Barron v. Stuart

Hart, J., (after stating the facts).. Section 3666 of Kirby’s Digest reads as follows: “All declarations or- creations of trusts or confidences of any lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void; and all grants and assignments of any trusts or confidences shall be in writing, signed by the party granting or assigning the same, or by his last will in writing, or else they shall be void.” Under this section all declarations of trust which are not proved by some writing are void. But the court has repeatedly held that the statute in question refers to express trusts and has no reference to what are called trusts ex maleficio, which .are a species of implied or constructive trusts -which, equity impresses upon property in the hands of one who has obtained it through fraud, in order to administer justice between the parties. Ammonette v. Black, 73 Ark. 310; Lacotts v. Lacotts, 109 Ark. 335; Spradling v. Spradling, 101 Ark. 451; McDonald v. Tyner, 84 Ark. 189; Ussery v. Ussery, 113 Ark. 36; Veasy v. Veasy, 110 Ark. 389; Hunter v. Field, 114 Ark. 128; Harbour v. Harbour, 103 Ark. 273. A clear statement of the rule that a trust ex maleficio is not within the prohibition contained in a section of a statute of frauds similar to our statute is made in Church v. Ruland, 64 Pa. 432. At that time that court was composed of Thompson, -C. J., Agnew and Sharswood, JJ., all being learned and able judges. Judge Sharswood delivered the opinion of the court, and in regard to the question under consideration said: “Indeed it is not easy to see how such a trust ever could be made out except by parol evidence, and if this is not competent, a statute made to prevent frauds would become a most potent instrument whereby to give them success. That this doctrine is applied to cases arising under wills where a person procures a devise to be made in his favor on the distinct declaration or promise that he will hold the land in trust either in whole or in part for another may be seen in the cases referred to in 1 Jarman, 356; 1 Story’s Equity, par. 256. It is not affected by the statutory provisions on the subjects of wills. The proof offered is not of any alteration, revocation or cancellation, which must be evidenced in a particular manner. It gives full effect to the will and every word of it, and to the conclusiveness of the probate, where it is conclusive. It fastens upon the conscience of the party, having thus procured a will, and then fraudulently refusing or neglecting to fulfill the promise on the faith of which it was executed, a trust or confidence, which a court of equity will enforce by compelling a conveyance when the proper time for it has arrived; and with us in Pennsylvania such a conveyance will be considered as having actually been made, whenever it ought to have been made. Tbe cestui que trust will be entitled to recover in ejectment against tbe trustee, and all in privity with him. This was decided in Hoge v. Hoge, 1 Watts, 163, a case fully and ably argued and considered, both by the counsel engaged in the cause and by the court, as appears in the elaborate opinion by Chief Justice Gibson. It was there held that if a testator be induced to make a devise, by the promise of the- devisee that it should be applied to the benefit of another, a trust is thereby created which may be established by parol evidence; and, that this is not contrary to the statute of wills. ‘It is contended,’ said Gibson, C. J., ‘that parol evidence of a trust is contrary to our statute of wills, which corresponds as far as regards the point in dispute, with the British statute of frauds. Undoubtedly every part of a will must be in writing; and a naked parol declaration of trust in respect of land devised is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee to get at him; and there is nothing in reason or authority to forbid the raising of such a trust, from the surreptitious procurement of a devise.’ To the same effect is Jones v. McKee, 3 Barr 496, S. C., 6 Barr 425, a case the same in principle and very similar in its facts to that presented upon this record.” Other cases sustaining the rule are the following: Ransdel v. Moore (Ind.), 53 L. R. A. 753; Owings’ Case (Md.), 17 Am. Dec. 311; Gaither v. Gaither, 3 Md. Chy. 158; Williams v. Vreeland, 32 N. J. Eq. 734; Trustees of Amherst College v. Ritch, 37 L. R. A. 305; Gilpatrich v. Glidden (Me.), 2 L. R. A. 662; Collins v. Hope, 20 Ohio 493; Towles v. Burton, 24 Am. Dec. (S. C.) 415; Richardson v. Adams (Tenn.), 10 Yerg. 273; Brook v. Chappell, 34 Wis. 405; Robinson v. Lewis (Miss.), 24 Am. St. Rep. 254; Curdy v. Berton, 5 L. R. A. (Cal.), 189; Winder v. Schotey, 21 A. & E. Ann. Cas. (Ohio.), 1379, and note; Caldwell v. Caldwell, 7 Bush (Ky.), 517; Laird v. Vila (Minn.), 106 Am. St. Rep. 420; Dowd v. Tucker, 41 Conn. 197; Ragsdale v. Ragsdale (Miss.), 11 L. R. A. 316, and Benbrook v. Yancey (Miss.), 51 So. 461. So it may be said that in all such cases the right of relief is founded on fraud; for as said by Lord Eldon in Stickland v. Aldridge, 9 Ves. 516, “The statute was never permitted to be a cover for fraud upon the private rights of individuals.” It is well settled by the above authorities that the parties seeking relief must establish the trust by clear and satisfactory evidence. It is equally well established by them that while a promise is essential it need not be expressly made, for actual co-operation or. silent acquiescence may have the same effect as an express promise. Applying the principles of law above announced to the facts of this case, the question is whether or not appellants have established their case by clear and satisfactory evidence. It is contended by counsel for appellees that J. W. Stuart under the terms of his will left his property absolutely to his wife, and that, on account of his confidence in her, he placed his whole property within her unlimited control. They point to the fact that this is not surprising when it is considered that they had lived together