George F. Ditmars, as Receiver of the Property of Arthur E. Smith, Appellant, v. Arthur E. Smith and George A. Peel, Individually and as Deputy Sheriff of the County of Ontario, Respondents

George F. Ditmars, as Receiver of the Property of Arthur E. Smith, Appellant, v. Arthur E. Smith and George A. Peel, Individually and as Deputy Sheriff of the County of Ontario, Respondents. Assignment of book accounts—by a judgment debtor to a sheriff—express trust created—pa/rol proof as to the purpose and the beneficia/t'ies — who may sue. In an action brought to set aside an assignment of certain book accounts belonging to the defendant Smith, made by him to the defendant Peel, a deputy sheriff, it appeared that on January 16, 1895, James B. Ford and John A. Parlett severally recovered judgments against Smith; that executions upon these judgments were on the same day severally delivered to the defendant Peel as deputy sheriff, who immediately levied on all the property of Smith, including his book accounts, and immediately thereafter obtained from Smith an assignment, by which Smith assigned to Peel, as deputy sheriff, all his book accounts and the sums due thereon to apply on the executions which Peel then held against him. Peel advertised and sold the property, collected what he could of the book accounts, and indorsed the amount on the executions in favor of Ford and of Parlett. After the assignment by Smith to Peel other creditors of Smith obtained judgments against him, under which the plaintiff was appointed receiver, and subsequently brought this action to set aside the assignment. Held, that the assignment was valid; that it created a trust of personalty, under which the sheriff became the trustee of an express trust for the benefit of the judgment creditors in the executions described in the assignment; That the subject-matter and the purpose of the trust and the persons who were to take the beneficial interest might be ascertained by parol proof; That the transaction might be considered as equivalent to a levy by the sheriff; That the sheriff as the trustee of an express trust might sue in his own name for the benefit of the real parties in interest, and that the latter might also sue in their own- names. Appeal by the plaintiff, George F. Ditmars, as receiver of the property of Arthur E. Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on the 23d day of September, 1895, upon the report of a referee. This action was brought to set aside an assignment made by defendant Smith to defendant Peel, a ■ deputy sheriff, of certain book accounts to apply on an execution against Smith in the hands of Reel, as deputy sheriff, for collection. January 16, 1895, James B. Ford recovered a judgment in the Supreme Court against Arthur E. Smith, the defendant in this action, for $3,634.8.0, and on the same day and in the same court John A. Parlett recovered a judgment against said Smith for -.$2,054.75 ; on the same day executions were issued thereon and delivered to the defendant Peel, as deputy sheriff, .who, under such executions, immediately levied on all the property of the judgment debtor, , including his books of account, and after due advertisement sold the property at public sale. The amount so realized was $2,705.15, about $3,000 less than the executions in his hands. Prior to the sale about $1,000 in value of the property was surrendered to other creditors, who claimed such property so surrendered. The proceeds of the sale were credited by the deputy sheriff on the executions in equal amount. Immediately after the levy was made the deputy sheriff obtained from the defendant Smith this assignment : “ Geneva, 1ST. Y., Jan. 16, 1895. “For value received I assign and turn over to George A. Peel, deputy sheriff, to apply on the executions he holds against me, all of my book accounts and the sums due thereon. “ ARTHUR E. SMITH.” After the sale of the goods Peel proceeded to collect, ivhat he could of the book accounts and indorsed the amounts so collected on the executions. Subsequent to this assignment other creditors of the defendant Smith obtained judgments against him, and the plaintiff was afterwards duly appointed receiver under such judgments and he brings this action as such receiver. George L. Bachman,, for the appellant. D. B. Backenstose, for the respondents. [MAJORITY — Green, J.:] Green, J.: The main contention of the appellant’s counsel is that this assignment is void 'upon its face as it purports to be given to Peel, “ deputy sheriff,” and for the further reason that there is no beneficiary named in the assignment, and that, therefore, the instrument cannot be held to be an assignment in trust. This is the fundamental question to.be decided, upon this review, and upon its decision rests the disposition of this case. There are other exceptions raised, but, upon examination, I am satisfied that they were properly disposed oí by the referee. I am of the opinion that the finding of the referee, that this assignment was a valid and legal instrument, must be sustained. By this assignment a trust of personalty was created, and the sheriff became the trustee of an express trust for the benefit of the judgment creditors in the executions named in the assignment. A trust of personalty may be created for any purpose not forbidden by law or contrary to public policy, nor is any formal or written instrument or memorandum thereof necessary. (Day v. Roth, 18 N. Y. 448 ; Gilman v. McArdle, 99 id. 451.) Even though the property be transferred by an instrument absolute in form, the trust may be shown by parol evidence. (Chace v. Chapin, 130 Mass. 128.) The subject-matter and the purpose of the trust, and the persons who are to take the beneficial interest, may be ascertained by parol proof. (Kramer v. McCaughey, 11 Mo. App. 426.) As a general rule, all persons may be trustees ; and there is no-rule of law or statutory provision, disqualifying a sheriff from taking an assignment of a claim from a judgment debtor,- in trust, for the benefit of the judgment creditor in whose favor he holds an execution, and to collect the claim and apply the proceeds in payment or satisfaction of the execution which he holds in his hand. When the trust, becomes executed by assignment or delivery of the claim, it is irrevocable by the assignee so. long as the judgment remains-unpaid, nor can it be questioned by his creditors except upon the ground that it was made to hinder, defeat, delay or defraud them. (See Rogers Locomotive Works v. Kelly, 19 Hun, 399.) The trustee is bound to hold the claim or securities "assigned to him and to apply the proceeds to the benefit of the beneficiary. (Morris v. Webb, 45 N. Y. Super. Ct. 305.) The assignee, by acceptance of the assignment, becomes a trustee for the persons designated, to the extent of the moneys directed to be paid to them, and, upon a collection of the claim, an action will lie against him by them for the moneys so directed to be paid, and a parol agreement, made at the time of the assignment of the claim, as'a part of the transaction, that a certain person should "be paid a certain sum out of the proceeds of, the claim when collected, may, although it be not embodied in the written instrument, be proved on behalf of such person, he not being a party to the instrument. (Warburton v. Camp, 55 N. Y. Super. Ct. 290.) It is a maxim of equity that a trust will not be permitted to fail for want of a trustee ; so that, if the person named is incompetent, .another will be appointed. The incompetency or disqualification of the person cannot affect the validity of the trust, nor impair its enforcement. The sheriff may become a trustee independently of his official character, and. is personally responsible for the execution of the trust. The assignment may be deemed to' have been made to the incumbent of the office in his individual and not in his official capacity. We are unable, therefore, to perceive upon what legal or equitable ground the other creditors have any claims upon these accounts, or their proceeds. (See Bump on Fraud. Conv. 213, 405 ; Dunham v. Whitehead, 21 N. Y. 131.) Indeed, the transaction may be considered as equivalent to a levy by the sheriff. The sheriff, by virtue of this assignment, became a trustee of .an ■express trust, and may sue in his own name for the benefit of the real party in interest, and so may the latter sue in their own names. (Cummins v. Barkalow,4 Keyes, 514, 524; Wetmore v. Hegeman, 88 N. Y. 69.) The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.'