APPEAL by the defendants, Adele Gueutal and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs and the defendant George Gueutal, entered in the office of the clerk of the county of New York on the 24th day of March,
1910, upon the decision of the court rendered after a trial at the New York Special Term in an action for a partition.
Hamilton R. Squier, for the appellants.
I. Newton Williams, for the plaintiffs, respondents.
William J. A. McKim, for the respondent George Gueutal.
This is an action for the partition of two parcels of real estate situated in the borough of Manhattan, in the county of New York, the title to which on the 2d day of January, 1880, was in George Gueutal, subject to two mortgages aggregating $19,000. On that day he conveyed the same to his daughter, Louise C. Gueutal, by a full covenant warranty deed, subject, however, to the payment of said mortgages which the grantee assumed and agreed to pay. In the conveyance the designation or description 'Trustee, & c.,' follows her name as party of the second part. The deed recites payment of a consideration of $6,168. Simultaneously with the execution of the deed the grantee executed an instrument described as a declaration of trust, in and by which she admitted and declared that the premises were conveyed to and were held by her 'in trust only for the use and benefit of the estate of Catherine Gueutal, and also for the use and benefit of Adele Gueutal, Marie Gueutal and myself and for our respective heirs, executors and administrators.' This declaration is immediately succeeded by the following provisions, to wit: 'The respective interests of the said cestuis que trust in the same being as follows, viz.: Interests of the estate of Catherine Gueutal in said property being thirty-nine hundred and sixty sixty-one hundred and sixty-eighths (3960-6168) of the same, and the respective interests of the said Adele Gueutal, Marie Gueutal and myself in said property being seven hundred and thirty-six sixty-one hundred and sixty-eighths (736-6168) of the same.'
An action was brought by George Gueutal, 2d, a grandson of the grantor in the deed, and others against the grantee and others for the construction of this instrument as a declaration of trust, and on appeal therein from an interlocutory judgment overruling a demurrer to the complaint, taken upon the ground that it failed to state facts sufficient to constitute a cause of action, this court decided that
the deed and declaration of trust should be construed together and that no valid trust was created, and that there was no necessity for resorting to a court of equity, inasmuch as any of the parties in interest might maintain an action at law for a partition of the property, and reversed the interlocutory judgment and sustained the demurrer to the complaint, with the usual leave to amend. The grounds upon which the decision was based, as stated in the opinion, were that the instrument attempted to create a trust in perpetuity, that it was indefinite with respect to the beneficiaries in so far as it was for the benefit of the estate of Catherine Gueutal, and that it was at most a passive trust and that under the statute no title vested in the trustee, but passed immediately to the beneficiaries. ( Gueutal v. Gueutal, 113 A.D. 310.)
The decision upon which the interlocutory judgment was entered, from which the appeal has been taken, went upon the theory that as to the interest in the premises stated in the declaration of trust to have been conveyed for the benefit of the estate of Catherine Gueutal, the beneficiaries were not described with sufficient definiteness, and that, therefore, the title to that interest remained in the grantor. It is claimed that that decision was warranted, if not required, by the opinion of this court in the action to which reference has been made. In the discussion of the question on that appeal that view is intimated, but the point was not decided. The learned counsel for the appellants on the trial of the issues in this action contended, and he contends on this appeal, that the deed from George Gueutal to his daughter, Louise C. Gueutal, was effectual to pass all of his title, and that the attempted declaration of trust by the grantee was voluntary, and since it has been held ineffective as to thirty-nine hundred and sixty sixty-one hundred and sixty-eighths of the title, she obtained good title to that part of the premises. In support of this contention he points to the consideration recited in the deed as having been paid by the grantee, and to the assumption of the mortgages by her, as well as to the warranty and covenants. No evidence, other than the recital in the deed, was offered to show the actual payment of the consideration recited as having been paid by the grantee. The plaintiffs, however, proved that on the 2d day of January, 1879, the grantor, George Gueutal, and his son, Louis Gueutal, who were then copartners
in business, made an assignment of all their property to Thomas Alexander, Jr., for the benefit of creditors, and the assignment directed the assignee to first pay said Catherine Gueutal $3,960, and each of the three daughters of George Gueutal named in the declaration of trust the sum of $736, it being recited that the firm owed them these respective amounts. It appears that when this assignment was first offered in evidence counsel for the plaintiffs also offered a later assignment by the same parties on the 7th day of February, 1879, to another assignee, Frederick Lewis, and stated that it was recorded in the county clerk's office on the 8th day of February, 1879. The assignments when first offered were excluded on the objection of counsel for the appellants. Later on the first of these assignments was offered and received in evidence without objection, but the second assignment was not again offered in evidence. A conveyance of the premises in question by said Frederick Lewis as assignee to said George Gueutal on the 2d day of January, 1880, the same day on which he conveyed the premises to his daughter, was, however, offered and received in evidence. This conveyance recites that the premises thus conveyed were a portion of the estate of George Gueutal, duly assigned by him for the benefit of creditors on the 2d day of January, 1879. The indebtedness of George Gueutal and son to his wife and daughters, acknowledged in the assignment for the benefit of creditors, aggregates the amount of the consideration recited in the deed to his daughter, and the proportion that the indebtedness to his wife and to each of his daughters bears to the amount of the indebtedness to all of them corresponds exactly to the proportionate interests of the daughters and of the estate of his wife, who had died intermediate the date of the assignment for the benefit of creditors and the conveyance to the daughter, acknowledged in the declaration of trust. The inference, therefore, is fairly warranted that the consideration ...