forty-eight years, and that she was the mother of his children, having the same interest with himself in making provision for their wants. They claim that there is nothing whatever in her acts or conduct, either before or after the making of the will, that can be construed as a fraud upon the rights of appellants. It is true she did not solicit her husband to make a will in her favor, but in deciding the question of fraud we must take into consideration the position, condition and relation of the parties at the time the will was executed. "When told that there was no hope of him recovering from his injuries, J. W. Stuart at first broke down and wept. But he soon recovered and began to talk about how he wanted his property disposed of. He had talked at various times about making a will and disposing of his property but had neglected to do so. His wife and children were around his bedside. He began to discuss the disposition of Ms property, and mentioned what improved farms he wanted his children and grandchildren to have. He then told how he wanted his timber lands divided and took up his personal property in detail and provided for a division of that. He recognized that his wife -had been a hard-working woman, and seemed to, wish to give her such an amount of Ms property as would support her comfortably and would entail upon her but little care and labor in looking after it. Hence he decided to give her the home place and sufficient personal property to stock it and some money. It was first thought that $4,000 would be sufficient, but upon the suggestion of his brother it was made $10,000. His mind continued to dwell upon a division of Ms property until the next day when he was told by Ms son, J. A. Stuart, that he was too weak to make a division of his property among his children, and that it would be best to make a will leaving all his property to his wife, and that she could make the division in accordance with the directions he had already given. His mind at that time was necessarily greatly weakened as the result of his injuries. He had been accustomed for the past eight or ten years to rely upon his son, J. A. Stuart, as to the legal forms necessary to the transaction of his business. He even signed all of his checks. Under such circumstances, it was natural that he would rely upon his son as to the best method of disposing of his property in his weakened condition. He had already told his children in the presence of his wife how he wanted his property divided, and they all perfectly understood his wishes in the matter. He was induced by the confidence he had in his son and his wife to make a will in which he left all of his property to his wife and made his son his executor. When asked in the course of the preparation of the will as to who should be named as executor, he readily named his son, J. A. Stuart. When he was asked as to whether his son, J. A. Stuart, should give bond, he first hesitated and then said that it would be fair to the other children to require him to give bond. Both before and after the will was executed, he expressed confidence that his wife and J. A. Stuart would carry out his wishes in the division of his property and told his children that there was enough property for all of them. He spoke of his grandchildren in the same connection, and repeatedly said a child was a child, meaning no matter whether it was a child of his own or a child of his children. His wife was constantly at his bedside and acquiesced in the arrangement. She did not actively do anything to induce her husband to make the will in her favor, but her acquiescence under the circumstances amounted to action. She knew that her favorite son, J. A. Stuart, first suggested the will, and that he was extremely anxious that it should be made, even though the attending physicians at first advised against the making of the will and only consented that J. W. Stuart might make it provided it was a short will, leaving all his property to his wife. After her husband’s death, Mrs. Stuart in all things acted upon the advice of her son, J. A. Stuart. She prepared the deeds' to the improved farms in accordance with the directions of her husband and finally delivered them to all the children, including the grandchildren, but took no further steps looking to a division of the property. J. A. Stuart after his father’s death told his sisters that they might induce his mother to make a will leaving out the grandchildren in the disposition of the personal property. Subsequently he had a row with his sisters and determined to leave them out in the division of the timber lands. Mrs. Stuart acted throughout in conjunction with J. A. Stuart and in obedience to his wishes, no matter what came up. The testimony is very extensive, and we have not attempted to set it out in detail. There is little dispute among the witnesses, however, in regard to this point. A careful consideration of the whole record convinces us that it was established by clear and satisfactory evidence that J. "W. Stuart was induced by the promise of his wife, coupled,with the suggestion of his son, that a devise of .all his property to her was a prudent plan in his weakened condition of securing a division of all his property among all his children. To hold otherwise would allow her to take a fraudulent advantage of the weakness and necessities of her husband. It does not make any difference that she intended that the fraudulent advantage secured should be for the benefit of her son, instead of herself. It is also contended that it was not established by clear and satisfactory evidence that J. W. Stuart declared his intention of dividing his money and other personal property among all his children, including his grandchildren. There was testimony tending to show that he-intended to divide his money and other personal property between his living children, but we do not deem it necessary to comment at length on the testimony in this respect. We think it clear from all the evidence that the testator intended