Booth's Appeal from Probate

Butler, J. It appears from the finding in this case that the claimants, or those whom they represent, as heirs at law of Asa Peck, deceased, furnished to their brother, Isaac Peck, a certain amount of money, pursuant to an agreement that it should be used by him in the purchase of a place, to be held by him in trust, for the use and benefit of their mother during her life, and on her decease for the use and benefit of said heirs. The case differs from the ordinary case, where money is furnished by one party to another party, to enable the former to purchase property and hold in his own name for the benefit of the latter, in this, that an express trust was intended [169] to be created for the benefit of the third party, their mother. The creation of such an express trust for Mrs. Peck was the sole object and purpose of the arrangement, and so far as the agreement may be said to contemplate any further trust, it had no other object or purpose than to secure to those who advanced the money, their interest, on the termination of the trust for the mother. So far then as there was any trust in favor of the heirs who advanced the money, it was such as the law would have implied, or would by implication have resulted to them from the mere fact that they furnished the money for that purpose. Upon a fair construction of the finding therefore, we are of opinion that the agreement, so far as it related to the interest of the claimants, imported no more than such agreements usually import, when money is furnished for the purchase of property, or than the law would import from the act, and that the trust was not of such a character that parol evidence could not be admitted to prove it. The decedent moreover, in her life time, disposed of the property and repudiated the trust for Mrs. Peck, and thenceforth acknowledged that she held the share of the claimants in money to their use. We do not think under such circumstances her representative can maintain the defence he has attempted to interpose. 2. We have no difficulty in relation to the claim that the trust was purged, by reason of the fact that the title passed from Isaac to Cynthia through Daniel Curtiss. It was substantially a conveyance from Isaac to Cynthia, she agreeing to hold for the same uses and purposes. 8. When Cynthia Peck sold the property and repudiated the trust for Mrs. Peck, a proportion of the avails of the sale, equivalent to the sum originally advanced by the claimants, became money had and received to their use, in her hands, and a lawful claim in their favor. The subsequent promises and acknowledgments of Cynthia were sufficient to prevent the statute of limitations from barring the claim, and it is a valid and subsisting one against her estate. And as Cynthia disposed of the trust estate and repudiated the trust, and both were acquiesced in by Mrs. Abijah Peck, we are further of [170] opinion that the claimants are entitled to interest from the time of the sale. The Superior Court is advised to decree accordingly. In this opinion the other judges concurred.