Aborn v. Padelford

• Decision Date: 03 August 1890
• Citation: 20 A. 297,17 R.I. 143
• Parties: ABORN v. PADELFORD.
• Court: Rhode Island Supreme Court

20 A. 297

17 R.I. 143

ABORN

v. PADELFORD.

Supreme Court of Rhode Island.

Aug. 3, 1890.

Demurrer to bill in equity to establish a trust.

Walter B. Vincent and Geo. B. Barrows, for complainant. Charles P. Robinson, for respondent.

STINESS, J. The complainant, administrator of the estate of Celinda H. Aborn, sets up in this bill that the respondent took certain parcels of real estate as trustee of the intestate, for the rents and profits of which, during the life of said Celinda, he asks an account. The facts set forth in the bill, out of which it is claimed the trust arises, are substantially as follows: In 1861, the intestate and respondent, being sisters, the latter then a married woman, now a widow, were tenants in common, each of an undivided half, in four estates, referred to in the bill as the" Weybosset-Street Estate;" the "Westminster-Street Estate;" the "Wharf Estate;" and the "High-Street Estate." Mrs. Aborn's half of the Weybosset-Street estate was subject to two mortgages to Henry A. Hidden in the sum of $26,500; and her half of the Westminster-Street estate was subject to a mortgage to the Bank of North America in the sum of $9,000. In April, 1861, Messrs. Mount, Hall & Co. brought suit against Mrs. Aborn, attaching her interest in all the above-described property, except the Wharf estate, and obtained judgment for $10,766.25, and costs. At the time of the attachment, the value of her half of the real estate being largely in excess of her incumbrances and indebtedness, she was unable, for want of ready money or other property, to pay off and discharge the mortgages and attachment, and to obtain for herself the benefit of the full value thereof, and to preserve the residue over and above her indebtedness. In view of her embarrassed situation, the respondent, at or about the time of the attachment, "promised and agreed to and with said Celinda to aid her in saving such residue of her estate by ad vancing the necessary money, and buying in, upon the account and credit, and for the benefit, of said Celinda, such undivided interest in said estate, and to hold, manage, and dispose of the same, or the avails thereof, subject to her own claim for reimbursement for her advances and outlays, to the intent and purpose that the residue or balance thereof, over and above such advances and outlays, should inure to the benefit of said Celinda. And the said Celinda relying on such promises and agreement, and reposing confidence in said defendant by reason thereof, and of their close relationship, made no effort or attempt to obtain money aid or assistance from others, or to procure bidders on said property, or otherwise to make any plan or arrangement for preserving her remaining interest." July 27, 1861, Henry A. Hidden sold the Weybosset-Street estate under the power of sale in his first mortgage. C. A. Updike was the purchaser, who conveyed it to Hidden August 2, 1861. Mrs. Aborn made an assignment of all her property to said Hidden, for the benefit of her creditors, December 3, 1861, with power to sell at public or private sale. April 12, 1862, the Bank of North America sold the Westminster-Street estate, under its mortgage, at which sale the respondent bought Mrs. Aborn's interest for the sum of $9,700. September 12, 1862, the interest of Mrs. Aborn in the land attached by Mount, Hall & Co. was sold at sheriff's sale under execution, her interest in the Westminster-Street estate being bought by the respondent for the sum of $51, and her interest in the other estates by J. C. Wilmerding, who conveyed to H. A. Hidden, October 1, 1862, for $1,000. October 29, 1862, the respondent, "in pursuance of said promise and arrangement made with her sister as aforesaid, purchased of said Hidden, for the sum of $30,000, all his (said Hidden's) interest in and to said Weybosset-Street estate;" and also, for $500, all the right, title, and interest which he had as assignee of said Celinda in and to the Wharf lot. October 7, 1862, the respondent sold the whole of the Westminster-Street estate for $30,000, one-half of which sum represented the part which had been owned by Mrs. Aborn. The Wharf lot was taken by the city of Providence, in 1873, for widening Dyer street, and $30 was awarded as compensation for the whole lot. The bill then goes on to set out acknowledgments of the trust by the respondent, orally, in letters, and in accounts, since she acquired the property. The respondent demurs to the bill. The primary question is whether the bill discloses a trust. The principle on which the complainant bases his claim is that "a trust arises when the one who has got the land has been enabled to do it only by dint of his promise to convey it to another, upon the faith of which promise the latter has parted with some interest in the property in question." Browne, St. Frauds, § 96a. Two things must concur in the application of this principle, viz., that one party has been enabled to get the land as he did by virtue of his promise, and that the other has parted with some interest in the land upon the faith of the promise. The cases cited by the complainant fully sustain this rule; to which may be added Jenckes v. Cook, 9 R. I. 520, 525. The surrender of the interest in the land, i.e., the dealing with reference to it, whereby it is purchased at a...