that his property should be divided among all his-children, and that he intended that his grandchildren should take the part which would have gone to their deceased parents, had they been living. Both before and after he made his will J. W. Stuart told his children and other friends and relatives who had gathered about him that he had made his will and had made provision for all his children, that there was enough property for all, and that a child was a child, meaning thereby whether that child was living or dead. The decision of the chancellor seems to have proceeded upon the theory that the principles of law above .announced are in conflict with our earlier decisions bearing on the question; and this is the contention of counsel for appellees. We do not think this position is sound. We have carefully examined our previous decisions on the subject, and find them to be in harmony with the views herein 'expressed, and the rule has been variously applied according to the facts in each case. In McDonald v. Hooker, 57 Ark. 632, the court held that oral proof can not be heard to engraft an express trust upon a deed absolute in terms. There a few days before his death the grantor without consideration conveyed his lands by deed to his son-in-law. He was not induced to do so by any-promise made by the son-in-law to hold the lands in trust for the other heirs of the grantor nor did he acknowledge or declare that he held the lands in trust for them. In Ammonette v. Black, 73 Ark. 310, a mother conveyed her lands to her son. The son by will left the lands to a grand-daughter of his mother and her daughter. A nephew brought suit, asking that a trust be declared in his favor. It was _shown by him that the son, after ascertaining that his mother intended to devise the lands to her grandson, in order to frustrate her intentions, told her that wills were easily overthrown and advised her that the best way to accomplish such a purpose was to convey the lands to him and that he would either convey or devise the lands to his nephew, her grandson. The court held that this testimony, standing alone, was sufficient to constitute a trust ex maleficio. Relief was denied the plaintiff, however, on the ground that the evidence introduced in his behalf had been overcome by the evidence in behalf of the defendant. Thus it will be seen that this case clearly recognizes the rule we have laid down in the present case. So, too, in McDonald v. Tyner, 84 Ark. 189, the rule herein announced was expressly recognized. In that case a guardian was short in his accounts with his wards and financially embarrassed in other ways. Two of the sureties on the guardian’s bond insisted upon his conveying his .property to the sureties to indemüify them, and he agreed to do so. One of the sureties had a deed prepared conveying the property to himself, and said that he had purchased it from the guardian after declining to take it in trust for the sureties. On the other hand, the guardian testified that there was no change in the agreement, but only a change in the form of the transaction; that the deed was made by him to the surety to hold the property in trust for himself and the other sureties. The' court said that, if it was a sale, as contended by the surety, the evidence justified it in being held in fraud of creditors. The court further said that, if it was not a sale, then it was fraudulently obtaining a title in form of a sale to himself when in fact it was to be in trust for all the sureties on the guardian’s bond; that this being accomplished by fraud constituted him a trustee ex maleficio, instead of a trustee of an express trust, and took the case out of the statute of frauds. Again, in Spradling v. Spradling, 101 Ark. 451, the land was inherited by the wife from her father, and by agreement upon the part of the wife, without any inducement on the part of her husband, in the division of the land of her father among his heirs, a deed was made to her husband to her part of the land. The majority of the court held that the evidence showed that the wife made a gift of the land to her husband without any improper influence upon his part, and without any intention that he should hold for her benefit. In that case it was claimed that a trust ex maleficio arose from the transaction. The court held that there was no testimony indicating that the husband induced the wife to have the deed made to him by reason of a promise that he would convey the land to or hold it for her children. Thus it will be seen that the rule laid down in the present case was expressly recognized by the court in that case. This is shown by the dissenting opinion in that case. The dissent was not based upon the fact that there was an implied or constructive trust arising by operation of law by reason of the fraudulent conduct of the husband in procuring a deed to be made to himself or his wife’s land by promising to hold the land for his wife’s children by a former husband, but the dissent was based upon the ground that the facts created a resulting trust within the rule laid down in Leslie v. Bell, 73 Ark. 338. In the case of Ussery v. Ussery, 113 Ark. 36, Foster conveyed eighty acres of land to J. M. Ussery, who had married his daughter, Stella. According to the testimony of Foster, no inducement was offered by Ussery for him to execute the deed, and he was not even present •when the deed was executed. Mrs. Foster testified that there was an understanding that Ussery and his wife would move on the land and build a house on it, and that she and her husband would move on an adjoining tract so that they could be near each other. The court properly held that her testimony was not sufficient to warrant the trial court in declaring the existence of a trust ex maleficio. The views we have expressed herein were recognized in Davis v. Sparks, 135 Ark. 412; but the facts were found not to bring the case within the rule. It follows from the views we have expressed that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion.