Bliss v. Bliss

• Decision Date: 02 November 1911
• Citation: 119 P. 451,20 Idaho 467
• Parties: IDA BLISS, in Her Own Behalf, and as Guardian of NAOMI BLISS, a Minor, Respondents, v. FRIEND J. BLISS and ADELAIDE BLISS, Appellants
• Court: Idaho Supreme Court

119 P. 451

20 Idaho 467

IDA BLISS, in Her Own Behalf, and as Guardian of NAOMI BLISS, a Minor, Respondents, v. FRIEND J. BLISS and ADELAIDE BLISS, Appellants

Supreme Court of Idaho

November 2, 1911

GIFT-VOLUNTARY TRUST-MANNER OF CREATING-NECESSARY ELEMENTS-LIFE INSURANCE POLICY-BENEFICIARIES AS TRUSTEES UNDER.

(Syllabus by the court.)

1. A declaration of intention to make a gift unaccompanied by a transfer or delivery of the property is no gift at all and cannot be enforced by the courts.

2. No exact words or terms are necessary to establish a trust, but a voluntary trust cannot be complete unless there is reasonable certainty as to the manner in which the trust fund is to be used or applied, and the purposes of the trust must be plainly indicated.

3. Vague and indefinite expressions, or mere words of recommendation or sentiment, will not be held to create a trust or define its scope. The proof of intention to establish the trust must be unequivocal.

4. Where a son had before his marriage insured his life, naming his father and mother in the insurance policy as beneficiaries, and subsequent to marriage declined to change the beneficiaries in such policy, but expressed to the father the hope and expectation that the father and mother would "take care of his family in case of death and never allow them to want for anything," such words are not sufficient to establish a trust or fix its terms.

5. Courts of equity may declare and enforce a trust, but they have no authority to create a trust or to make a contract for the parties where they did not see fit to make the contract themselves, under circumstances where no trust could be implied or result by operation of law.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action by the plaintiff to have a trust declared. Judgment for plaintiffs and defendants appealed. Reversed.

Reversed and remanded. Costs awarded to appellants.

Henry Z. Johnson, and John T. Morrison, for Appellants.

The evidence required to entitle plaintiff to a decree declaring a resulting trust must be satisfactory, clear and convincing. (Rice v. Rigley, 7 Idaho 129, 61 P. 290, 20 Morr Min. Rep. 553; 2 Pom. Eq. Jur., 1st ed., sec. 1040; 10 Am. &amp Eng. Ency. of Law, 1st ed., 29; Pitts v. Weakley, 155 Mo 109, 55 S.W. 1055.)

"In the creation of a trust in personalty, the language employed must be definite and positive. . . . The declaration of a purpose to create a trust is of no value, and a promise to make a donation at some future time, where there is no consideration, at best, is only an imperfect gift and will not be upheld as a trust." (1 Beach on Trusts and Trustees, sec. 52; Skeen v. Marriott, 22 Utah 73, 61 P. 296.)

"The courts will not interpose to perfect an inadequate or incomplete creation of a trust." (1 Beach on Trusts and Trustees, sec. 41; Estate of Webb, 49 Cal. 541; 2 Pom. Eq. Jur., 1st ed., pp. 548, 549.)

The court erred in permitting the plaintiff, Ida Bliss, to testify to conversations she overheard between the deceased and third parties respecting his, the deceased, purpose in carrying insurance. (Austin v. Wilcoxson, 149 Cal. 24, 84 P. 417, 418.) Also in admitting her testimony that Bliss told her that the deceased said he would not change it, he would leave it, the insurance money "on trust with them [the defendants] for us." Such evidence was clearly incompetent and inadmissible, and would be entitled to little or no consideration even if it were otherwise legal evidence. (Pitts v. Weakley, supra.)

A voluntary executory agreement to create a trust in futuro cannot be enforced in equity. (Estate of Webb, 49 Cal. 541; Allen v. Witherow, 110 U.S. 119, 3 S.Ct. 517, 28 L.Ed. 90; Martin v. Funk, 75 N.Y. 134, 31 Am. Rep. 446; Young v. Young, 80 N.Y. 422, 36 Am. Rep. 634; Milroy v. Lord, 4 De Gex, F. & J. 264; Estate of Smith, 144 Pa. 428, 27 Am. St. 641, 22 A. 916; Williamson v. Yeager, 91 Ky. 282, 34 Am. St. 184, 15 S.W. 660.)

Evidence to establish a trust must be clear, distinct, convincing and uncontradictory, and especially so when it is proposed to establish it by parol. (Snider v. Johnson, 25 Ore. 328, 35 P. 846; Allen v. Witherow, 110 U.S. 119, 3 S.Ct. 517, 28 L.Ed. 90; De Roboam v. Schmidtlin, 50 Ore. 388, 92 P. 1082; Skeen v. Marriott, 22 Utah 73, 61 P. 296; 1 Perry on Trusts, 5th ed., sec. 86, citing cases.)

Hawley, Puckett & Hawley, for Respondents.

