Hebrew University Ass'n v. Nye

• Decision Date: 28 March 1961
• Citation: 169 A.2d 641,148 Conn. 223
• Court: Connecticut Supreme Court
• Parties: HEBREW UNIVERSITY ASSOCIATION v. George O. NYE et al., Executors (ESTATE OF Ethel S. YAHUDA). Supreme Court of Errors of Connecticut

Page 641

169 A.2d 641

148 Conn. 223

HEBREW UNIVERSITY ASSOCIATION v. George O. NYE et al., Executors (ESTATE OF Ethel S. YAHUDA).

Supreme Court of Errors of Connecticut.

March 28, 1961.

John J. Resnik, New Haven, with whom, on the brief, was Nathan A. Resnik, New Haven, for appellants (defendants).

Louis Feinmark, New Haven, with whom was Irving Smirnoff, New Haven, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

KING, Associate Justice.

The plaintiff obtained a judgment declaring that it is the rightful owner of the library of Abraham S. Yahuda, a distinguished Hebrew scholar who died in 1951. The library included rare books and manuscripts mostly relating to the Bible, which Professor Yahuda, with the assistance of his wife, Ethel S. Yahuda, had collected during his lifetime. Some of the library was inventoried in Professor Yahuda's estate and was purchased from the estate by his wife. There is no dispute that all of the library had become the property of Ethel before 1953 and was her property when she died on March 6, 1955, unless by her dealings with the plaintiff between January, 1953, and the time of her death she transferred ownership to the plaintiff. While the defendants in this action are the executors under the will of Ethel, the controversy as to ownership of the library is, in effect, a contest between two Hebrew charitable institutions, the plaintiff and a charitable trust or foundation to which, as hereinafter appears, Ethel bequeathed the bulk of her estate.

The pertinent facts recited in the finding may be summarized as follows: Before his death, Professor Yahuda forwarded certain of the books in his library to a warehouse in New Haven with instructions that they be packed for overseas shipment. The books remained in his name, no consignee was ever specified, and no shipment was made. Although it is not entirely clear, these books were apparently the ones which Ethel purchased from her husband's estate. Professor Yahuda and his wife had indicated to their friends their interest in creating a scholarship research center in Israel which would serve as a memorial to them. In January, 1953, Ethel went to Israel and had several talks with officers of the plaintiff, a university in Jerusalem. One of the departments of the plaintiff is an Institute of Oriental Studies, of outstanding reputation. The library would be very useful to the plaintiff, especially in connection with the work of this institute. On January 28, 1953, a large luncheon was given by the plaintiff in Ethel's honor and was attended by many notables, including officials of the plaintiff and the president of Israel. At this luncheon, Ethel described the library and announced its gift to the plaintiff. The next day, the plaintiff submitted to Ethel a proposed newspaper release which indicated that she had made a gift of the library to the plaintiff. Ethel signed the release as approved by her. From time to time thereafter she stated orally, and in letters to the plaintiff and friends, that she 'had given' the library to the plaintiff. She refused offers of purchase and explained to others that she could not sell the library because it did not belong to her but to the plaintiff. On one occasion, when it was suggested that she give a certain item in the library to a friend, she stated that she could not, since it did not belong to her but to the plaintiff.

Early in 1954, Ethel began the task of arranging and cataloguing the material in the library for crating and shipment to Israel. These activities continued until about the time of her death. She sent some items, which she had finished cataloguing, to a warehouse for crating for overseas shipment. No consignee was named, and they remained in her name until her death. In October, 1954, when she was at the office of the American Friends of the Hebrew University, a fund raising arm of the plaintiff in New York, she stated that she had crated most of the miscellaneous items, was continuously working on cataloguing the balance, and hoped to have the entire library in Israel before the end of the year. Until almost the time of her death, she corresponded with the plaintiff about making delivery to it of the library. In September, 1954, she wrote the president of the plaintiff that she had decided to ship the library and collection, but that it was not to be unpacked unless she was present, so that her husband's ex libris could be affixed to the books, and that she hoped 'to adjust' the matter of her Beth Yahuda and her relations to the plaintiff. A 'beth' is a building or portion of a building dedicated to a particular purpose.

The complaint alleged that the plaintiff was the rightful owner of the library and was entitled to possession. It contained no clue, however, to the theory on which ownership was claimed. The prayers for relief sought a declaratory judgment determining which one of the parties owned the library and an injunction restraining the defendants from disposing of it. The answer amounted to a general denial. The only real issues raised in the pleadings were the ownership and the right to possession of the library. As to these issues, the plaintiff had the burden of proof. Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181; Holt v. Wissinger, 145 Conn. 106, 109, 139 A.2d 353. The judgment found the 'issues' for the plaintiff, and further recited that 'a trust [in relation to the library] was created by a declaration of trust made by Ethel S. Yahuda, indicating her intention to create such a trust, made public by her.' We construe this language, in the light of the finding, as a determination, that, at the luncheon in Jerusalem, Ethel orally constituted herself a trustee of the library for future delivery to the plaintiff. The difficulty with the trust theory adopted in the judgment is that the finding contains no facts even intimating that Ethel ever regarded herself as trustee of any trust whatsoever, or as having assumed any enforceable duties with respect to the property. The facts in the finding, in so far as they tend to support the judgment for the plaintiff at all, indicate that Ethel intended to make, and perhaps attempted to make, not a mere promise to give, but an executed, present, legal gift inter vivos of the library to the plaintiff without any delivery whatsoever.

Obviously, if an intended or attempted legal gift inter vivos of personal property fails as such because there was neither actual nor constructive delivery, and the intent to give can nevertheless be carried into effect in equity under the fiction that the donor is presumed to have intended to constitute himself a trustee to make the necessary delivery, then as a practical matter the requirement of delivery is abrogated in any and all cases of intended inter-vivos gifts. Of course this is not the law. A gift which is imperfect for lack of a delivery will not be turned into a declaration of trust for no better reason than that it is imperfect for lack of a delivery. Courts do not supply conveyances where there are none. Cullen v. Chappell, 2 Cir., 116 F.2d 1017, 1018. This is true, even though the intended donee is a charity. Organized Charities Ass'n v. Mansfield, 82 Conn. 504, 510, 74 A. 781. The cases on this point are collected in an annotation in 96 A.L.R. 383, which is supplemented by a later annotation in 123 A.L.R. 1335. The rule is approved in 1 Scott, Trusts § 31.

It is true that one can orally constitute himself a trustee of personal property for the benefit of another and thereby create a trust enforceable in equity, even though without consideration and without delivery. 1 Scott, op. cit. § 28; § 32.2, p. 251. But he must in effect constitute himself a trustee. There must be an express trust, even though oral. It is not sufficient that he declare himself a donor. 1 Scott, op. cit. § 31, p. 239; 4 id. § 462.1. While he need not use the term 'trustee,' nor even manifest an understanding of its technical meaning or the technical meaning of the term 'trust,' he must manifest an intention to impose upon himself enforceable duties of a trust nature. Cullen v. Chappell, supra; Restatement (Second), 1 Trusts §§ 23, 25; 1 Scott, op. cit., pp. 180, 181. There are no subordinate facts in the finding to indicate that Ethel ever intended to, or did, impose upon herself any enforceable duties of a trust nature with respect to this library. The most that...