The opinion
Finch, J.
(dissenting):
The deed of trust, powers of attorney and letter referred to in the majority opinion should all be considered together, and so considered, they clearly show a declaration on the .part of Mrs. Bostwick to give to the trustee under said deed of trust for the purposes thereof, all the property to which Mrs. Bostwick was entitled" under a decree about to be entered in accounting proceedings by the United States Trust Company, as trustee of a trust created by Mrs. Bostwick’s husband, which proceedings were then pending in the Surrogate’s Court of New York county. Such decree was duly entered prior to the death of Mrs. Bostwick, and the property in question exactly ascertained. Also prior to Mrs. Bostwick’s death the plaintiff duly presented to the United States Trust Company, custodian of the securities, its authorization to receive the same, and demanded possession thereof. Said custodian recognized the right of the plaintiff to receive all the securities, and delivered a portion thereof to it. Concededly' there was a valid declaration of trust as to the securities so delivered. As to the remainder of the securities, it is impossible to find a valid ground of distinction so- as to prevent them from being a part of the same trust. The declaration of trust by Mrs. Bostwick was one and the same, the notice to the United States Trust Company was one and the same, and there was a partial delivery under such notice. The mere fact that for some reason not disclosed in the record, but having nothing to do with the declaration made by Mrs. Bostwick or the right of the plaintiff to receive the securities, ¿11 of the securities were not delivered, could not change the rights of the parties as to the undelivered securities. The powers of attorney delivered to the trustee in no way qualified the trust, but were merely delivered as a means for obtaining physical possession of the securities. Even assuming that the powers of attorney were revoked by the death of Mrs. Bostwick, they were only revoked as powers of attorney, leaving the declaration of trust unaffected. In other words, the powers of attorney are not necessary to the validity of the declaration of trust. Nor was a physical delivery of the property essential to the validity of the trust. Moreover, this court has even gone so far as to hold in a case where a delivery was necessary, that a symbolical delivery was sufficient (Matter of Cohn, 187 App. Div. 392 ). In that case *373 one Leopold Cohn gave to his wife a paper reading as follows: “ I give this day to my wife, Sara K. Cohn, as a present for her (46) forty-sixth birthday, (500) five hundred shares of American Sumatra Tobacco Company common stock.” The donor died six days after the delivery of the instrument. At the time of the gift he was the owner of 7,213 shares of the common stock of the American Sumatra Tobacco Company, but the stock was in the name and possession of his firm, and deposited in a safe deposit box which was in the name of and belonged to the firm. The court held that there was a symbolical delivery, saying: “ The intention to make the birthday gift being conclusively established, the gift being evidenced by an instrument of gift executed and delivered to the donee * * * and the circumstances surrounding the making of the gift affording a reasonable and satisfactory excuse for not making actual delivery of the certificates at the time the gift was made, there was in my opinion a valid and effectual gift of the certificates mentioned in the instrument of gift.”
When the plaintiff made due demand for the securities, pursuant to which there was a delivery of some of the securities, it is not too much to say that there was more of a symbolical delivery of all the securities than in the case last cited.
For the foregoing reasons the judgment should, in my opinion, in so far as it sustains the finding of the referee that the fund in question belongs to the trust estate, be affirmed.
Judgment reversed to the extent indicated in opinion and in other respects affirmed. Settle order on notice.