Barron v. Stuart

• Decision Date: 11 November 1918
• Docket Number: (No. 237.)
• Parties: BARRON et al v. STUART et al.
• Court: Arkansas Supreme Court

Page 22

207 S.W. 22

BARRON et al v. STUART et al.

(No. 237.)

Supreme Court of Arkansas.

November 11, 1918.

Concurring Opinion, December 23, 1918.

On Rehearing December 16, 1918.

Appeal from Greene Chancery Court; Archer Wheatley, Chancellor.

Suit by Laura Barron and others against J. A. Stuart and others. Decree for defendants, and plaintiffs appeal. Reversed and remanded.

Appellants, who were the daughters and grandchildren of J. W. Stuart, deceased, brought this suit in equity against appellees, who were the sons and the widow of J. W. Stuart, deceased, and the object of the suit was to establish a trust in certain property devised by said J. W. Stuart to his wife, M. R. E. Stuart. Appellees answered, denying the trust, and averring that the property was left to Mrs. M. R. E. Stuart absolutely under the terms of the will.

J. W. Stuart was born in Greene county, Ark., and lived there all his life. He was 68 years old when he died, and he and M. R. E. Stuart had lived together as husband and wife for 48 years. He left surviving him five sons, two daughters, and the children of three deceased daughters. Neither J. W. Stuart nor his wife, M. R. E. Stuart, were able to read or write; but J. W. Stuart had a strong mind, and possessed to a marked degree the ability to make money. At the date of his death he possessed property variously estimated from $111,000 to $250,000. His property consisted of a number of improved farms, a large tract of wild land, a large number of cattle and horses, a great quantity of corn and cotton, also some wheat, duebills, promissory notes, and a large amount of money deposited with various banks and mercantile establishments in the cities of Paragould and Jonesboro, Ark. During the last 8 or 10 years of his life, his oldest son, J. A. Stuart, signed his name to checks and looked after his business affairs generally.

In July, 1916, J. W. Stuart was kicked by a mare, and died in about 11 days thereafter as a result of his injuries. The mare kicked him on Tuesday, the 18th day of July, 1916, and he died on Friday, the 28th day of July following. Two days after J. W. Stuart was hurt, his son, J. A. Stuart, went to a justice of the peace and brought him to the house for the purpose of preparing and acknowledging a deed from his father to Ab Stuart, his youngest son. On his way up there the justice of the peace met up with the attending physician, who told him that J. W. Stuart was fatally injured and that he ought to make a will. The justice of the peace prepared the deed and took the acknowledgment of J. W. Stuart thereto, as requested. He was then asked to prepare another deed, and declined, because he had no more blank deeds. The attending physician also told J. A. Stuart that his father was not likely to get well. On Thursday night following the injury, the attending physician told J. A. Stuart that he had lost all hope of his father recovering from his injuries. The wife of J. W. Stuart was in constant attendance at his bedside from the time he was injured until he died. His children and grandchildren, a brother, and other relatives were there most of the time after he received his injuries until he died. It was late Thursday night when the attending physician told J. A. Stuart that his father could not recover. J. A. Stuart informed his father and the other children around his bedside that he could not recover. J. W. Stuart broke down and cried, when he was told that there was no chance for him to recover from his injuries. After a little while he rallied and began to talk to his children about the disposition of his property. He called over his farms by name, and told which one he wanted each of his children to have. He also spoke of the timber lands which he owned, and directed how they should be divided. He also directed how the corn and cotton, which was being raised on his various farms that year, should be divided when gathered. He told them how to divide his horses and cattle, and the money and other personal property which he possessed. He wanted his wife to keep the home place and certain stock on it and $10,000 in money. His idea seemed to be to divide up his property among his children and to give his wife sufficient to live on in comfort, so that she would not have to work any more, or be worried with looking after a lot of property.

On the next morning it was suggested that he was too weak to be bothered with the details of dividing his property, and that he should make a will, leaving all his property to his wife, and that she could divide it after his death in accordance with the directions which he had already given. Such a will was executed on Friday morning. On their way home, the lawyers who had written the will remembered that it was void under our statutes, because the children had not been mentioned in it. They returned again on Saturday, and explained this defect to the parties interested. J. W. Stuart was better then, but executed another will, leaving all his property to his wife as in the first one. He died on the following Friday, living only one week after executing the first will. After his death his wife executed deeds to the various children and grandchildren to the improved farms, as had been directed by her husband in his lifetime; but she refused to execute a deed to her daughters and her grandchildren to any of the timber lands, or to divide the personal property equally between all the children. She expressed her intention of holding the property absolutely and dividing it among her children as she liked. She denied that she had received the property in trust, but claimed it absolutely as her own under the will. Hence this lawsuit. Other facts will be stated and referred to in the opinion.

The chancellor found that the trust attempted to be established by the will was void under our statute of frauds, and it was decreed that the complaint of appellants should be dismissed for want of equity. The case is here on appeal.

Tom D. Patton, of Muskogee, Okl., and Block & Kirsch and Huddleston, Fuhr & Futrell, all of Paragould, for appellants.

Lamb & Frierson and Hawthorne & Hawthorne, all of Jonesboro, for appellees.

HART, J. (after stating the facts as above).

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, 83 S. W. 910; La Cotts v. La Cotts, 109 Ark. 335, 159 S. W. 1111; Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848; McDonald v. Tyner, 84 Ark. 189, 105 S. W. 74; Ussery v. Ussery, 113 Ark. 36, 166 S. W. 946; Veasey v. Veasey, 110 Ark. 389, 162 S. W. 45; Hunter v. Field, 114 Ark. 128, 169 S. W. 813; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867.

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., and 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, and 1 Story's Equity, § 256. It is not affected by the statutory provisions on the subject 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. The cestui que trust will be entitled to recover in ejectment against the trustee, and all in privity with him. This was decided in Hoge v. Hoge, 1 Watts [Pa.] 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...