"No particular form of words is necessary to create a trust." (Gerrish v. New Bedford Inst., 128 Mass. 159, 35 Am. Rep. 370; 5 Ency. of Law, 2007; Robb v. Washington etc. College, 103 A.D. 327, 93 N.Y.S. 92; Hirsh v. Auer, 146 N.Y. 13, 40 N.E. 397.)

A life insurance policy's proceeds may be made the subject of a trust. (Silvey v. Hodgdon, 52 Cal. 363; Austin v. Wilcoxson, 149 Cal. 24, 84 P. 417; Roach v. Caraffa, 85 Cal. 436, 25 P. 22; Woodruff v. Tillman, 112 Mich. 188, 70 N.W. 420; Hurd v. Doty, 86 Wis. 1, 56 N.W. 371, 21 L. R. A. 746; Cowin v. Hurst, 124 Mich. 545, 83 Am. St. 344, 83 N.W. 274; Bancroft v. Russell, 157 Mass. 47, 31 N.E. 710; Kendrick v. Ray, 173 Mass. 305, 73 Am. St. 289, 53 N.E. 823.)

Anything which is relevant to show the intention of the donor of the trust is admissible, including his statement. (Gerrish v. New Bedford Inst., supra; Clark v. Callahan, 105 Md. 600, 66 A. 618, 12 Ann. Cas. 162, 10 L. R. A., N. S., 616, and annotations.)

It is not essential for the creation of a valid trust that the trustee either know of or consent to the trust. (25 Ency. of Law, 896; Swenson v. Swenson, 17 S.D. 558, 97 N.W. 845; Koche v. Streuter, 232 Ill. 594, 83 N.E. 1072; Wells v. German Ins. Co., 128 Iowa 649, 105 N.W. 123.)

The existence of a complete trust is in every case to be determined as a question of fact, having in view the surrounding facts and circumstances of the transaction, the intention of the parties, and the substance rather than the form of the instrument.

It is a question largely for the court to decide whether or not the evidence must be clear, satisfactory and convincing. ( Austin v. Wilcoxson, 149 Cal. 24, 84 P. 417; Noble v. Learned, 153 Cal. 245. 94 P. 1047; Bollinger v. Bollinger, 154 Cal. 695, 99 P. 196; Freese v. Hibernian Savings etc. Society, 139 Cal. 394, 73 P. 172.)

AILSHIE, J. Stewart, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, J.

This action was instituted praying a judgment and decree declaring Friend J. Bliss and Adelaide Bliss trustees of the proceeds of a certain life insurance policy for the use and benefit of the plaintiffs, Ida Bliss and Naomi Bliss, a minor. Ida Bliss is the surviving widow of one Ezra Ray Bliss, now deceased, and Naomi Bliss is the daughter and minor child of Ida Bliss and Ezra Ray Bliss. The appellants, Friend J. Bliss and Adelaide Bliss, are the father and mother of Ezra Ray Bliss, deceased. On the 23d day of June, 1904, Ezra Ray Bliss, being then unmarried, took out a life insurance policy in the Bankers' Reserve Life Co. of Omaha, Neb., for $ 5,000, and caused his father and mother, the appellants herein, to be named as the beneficiaries under that policy. Thereafter and on the first day of January, 1907, Ezra Ray Bliss was married to the respondent, Ida Bliss. Thereafter and on the first day of November, 1907, there was born to respondent, Ida Bliss, and Ezra Ray Bliss, a daughter, Naomi Bliss, who is the other respondent in this case. The policy of insurance was deposited by Ezra Ray Bliss with the First National Bank of Emmett for safekeeping, and it remained in the custody of the bank from that time until after the death of the insured, which occurred on the 3d day of February, 1908. The policy was thereafter delivered to the appellants herein and was by them collected from the insurance company. This suit was subsequently instituted by the wife of the deceased and the infant daughter to have the beneficiaries named in the policy declared to be trustees for the use and benefit of the wife and daughter of the deceased. The trial resulted in a judgment in favor of the plaintiffs, and the defendants prosecuted this appeal.

The question to be determined on this appeal is: Was there sufficient evidence to justify the trial court in decreeing and declaring a trust in this case, and does the evidence show that the beneficiaries named in the policy were ever constituted trustees, or did they take the absolute title to the benefits under the policy? The evidence in the case is entirely oral. No evidence of any trust was ever reduced to writing. The oral testimony furnished is exceedingly meager and desultory. It all revolves about and refers back to a conversation which took place between Ray, the insured, and his father, one of the beneficiaries, shortly subsequent to the birth of respondent's child, Naomi. Ida Bliss testified that after the death of her husband her father in law told her that a short time after the birth of Naomi, when he and Ray were out duck hunting, that he approached his son on the subject of changing the beneficiaries in his insurance policy. She testifies that her father in law repeated the conversation to her as follows:

"'While Ray and I were out duck hunting one time,'--I believe it was in October or November, I am not sure which, probably September, 1907, 'I insisted on Ray changing the policy since he had a wife now'--and I believe it was after the baby was born. He said, 'You have a wife and family now you should change your policy; you can't tell what is going to happen to you.' And Ray said, 'No, father, I am perfectly satisfied the way it is; I intend to leave it that way.' He insisted on his changing it, but Ray said he knew--in his exact words, 'I know you and mother will take care of my family in case of my death, and...