Bennett v. Littlefield

Lathrop, J. The plaintiffs seek to maintain their bill upon two distinct grounds. The first is that, although the residue of the estate was left absolutely to the defendant by her husband, he gave her directions to hold it in trust for the benefit of his relatives. The second is that the defendant made a voluntary trust. As to the first, the only ground upon which such a trust could result from a conversation between the defendant and her husband is that stated by Chief Justice Gray, in Olliffe v. Wells, 130 [298] Mass. 221, 224: “ It has been held in England and in other States, although the question has never arisen in this Commonwealth, that, if a person procures an absolute devise or bequest to himself -by orally promising the testator that he will convey the property to or hold it for the benefit of third persons, and afterwards refuses to perform his promise, a trust arises out of the confidence reposed in him by the testator and of his own fraud, which a court of equity, upon clear and satisfactory proof of the facts, will enforce against him at the suit of such third persons.” At the request of the defendant the judge ruled that all the evidence, so far as it related to any private conversation between the defendant and her husband regarding any direction which she received from her husband as to the disposition of the residue of the estate, be excluded, on the ground that it was the testimony of a private conversation between husband and wife. We do not find it necessary to consider this point, for all the evidence bearing thereon was in fact admitted, and the judge made a finding, on the assumption that such conversations or the admissions of the defendant of the substance of such conversations, were competent; For the purposes of the case we shall, without deciding the point, treat the evidence as admissible. This finding, after stating his ruling, was as follows: “ But, even though such private conversations should be considered competent evidence, I find that there was no direction given by the husband to her, no declaration of trust by him with reference to the disposition of such residuary estate, and she made no agreement with him in such private conversation with reference to the disposition of the estate under the will in behalf of the plaintiffs; that, so far as she did make any statement to him, it was merely a declaration of an intention as to some future gift of the property she expected to receive under the will, and was in no wise a declaration of trust.” We are of opinion that this finding was not only warranted by the evidence in the case, but was in accordance with it. No other person was present when any conversation was had between the defendant and the testator. She testified that no directions were given her by her husband as to what she should [299] do with certain moneys in the residuary clause of the will; that there was no request, direction or requirement in any form that she should do with the funds in the residuary clause in the will other than the will provided. The witness then testified to a conversation which she had with her husband, as follows: “ About three days before Mr. Littlefield passed away he said to me when we were alone and no other person present, that he had given Percy Barnard $1,000; that he had n’t given anything to Virgil Barnard, the father to Percy Barnard, and wanted to see if I would ask Percy if he was going to use the thousand dollars that he received from him for sending him to school? If not, would he divide with his father and give him five hundred dollars ? I said to my husband, ‘ I would n’t do that, but let me give Virgil five hundred from mine.’ I then said, ‘ Shall I give to Arthur Littlefield anything ? ’ He said 1 No.’ He said that he had n’t given anything to Alice Little-field; and I said, ‘ Well, never mind, I will give Alice something.’ I then said to him, 1 Would you like to have me give something to all your people ? ’ I thought if Virgil Barnard was going to have something, I felt it was nothing more than right that the other nieces and nephews should have something as well. He said to me, ‘ Hattie, I know you will do what is right.’ Then I said, 1 Well, what I give to your people I will give it as coming from you.’ And then he said to me — I spoke of the residue, what was left — and he said, 1 Don’t give it to my people, but give some of it to your sisters.’ Those are the very words that I had with my husband; that is why I give them all something.” We do not see in this any trust imposed upon the defendant by her husband. Nor is there a particle of evidence to show that the defendant procured the absolute bequest to herself by orally promising her husband that she would hold it for the benefit of the plaintiffs. The will was executed on September 18, 1898, and the testator died on November 26, 1898, and the conversation took place about three days before his death. There is nothing in the evidence to sustain the eleventh allegation of the bill that such promise as was made by the defendant was to prevent the plaintiffs from contesting the will; and the fourth finding of the judge was therefore correct. [300] It is, however, contended that after the death of the testator and the probate of the will, the defendant had certain interviews with some of the plaintiffs, and made statements to them which amounted to a voluntary declaration of trust on her part. The first finding of the judge is as follows: “ I do not find that the defendant, in her communications with the plaintiffs, or any of them, agreed to hold any part of the residuary estate in trust for the plaintiffs, or any of them; so far as she did make any statements to them, I find that it was simply a declaration of an intention to give something to them in the future, and that, 'at the time she made such statements, she gave them, or some of them, the impression that she was intending to make a gift on behalf of the testator.” The second finding of the judge is in effect that at the time of making such statements, the estate was in process of settlement, and the defendant had no knowledge of what the amount of the residuary estate would be. We do not deem it necessary to go over this evidence in detail. There is no doubt that there were certain conversations between the defendant and some of the plaintiffs, and this was not denied by the defendant, but she did specifically deny that they were as stated by the witnesses for the plaintiffs. It does not appear that the judge found that the account given by the plaintiffs’ witnesses was true; and we should be slow in disturbing his finding on contradictory evidence. It seems to us, on examining the evidence, that the judge came to a sound conclusion in finding as he did, and that it is a fair result of all the evidence. It is obvious that until the estate was settled there could be mo residuary fund from which a trust fund could be created; and it is well settled that a court of equity will not lend its assistance towards perfecting a voluntary contract or agreement for the creation of a trust, nor regard it as binding so long as it remains executory. Stone v. Hackett, 12 Gray, 227, 230. Welch v. Henshaw, 170 Mass. 409, 413. Milroy v. Lord, 4 De G., F. & J. 264, 274. Dipple v. Corles, 11 Hare, 183. Richards v. Delbridge, L. R. 18 Eq. 11. Young v. Young, 80 N. Y. 422, 437, 438. Cowan v. Wheeler, 25 Maine, 267. Steere v. Steere, 5 Johns. Ch. 1. Bill dismissed.