#### GOVIN v. DE MIRANDA.

(Supreme Court, General Term, First Department.

June 15, 1894.)

Trusts—Undelivered Declaration oe Trust.

One who signs and acknowledges a paper declaring that he holds intrust for another certain property, theretofore owned by himself, but retains custody of the paper, does not thereby create himself a trustee for the person named.

Appeal from circuit court, New York county.

Action by Felix St. Anna Govin against Luciana Govin De Miranda. From a judgment entered on a verdict directed in favor of defendant, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and PARKER and BARRETT, JJ.

A. Kling, for appellant.

E. C. James, for respondent

*346VAN BRUNT, P. J.

We see no reason to change the conclusion at which we arrived when this case was previously before the general term (27 N. Y. Supp. 1049); and the views expressed in the opinion handed down upon the decision of that appeal are confirmed by a re-examination of the case, and by the attempt upon the part of the appellant to establish a trust where it is apparent that, if any right of recovery exists, it is upon the ground that there was a gift.' It is too well settled to need the citation of authorities, that, to establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and the title of the donor, must be shown. In the case at bar, it is apparent that this condition has not been fulfilled. But it is urged that the donor became the trustee of the donee, and that that was the relation which existed between the parties. There is no evidence whatever to establish this assumption, except the statement at the end of the instrument of gift to the effect that “said securities will be retained in my custody for the present as the trustee for the said Felix G-ovin Diaz.” There was no attempt upon the part of the donor to part with the control of the subject-matter of this gift. Upon the contrary, he continued to exercise such control, and even parted with some portion of the securities mentioned in the original instrument of transfer as his own, and continued, until the time of his death, to exercise all the rights of ownership, without the. recognition of any present right in the alleged donee. While it is true that equity, where a trust is founded upon a valuable consideration, Avill interfere, and effectuate its intent, no such rule preA-ails for interposition to perfect a defective gift or voluntary settlement made without consideration. “When, therefore,” as was held in the case of Young v. Young, 80 N. Y. 437, “it is found that the gift which the deceased attempted to make failed to take effect, for want of delivery or a sufficient transfer, and it is sought to supply this defect, and carry out the intent of the donor, by declaring a trust which he did not himself declare, we are encountered by the rule above referred to.” Our attention is called to the case of Locke v. Trust Co., 140 N. Y. 135, 35 N. E. 578, in support of the proposition that without delivery, by the mere execution of an instrument by the donor, he may make himself a trustee of the subject-matter of the trust. An examination of the facts of that case does not support any such conclusion, which seems to be radically opposed to the existence of a fundamental fact necessary to a gift inter vivas. In the case above, there was no attempt upon the part of the donor to create a trust. What he seems to have intended was to make a gift which was to take effect after his death. Such a disposition can only be of a testamentary character, and cannot be upheld, unless it possesses the requisites required by gifts of this character. The judgment should be affirmed, with costs. All concur.