Howard v. Fosketts

BENSON, J. In the consideration of the questions involved herein, certain undisputed facts should be kept in mind. W. H. Abrams and the defendant, Alice S. Foskett, were married in 1878, and at the time of his death had been husband and wife for a period of about thirty-seven years. When the wedding occurred, the husband had three small children by a former wife. These children grew to maturity in their father’s home, from which, prior to the execution of the joint deed in controversy, they had married and established homes of their own. The domestic life of Abrams and his wife appears to have been exceptionally happy. At the outset, the husband’s resources were small, and the addition of the wife’s funds was a marked reinforcement of his working capital and doubtless had a large influence upon their subsequent prosperity. The wife was a skilled musician and added to the family income by her (Services as a teacher of music. At the time of the marriage she received from her parents a. gift of $1,000, and subsequently received from their estate, according to her testimony, an additional $3,000, all of which was used by Abrams in his business. There is some evidence tending to prove that the latter sum may have been not more than $2,000, and there is some evidence to the effect that her husband paid her interest on these sums. The evidence fails to establish the assertion that the deeds were executed because of the wife’s importunities or that the husband was then mentally weak. [450] It is the contention of defendant that the complaint is founded upon allegations of an express trust, and that therefore parol evidence is not admissible to establish its existence. The allegations of the complaint upon this subject are as follows: i “That, on October 21, 1913, for the consideration hereinafter expressed, the said Lorenzo Sanford conveyed all of the said real estate to the said W. H. Abrams and Alice S. Abrams, husband and wife, and that it was agreed and understood by and between the said W. H. Abrams and Alice S. Abrams, that if she survived the said W. H. Abrams, she would convey the said real estate to the said Minnie S. Howard, Thomas C.‘ Abrams and G-race McClellan reserving unto herself a life estate in and to the said real estate. “That, in consideration of the execution of the said two deeds, the said Alice S. Abrams, now Alice S. Foskett, verbally promised the said W. H. Abrams, deceased, that if he died first she would convey the said real estate unto his said three children above named, reserving unto herself a life> estate therein. “That, in reliance upon the said verbal promise of the said Alice S. Foskett and believing the same to be true, and in consideration thereof, the said "W". H. Abrams consented to the execution of the said two deeds.” 1. “Express trusts are such as are created by the deliberate or intentional act of the settlor, and implied trusts are trusts which, without such voluntary acts, arise out of the transactions of the parties by operation of law”: 1 Beach on Trusts and Trustees, 45. 2, 3. Applying this definition, the complaint is clearly founded upon an express trust, which it is alleged was created by a parol agreement between the parties. This being true, the evidence requisite [451] to establish a trust under the joint deed is governed by Section 804, L. O. L., which reads thus: “No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written -authority, and executed with such formalities as are required by law.” Speaking of this section, in the case of Cooper v. Thomason, 30 Or. 161 (45 Pac. 295), Mr. Justice Moore says: “The rule is universal that a parol declaration of a trust will not affect the land, and for this reason parol evidence is inadmissible to establish such a trust. In Fairchild v. Rasdall, 9 Wis. 379, the court, speaking of the universality of this rule, say: ‘We do not feel called upon to cite authorities to show that, in the absence of fraud, accident or mistake, parol evidence cannot be received to prove that a deed, absolute on its face, was given in trust for the benefit of the grantor.’ ” In Karr et al. v. Washburn et al., 56 Wis. 303 (14 N. W. 189), under a statute which is practically identical with ours, the court says: “Whatever may be the language of the courts, perhaps of this court, in some of the cases, such a trust is not an absolute nullity. It is simply void at the election of the trustee. He may execute it or not, as he chooses, and the courts will not interfere to compel him to execute it or to refrain from so doing. If he refuses to execute it, from thenceforth the trust, which rests only upon a moral obligation, is a nullity.” But it is urged by plaintiffs in the present case, that there is such fraud disclosed in the transaction as withdraws the matter from the operation of the [452] statute. The only allegation of fraud found in the complaint is to the effect that Alice S. Abrams did not intend to perform her promise when she made it. It is true that in a few cases the making of a promise, with the present intention of disregarding it, is sufficient evidence of fraud, yet the obstacles presented to an effort to prove what the intent of a party might have been at the time of making a promise, renders such authorities of doubtful value, and in the present ease we have searched the evidence in vain for anything upon which to predicate a finding of such fraud. 4. It is also urged that a certain letter written by Mrs. Foskett sufficiently declares the trust. This letter, evidently written in response to a letter from her stepdaughter’s husband, is as follows: “Salem, March 8, 1916. “Dear Charlie: In regard to your request for an arrangement of affairs, I am not as you realize in a position to know what arrangements could be made protecting my life interest in the properties as well as my personal equity therein, consequently I will be obliged .to have the advice of counsel before making a reply to- your letter. As soon as I have received the necessary advice I will communicate with you. The weather has been very disagreeable for over a week. “Sincerely yours, “(Signed) Alice S. Abrams.” This letter falls very far short of stating or acknowledging the terms of a trust, and .drives the plaintiffs back upon parol evidence to explain what she is talking about. It follows that the decree must be affirmed, and it is so ordered. Affirmed. Rehearing Denied. McBride, C. J., and Bennett and Johns, JJ., concur.