Green v. Tulane

• Decision Date: 12 December 1893
• Citation: 28 A. 9,52 N.J.E. 169
• Parties: GREEN v. TULANE et al.
• Court: New Jersey Court of Chancery

28 A. 9

52 N.J.E. 169

GREEN

v. TULANE et al.

Court of Chancery of New Jersey.

Dec. 12, 1893.

(Syllabus by the Court.)

Bill of Interpleader by Ellen G. Green, executrix of Caleb S. Green, deceased, against Paul M. Tulane and another, administrators of the estate of Paul Tulane, deceased, and Frances F. Clifton, executrix of Marien Passage, deceased, and of Adelaide C. Clifton, deceased, to determine the rights of defendants to certain bonds in the custody of complainant. Heard on pleadings and proofs in open court. Decree for defendant Clifton.

The other facts fully appear in the following statement by PITNEY, V. C:

The pleadings and evidence disclosed the following facts: Paul Tulane, late of Princeton, was, in his lifetime, a friend and benefactor of two sisters, residents of the same town, Mrs. Adelaide C. Clifton and Miss Marien Passage, having for years before his death made them a yearly allowance in cash. On the 15th of May, 1873, he deposited with the late Hon. Caleb S. Green, of Trenton, three coupon bonds of the state of New Jersey, known as "war bonds," of $1,000 each, payable to bearer, and maturing on the 1st day of January, 1893, numbered, respectively, 20, 21, and 22, and at the same time handed to Judge Green a paper, signed by himself, in these words: "Having deposited in the hands of Caleb S. Green three $1,000 bonds of the state of New Jersey, I hereby authorize and direct him, in case of my death, to deliver said bonds to Miss Marien Passage and her sister Adelaide Clifton, to be equally divided between them. Dated May 15, 1873. Paul Tulane." There is no evidence to show that at the date of the deposit Mr. Tulane was sick, or in any peril or fear of immediate death. During Mr. Tulane's lifetime, either Judge Green or his son, who was his law partner, cut the interest coupons from these bonds, and paid the proceeds to Mr. Tulane. He died March 27, 1887. The bonds still remained in Judge Green's hands and came into the hands of his executrix, the complainant, at his death, in 1891. Both Mrs. Adelaide Clifton and Miss Passage survived Mr. Tulane, but each died, testate, before Judge Green. The defendant Mrs. Frances F. Clifton was named executrix of the will of each. The administrators of Mr. Tulane, and Mrs. F. F. Clifton, as executrix of Mrs. Adelaide Clifton and of Miss Passage, each claimed the bonds from Judge Green in his lifetime, and, after his death, from his executrix, whereupon she filed her bill against them, praying that she might be permitted to deliver the bonds into the custody of the court, and be discharged, and that the contending parties might interplead, etc. The contestants answered, setting forth their respective claims, and the cause was brought to hearing at one time on all the issues. After hearing the evidence, an order was made at once for the delivery into the custody of the court of these bonds, which was done, and the court took time to consider the rights of the defendants.

William M. Lanning, for complainant.

John F. Hageman, Sr., and John F. Hageman, Jr., for defendant Mrs. Clifton. W. D. Holt, for defendant Tulane's administrators.

PITNEY, V. C, (after stating the facts.) The rules of law governing this case are well settled, and it seems to me that the result of their application is not open to doubt. The case is one of gift, pure and simple, and there is not a particle of consideration, either meritorious or valuable. The simple question, then, is, was the gift so far completed by the unrevoked acts of the donor that it is considered in law to be complete? The rule is well settled that, in order to make a perfect gift, it must be, if a chattel, so far delivered, or, if real estate, so completely conveyed, that the title vests in the donee without any aid from this court as against the donor or his or her heir or personal representative. If anything more must be done by the donor in order to vest the title, so that the donee, or his or her heir or personal representative, shall do some further act, then the gift is not complete. This is so whether the gift be direct, or by means of a trust either in a third person or in the donor himself. 1 Perry, Trusts, §§ 90-98, 100. In the section last cited, Mr. Perry says: "If the donor or settlor propose to make a stranger the trustee of his property, and the property is a legal estate, capable of legal transfer and delivery, the trust is not perfectly created, unless the legal Interest is actually transferred to or vested in the trustee. It is not enough that the settlor executed a paper purporting to pass it, if in fact the paper does not have that effect The intention of the settlor to divest himself of the legal title must be consummated and executed, or the court will not enforce the trust." And Lord Eldon, in Ellison v. Ellison, 6 Ves. 662, says: "I take the distinction to be that if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as upon a covenant to transfer stock, etc.; but if the party has completely transferred stock, etc., though it is voluntary, yet, the legal conveyance being effectually made, the equitable interest will be enforced by this court." And see Lewin, Trusts, *84.

In this case the subject of the gift was negotiable bonds, which passed by delivery. No writing or assignment on the part of the donor, or transfer on the books of the state, was necessary in order to transfer the title. When, therefore, Mr. Tulane delivered the bonds to Judge Green, he put it in his power to dispose of them, and make title to them to anybody that he saw fit without any further act on the part of Mr. Tulane. The title at law became vested in Judge Green. He obtained it by the voluntary act of the former owner of the bonds. This seems clear enough. The only question is, for whom did Judge Green hold them? He never made any claim to them on his own account, nor does his executrix, and I do not see how the administrators of Tulane can make any claim to them in the absence of some paper signed by Judge Green, or other proof that he held them in trust for Mr. Tulane. It may be suggested that the fact that he paid Mr. Tulane the interest which accrued upon them up to his death is evidence that he did hold them in trust for him. I think that is true, so far as concerns the interest accruing up to that time, but in a matter of trust it is easy enough to separate the principal from the interest, and the mere fact that he paid the interest to Mr. Tulane goes no further than to show prima facie that he held the bonds for his benefit during his lifetime. But, then, Mr. Tulane has himself declared in writing who were to be the cestuis que trustent of the bonds at and after his death. He has said that they were to go to Mrs. Clifton and Miss Passage, and he has directed that the holder of the legal title and the actual possessor of the bonds should deliver them to those ladies, to be shared between them equally; and that paper he never revoked. It is not necessary now to determine whether he could have done so at any time after notice had been given to the beneficiaries in remainder of the gift, and they had formally accepted it it is enough to say that nothing of the kind was done, and Paul Tulane died without having resumed possession of the bonds, or having revoked his direction in writing that they should be delivered to the beneficiaries named. The result is that the gift was a complete...