In re Carpenter

• Decision Date: 02 February 1892
• Citation: 131 N.Y. 86,29 N.E. 1005
• Parties: In re CARPENTER.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 86

29 N.E. 1005

In re CARPENTER.

Court of Appeals of New York.

Feb. 2, 1892.

Appeal from supreme court, general term, third department.

Application of Elvira B. Carpenter for the appointment of a trustee in place of George A. Pierce, deceased. The special term granted the petitioner, and the general term reversed the order of the special term. Petitioner appeals. Reversed.

TRUSTS-APPOINTMENT OF NEW TRUSTEE.

1. Where overdue notes are assigned by the owner upon the express agreement that the assignee shall collect the notes if possible, or, if they are uncollectible, shall obtain new notes in their place, and shall give the proceeds or the new notes to a third person, the assignee holds the notes and their proceeds in trust for such person.

TRUSTS-APPOINTMENT OF NEW TRUSTEE.

2. Upon the filing of a petition showing prima facie that a deceased person held certain personal property in trust for the petitioner, it is proper to appoint a new trustee, even though the existence of the trust be denied by the administrator, since such appointment does not prevent the administrator from denying the existence of the trust when afterwards called upon by the new trustee to deliver the trust-estate. 15 N. Y. Supp. 817, reversed.

C. E. Patterson, for appellant.

W. C. Daley, for respondent.

ANDREWS, J.

The petitioner was entitled under the act, chapter 185 of the Laws of 1882, to have a new trustee appointed in place of George A. Pierce, the deceased trustee, upon a prima facie case being made, not conclusively disproved, showing that the notes, money, and securities in the hands of the administrator of Pierce, referred to in the petition, were either held by Pierce, at his decease, as trustee for the petitioner, or were the proceeds of the trust-estate. In re Waring, 99 N. Y. 118, 1 N. E. Rep. 310. The appointment of a new trustee would not conclude the representatives of the estate of Pierce, in any proceeding instituted by the appointee to subject the property in the hands of the administrator of Pierce to the test, from contesting its existence, or from claiming that the property belonged to the decedent. Moreover, the order of the special term was made expressly ‘without prejudice to the estate of George A. Pierce, deceased, to contest.’ Trusts of personal property may be created without writing, for any lawful purpose, and are not, in respect either of the mode or purposes of their creation, within the statute of uses and trusts. Day v. Roth, 18 N. Y. 448;Gilman v. McArdle, 99 N. Y. 451, 2 N. E. Rep. 464. The transaction out of which the alleged trust arose is set forth in the petition. It avers, in substance, an assignment by Sylvanus Carpenter to George A. Pierce, on or about February 16, 1889, of 11 overdue promissory notes, then owned by Carpenter, amounting in the aggregate to about $2,500, upon the express agreement or understanding that Pierce was to collect the notes, and pay and give the proceeds to ‘your petitioner as beneficiary,’ or, in case of the inability of the makers to pay them, to obtain from them new notes, ‘payable to said Pierce or...