#### HIRSH et al. v. AUER.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

Trusts—Agreement to Receive Insurance Money.

Where a member of a mutual benefit association causes a new certificate to be issued in favor of defendant under an agreement that defendant should receive the money, and apply it to certain purposes, a trust is created which attaches to the money as soon as it comes into defendant’s hands.

Appeal from circuit court, Onondaga county.

Action by Emma L. Hirsch and others against Frederick Auer, substituted as defendant in place of Clara Auer, deceased. There was a judgment in favor of plaintiffs for $1,618.50 and costs, rendered on a trial by the court without a jury, and defendant appeals.

Affirmed.

The trial court found that on the 20th day of January, 1884, John Hirsh became a member of the society known as the Ancient Order of United Workmen, receiving therefrom a certificate of insurance, in which his then wife, Mary Ann Hirsh, was named as the beneficiary, entitling her to receive the sum of $2,000 upon his death. In July, 1887, his wife, Mary Ann, died, and in the fall of that year, in pursuance of the permission found in the certificate, *918he surrendered the same to the company, and on the 11th day of October, 1887, received from the order a new certificate, bearing the number 24,703 (being the same number of the first certificate), in which Clara Auer, his sister (the defendant in this action), is designated as the beneficiary. After her death he continued to reside at his home with the plaintiffs, his three daughters, who kept his house, as their mother had before her death, down to the 24th of February, 1892, when he died intestate, leaving no prop'erty with which to defray his funeral expenses, or to pay for a monument, or to provide for the future care and support of his children, “save and except such means as should be derived from his policy of insurance from the Ancient Order of United Workmen.”. In June, 1892, Clara Auer received the sum of $2,000 from the order, “the full value of the insurance policy or certificate No. 24,703 upon the life of the said John Hirsh.” Prior to the commencement of this action the plaintiffs made a demand upon her, which she refused to comply with, for the payment to them of $1,500 of the money so received; and as matter of law the court found, viz. “that the. plaintiffs are entitled to judgment in this action for the sum of $1,500-, and interest from June 10, 1892, together with the costs of this action.” Defendant took exceptions to the several of the findings of fact and conclusions of law, and made several requests to find matters of fact and propositions of law, which were denied, and exceptions were taken thereto.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Fuller & Glen, for appellant.

Stone, Gannon & Petit, for respondents.

HARDIN, P. J.

Having critically read and carefully considered all the evidence found in the appeal book upon the question of fact arising during the trial, we are of the opinion that the findings of the trial judge are supported by evidence, and are in accordance with the weight of the evidence, notwithstanding the testimony offered by the plaintiffs upon some of the vital issues of fact is contradicted by the testimony offered by the defendant in that regard. From the findings thus made, it appears that at the time the father of the plaintiffs obtained the second certificate, and made the same payable to his sister, Clara Auer, the defendant, the same was made payable to her “pursuant to an express agreement and understanding between the said John Hirsh and his sister, the said defendant) the purport of this agreement and understanding was that she, the said defendant, should, on the death of the said John Hirsh, receive the proceeds of that insurance certificate, to wit, two thousand dollars, and from these proceeds pay his funeral expenses, and pay for a monument, using for such purposes as much money as should be necessary, not exceeding five hundred ($500) dollars. The remainder of such proceeds was, according to the same agreement, to be paid by the defendant, upon receipt thereof by her, to the three children, the plaintiffs, share and share alike.” The father paid the dues and assessments to the order down to the time of Ms death, except one, which was paid shortly thereafter by his children. His sister, the defendant, paid no premiums to the order, nor did she in any way advance any money or valuable thing to the order, or to her brother, the insured. At the time of his death all the children were under age, and he left no other provision or property for their comfort and benefit. He retained possession of the certificate. The same was *919found among Ms papers a few days after Ms death, and two of the plaintiffs went to the house of the defendant, carrying the certificate, and held a conversation with her in respect thereto, in which they severally alluded to the understanding they had derived from their father in respect to the moneys that were to be received upon the certificate; and they testify that the defendant assented to the understanding which they related to have had, and that she admitted that the agreement was substantially as is found in the finding of fact which has been quoted above. It is insisted in behalf of the appellant that “no trust could be impressed upon the proceeds of the insurance in this case by an agreement between the insured and the beneficiary.” In support of that position, it is suggested that there was no property in esse upon which a trust could fasten, and that “the right of the insured in and to the fund created is not a property right, but a right to provide a fund to be disposed of by the statute, or by the naked power of designation.” In considering the position taken, it must be borne in mind that the insured procured the certificate to be issued upon his life, and furnished all the money for the payment of the dues and assessments thereon, keeping the same in life; that he kept possession of the certificate, and that it would be reasonable and natural for a father to make provision for Ms infant daughters, instead of for his adult married sister, who had a settlement in life; and that the circumstance that his children were under' age, and therefore not in a situation to receive and disburse the moneys as conveniently and discreetly as a person who had arrived at years of maturity. By the terms of the certificate he was authorized to change the appointee or beneficiary any time during his life, and, as he had kept possession of the certificate, it is not improbable that his intention was to make such change in the event that he survived until his children reached years of majority. Having possession of the certificate, with the stipxilations contained therein, it was within his power, without the consent of his sister, to return the certificate to the order, and obtain therefrom another certificate naming another beneficiary. Luhrs v. Lodge (Sup.) 7 N. Y. Supp. 487; Sabin v. Lodge (Sup.) 8 N. Y. Supp. 185, affirmed 134 N. Y. 423, 31 N. E. 1087. According to the doctrine of the last case cited, the beneficiary had no vested interest in the certificate until his death. Prior thereto, she had a revocable or determinable interest in it,—“a contingent interest, and one which may or may not become absolute.” Insurance Co. v. Woods (Ind. App.) 37 N. E. 182. Although the defendant did not have a present, actual ownership of the moneys to be received (and wMch were afterwards received) upon the certificate at the time she entered into the agreement to receive the same and disburse it according to the agreement found, yet we are of the opinion that the agreement did create an equity or a trust wMch attached to the money the moment she became the recipient of it, and that the trust is impressed upon the money; that.,the agreement shoxxld control her action in respect thereto until the object of the agreement was accomplished. Silvey v. Hodgon, 52 Cal. *920363; Jackman v. Nelson, 17 N. E. 529, 147 Mass. 300; Cartland v. Hoyt, 5 Atl. 775, 78 Me. 355; Field v. Mayor, etc., 6 N. Y. 167; Hall v. City of Buffalo, *40 N. Y. 193. In Stover v. Eycleshimer, *42 N. Y. 620, it was held that “assignments of contingent interests and expectations, and of things which have no present, actual existence, but rest in possibility only,” will be upheld, if they are entered into fairly, and are not against public policy. In Day v. Roth, 18 N. Y. 453, it was held that a declaration or agreement, however informal, evincing an intention merely to create a trust, will be upheld. In Neilly v. Neilly, 23 Hun, 651, it was said:

