N. Y. 448, where it is said: “ But a formal or even, a written agreement is not necessary to create a trust in money or personal estate. Any declaration, however informal, evincing the intention with sufficient clearness, will have that effect. Such declarations stand on somewhat peculiar grounds. ** * **It may be conceded, therefore, that the case does not show for what purpose, or under what agreement Y. W. Both received the £1,500, and brought it to this country. It is admitted that he was in some way and in some character accountable .to her for the money. His letter which has been referred to, together with the power of attorney which he procured the plaintiff to sign, and which he accepted from her, are sufficient of themselves to constitute the alleged trust. * * * It contained a request that the plaintiff should appoint him to he her agent for investment; and she, accepting the declaration and granting the request, gave him'a written power -to take the charge of the fund. He accepted the power and, so far as we know, acted upon it.” ■ In *Von Hesse*v. *MacKaye*(136 N. Y. 114) there Was no express transfer of title but a delivery of certain railroad bonds for which the person to- whom they were delivered gave a receipt: “ Beceived of my father, James líaclíaye, ten Kansas Pacific bonds of one thousand dollars each, to be held by me in trust for his adopted daughter,” and it was held that a valid trust was created. As stated in *Brown*v. *Spohr*(180 N. Y. 201): *“*There are four essential elements of a valid trust of personal property: (1) A designated beneficiary; (2) a designated trustee, who must not be the beneficiary; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and (4) the actual delivery of the fund or other property,-or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to him as trustee.” The only One of these elements which does. not expressly appear in this instrument is that there is no express transfer of title of the trust property to the trustee. Certain securities are recited in the instrument as having been *“*delivered ” to Bennet, and Bennet admits their receipt. Certain real property of the creator of this trust was sold and the proceeds thereof received by Bennet to be disposed of as provided in the instrument. Certainly in regard to the money paid to Bennet or received by him under the agreement a trust existed, *420and it seems to me that, delivery of personal property with such muniments of title as enabled- him .to sell it with express power to sell and receive and apply the- proceeds as directed -in the instrument, is a valid transfer of property by which the title vests in the trustee and fomwhich the trustee is bound to account. This must have been the intent of the signer of this instrument. He clearly intended that Bennet should receive and hold these securities and moneys; that Bennet'should sell the securities if- he considered it proper and receive the proceeds; that the proceeds of the real property described should be received by Bennet and held by him under the provisions of the instrument; and that Bennet should hold this property and exercise these powers so long as the instrument itself was unrevoked. Had Mersereau revoked this instrument there is no question but tliat he would ■ have been entitled to have compelled Bennet to account for the property received under it and that in such an accounting Bennet would be entitled to offset all sums of money that he had paid under the instrument. And if this is so it seems to follow that upon the death of Mersereau leaving the instrument unrevoked, Bennet held in his possession the property delivered to him subject to the terms of the instrument under which he received and held it. To say that the instrument was revoked by the death of Mersereau seems to me to directly contradict its express terms. Bennet received the property under the instrument which -contemplated, a disposition of the property by Bennet upon the death of Mersereau, It was not a power of attorney solely to be executed, during' Mersereau’s lifetime and which had for its object the action by Bennet as Mersereau’s attorney in fact only, but by the very, terms of the instrument under which Bennet received the property and the trust upon which he held it he was to deliver the property -to these plaintiffs individually upon Merserean’s death. To hold that the instrument was revoked by Merserean’s death when under it Bennet was to dispose of the property in a particular way after his death would defeat the express intention as expressed in the instrument,- and it is these provisions that indicate the intention of Mersereau to vest in the trustee a title .to the property for without such title the instrument itself could not be carried out. '

My conclusion, therefore, is that by this instrument a trust was *421created; that title to the property transferred to him vested in Benuet; and that he held the property as trustee for George B. Mersereau during his life* and for Mersereau’s two children after his death. That being the legal effect of this instrument there can be no question but that the plaintiffs individually had a right to call upon Bennet to account. That principle has been settled by *Marvin*v. *Brooks*(94 N. Y. 71) which has been consistently followed in this State. All that was necessary to establish in this case was the fact that the trustee had not fully accounted and that, seems to be conceded. At any rate the complaint alleges that he has not accounted for the sum of $5,000 that was received and' held by him, and for that sum he was bound to accounts

I think, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Patterson, P„ J., Latjghlin and Clarke, JJ., concurred; Houghton, J., dissented. . •

Judgment reversed, new trial ordered, costs to appellants to abide event.

*

See 2 R. S. 63, § 40- [Rep. [R~r.