Botsford v. Bradfield

Grant, J. (after stating the facts). The court instructed the jury that: “The evidence in relation to the declaration of trust is given for the most part by Mr. Turner. The declaration of trust, if one was made by Mrs. Turner in her lifetime, [374] was made to him; and it is from his evidence, and all the surrounding circumstances, that you must find, if you find a declaration of trust.” The above instruction left the jury to infer that there were circumstances to sustain the testimony of Mr. Turner, and to show that Mrs. Turner held the notes and securities in trust for plaintiff. In fact, there were no such circumstances. On the contrary, all the circumstances refuted any theory of a gift or trust. Mrs. Turner retained during her lifetime the absolute and exclusive control of the notes, and regularly collected the interest thereon. They were kept with her other securities and evidences of property. Plaintiff lived in Port Huron, Mich., and Mrs. Turner in Grand Rapids. Plaintiff visited her, and made a visit at about the time she alleges the promise was made to deliver them to her. Many letters passed between them, and in no one did Mrs. Turner refer to any intention to forgive plaintiff the debt. Plaintiff was not related to her by blood, yet in her will she placed her upon the same basis with her blood relatives. It is to be presumed that Mrs. Turner, a person of long and great business experience, knew what was essential to transfer title to her property, both real and personal. Her will made no mention of these notes. She made a handsome bequest to plaintiff in her will. She made iao mention of the matter to her close friend, neighbor, and executor, Dr. Bradfield, or to any other of her friends. She made no indorsement upon the notes. She did not need the interest for her support. All her acts and conduct, from the time the notes were given to the time of her death, were consistent only with her absolute ownership. If there was any question for the jury, they should have been instructed that Mr. Turner’s testimony constituted the sole evidence tending to sustain the plaintiff’s claim, and that all the circumstances were in direct hostility to the claim. The plaintiff’s petition to the probate court for an order that these securities be delivered up to her by the execu [375] tors cannot be used as evidence in her favor, but may be used as evidence against her. She there stated her claim, and it was put in writing by her attorney. That petition does not state a gift causa mortis or inter vivos, or show a trust. It shows only a promise to deliver the notes to her, which it is alleged Mrs. Turner was prevented from doing by the distance between them and an unforeseen attack of disease, and states that it was understood and agreed that the said notes and securities should be returned to the plaintiff. The petition shows only a promise or an executory agreement without consideration and wholly void. • It is but just that she should be bound by the record she thus deliberately made. Under the rulings of the court and the admission of counsel, there was no gift, and plaintiff now seeks to maintain her title to these notes upon the ground that there Was an executed trust, which, if sustained, must be based upon the statements which the witness Charles M. Turner testified she made to him. This court said (Hamilton v. Hall’s Estate, 111 Mich. 296): ‘ ‘ It [the declaration of trust] must be such that, from the time it is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the terms of the declaration of the trust itself.” ' If Mrs. Turner in her lifetime had declared her intention to sell and transfer these notes, could plaintiff have maintained an injunction to restrain such action, or, if she had actually sold them, could plaintiff have maintained trover against her for their value, on the strength of the testimony of Mr. Charles M. Turner ? What consideration could she have shown for the transaction? There was no act or writing on the part of the deceased to indicate that she intended to part with her property. The declaration on her part that these notes belonged to the plaintiff, and that when she was dead she wanted them surrendered to plaintiff ánd not made a part of her estate, [376] would not have been sufficient to pass title or give her any equitable enforceable interest. It .may have been the intention of Mrs. Turner to forgive plaintiff the debt upon her death. It is very probable that she concluded to give her more than this debt, and place her on the same basis with her blood relatives by her will, which she did, and that she therefore left these notes as a part of her estate: However this may be, there is nothing in the record to show an executed trust, such.as is essential to maintain a suit at law. The case is ruled in principle by Trombly v. Klersy, 139 Mich. 209; Trombly v. Klersy, ante, 73; Clay v. Layton, 134 Mich. 317. The court should have directed a verdict for the defendants. Judgment reversed, and new trial ordered. Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.