> “It is well settled that a formal or even a written agreement is not necessary to create a trust in money or personal estate.”

In Barry v. Lambert, 98 N. Y. 306, Chief Judge Buger said:

> “It is well settled that a trust in personal property may be created by paroi and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply that the party making them intended to divest himself of his interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust, even as against the owner, and although he continues to rdtain possession of the property devoted to the trust. But when the legal title is in one party, and the equitable ownership in another, it is only necessary for those facts to appear, in order to constitute the holder a trustee for the benefit of the other.”

In Gilman v. McArdle, 99 N. Y. 451, 2 N. E. 464, it was again held that a trust, as to personal property, may be created without writing; and in the same case it is observed that a trust may be created although it is to be executed after the death of the creator. The doctrine is again stated in Re Carpenter, 131 N. Y. 86, 29 N. E. 1005, and cases referred to.

We cannot assent to the contention of the appellant that the acts, declarations, or evidence of the admissions of the defendant in respect to the agreement were inadmissible, or that they tended “to vary or contradict the terms of the certificate itself, and are insufficient to raise a trust in respect to the proceeds of said certificate.” Doubtless, as between the order and the defendant, the certificate was the only evidence of agreement on the part of the order; and doubtless she, in view of that language, was entitled to receive, as she did, the moneys from the order in liquidation of the certificate. However, when she received the money, having made the agreement to hold it for the purposes mentioned in the agreement, a trust was fastened upon the money, which she was in duty bound to carry out. In the Carpenter Case, supra, there were formal written assignments to Pierce of the notes and securities, who took the legal title thereto, and it was said in respect thereto:

> “The petitioner took an equitable interest only, which she could enforce through the medium of a trust. Pierce was not only vested with the legal title to the original notes, but he was to take any new notes in his name. The rights of the petitioner were those of a beneficiary of a trust. There can be no doubt but a trust may be created to collect and pay over the proceeds of notes to a person designated by the creator of the trust.”

Appellant’s learned counsel calls our attention to Steere v. Steere, 5 Johns. Ch. 1, which related to real estate; and while we may *921agree with the language of the chancellor, wherein he says, “But intentions and intimations of that kind cannot well be considered as amounting to a clear and absolute trust, which a court of equity will recognize and enforce, unless the declaration of it be quite positive, and free from all ambiguity,” we are unable to see anything in the case which persuasively or conclusively supports the contention of the appellant. Nor do we think the case of Dean v. Dean, 6 Conn. 285, aids the contention of the appellant. In that case an absolute title had been conveyed, and a bill was filed to enforce a paroi agreement in respect thereto, and it was held that the paroi testimony was inadequate to support the bill.

2. When one of the plaintiffs was upon the stand, her attention was called to a conversation which she had with the defendant, her aunt, on the occasion of carrying the policy to her house, on the 2d day of March. The questions calling for that conversation were objected to, and one of the grounds stated was “that a personal transaction or communication with the deceased by this witness can’t be proved by a conversation had between this witness and the defendant.” Thereupon, the court observed: “What she says that the deceased stated to her is perfectly competent, but that don’t prove that the deceased said it. The conversation between the witnesses and the defendant is competent. I will give you an exception.” We think the ruling is in accordance with the doctrine stated in Hier v. Grant, 47 N. Y. 278.

We have looked at the other exceptions in the case, and are of the opinion that they do not present any error which requires us to disturb the conclusion reached at the circuit. The trial judge delivered an extensive opinion, fully and fairly commenting upon the evidence, giving cogent reasons for his conclusion upon the evidence, and stated several authorities which sustain the conclusion of law announced; and upon them, as well as upon the views already expressed, we are of the opinion that the decision made at the circuit should be allowed to stand. Judgment affirmed, with costs. All concur.