The opinion
Rabin, J. (concurring in result).
I concur for affirmance of the judgment, but solely on the ground that plaintiff by her conduct ratified the trust indenture. The opinion of Mr. Justice Breitel, on the issues of duress and undue influence is quite persuasive. However, despite the fact that I feel plaintiff did not make out a convincing case and that she knew fully the effect of the trust indenture when she signed it, it is my view that we should not disturb the trial court’s findings.
Subsequent to January, 1955, when plaintiff admitted she had a copy of the indenture and had consulted her attorney about it, plaintiff received from the trustees a number of payments to meet her special needs. These consisted of the purchase of a new automobile, payment of outstanding debts and additional provision for living expenses, purchase of special attachments for the automobile, payment of sales tax on the automobile, purchase of an ankle brace and provision for the employment of a servant.
Defendants contend that the request by plaintiff for, and the acceptance of these payments by her, constituted a ratification of the trust indenture. All of these payments were for essentials and the only available resource from which they could be obtained was the trust fund. While in a technical sense the acceptance of the payments might tend to indicate a ratification still I do not think that standing alone they are sufficient to spell out a ratification in fact or in law. In view of plaintiff’s circumstances the payments were for absolute necessaries and her acceptance should not be construed as an intention on her part to ratify the trust. Such an intention is essential for a finding of ratification (Barnard v. Gantz, 140 N. Y. 249 ). It was there said (p. 258): “ In order to effect a ratification of such an act it is necessary to show that the party intended such a result after knowledge of all the facts, and especially the important fact, that it did not conform to her intentions.” Nor do I think that plaintiff’s request that a bill for attorney’s services be paid out of the trust fund may be construed as an intention to ratify.
However, in 1955 there were two acts on the part of plaintiff, either of which in my opinion is sufficient to establish an intent to accept and ratify the trust indenture. The first consists of *241 her acquiescence in the appointment of a successor trustee who was designated at her specific request to replace her deceased father. On December 11, 1954, plaintiff asked that her personal attorney, Mr. Jay, be named as the substitute trustee. On February 23, 1955, Mr. Jay, with plaintiff’s full approval, accepted the appointment. Prior to that time plaintiff had gone over the provisions of the trust indenture with Mr. Jay “very carefully” and was advised as to her rights. She knew at that time — if indeed she did not know it at the time of signing the instrument — the legal effect thereof. She also then knew that the corpus of the trust was made up of her funds only. Despite that knowledge she had Mr. Jay appointed trustee. Obviously she wanted him in that position to protect her interests. This, in my view, constituted an acceptance and ratification by her of the trust (Rothschild v. Title Guar. & Trust Co., 204 N. Y. 458 ). Plaintiff certainly was acting under no duress at the time she approved of Mr. Jay’s appointment as successor trustee, for prior to that time her father had died, thereby removing all fears which she says caused her to sign the original instrument. We thus have a clear act on the part of plaintiff affirming the trust, having as its object the protection of her interests therein. This step was taken by plaintiff freely, without fear of any kind and with full knowledge of all the facts.
The second act clearly showing an intention to ratify the trust occurred in March, 1955, long after plaintiff was fully acquainted as to her rights respecting the trust indenture. At that time she signed a formal document authorizing the transfer into the trust fund of an additional $36,000. And this transaction was completed only after she had consulted her attorney and been advised by him. This act, done deliberately and advisedly, in my opinion constitutes an affirmance and ratification of the trust.
I agree with Mr. Justice Breitel that we should be reluctant to rest the validity of a trust of this nature merely on ratification, but the facts of this case are so clear and unequivocal as to impel a finding of ratification. Despite the fact that plaintiff was not happy with the trust and with full knowledge of all the facts indicating that it might possibly be avoided, she nevertheless by the acts referred to showed that it was her clear intention to affirm and ratify the trust.
For the reasons indicated I vote for affirmance.