Carey v. Callan's Ex'r

• Decision Date: 23 September 1845
• Parties: Carey v. Callan's Executor, & c.
• Court: Kentucky Court of Appeals

45 Ky. 44

Carey v. Callan's Executor, & c.

Court of Appeals of Kentucky.

September 23, 1845

Trusts. Evidence. Will case. Instructions.

ERROR TO THE LOUISVILLE CHANCERY COURT.

Duncan and Ripley for plaintiffs.

OPINION

MARSHALL JUDGE:

The case stated.

IF the sole object of this bill had been to establish a resulting trust in the estate of John Callan, deceased, in favor of the complainants, his sisters, on the ground that he had expended in its acquisition, some amount of money derived from the estate of their common father, and that he had been aided in preserving and increasing it by the labor and care of his sisters, we should be of opinion, that upon the pleadings and proofs, the complainants had failed in making out a case for relief. The main fact on which the claim is founded, viz: the receipt of funds from the father, thirty or forty years ago rests upon no other evidence, but the statements of some three or four witnesses, professing to detail, in general terms, the declarations or admissions of John Callan declarations not entirely consistent in themselves, directly contradicted by other declarations of his also admitted in evidence, and uncorroborated by any circumstance in the cause. While, on the other hand, the fact that no body proves that the father had any property or money, or profitable occupation, but it is abundantly shown, that John Callan had a good trade, which he carried on industriously and extensively; that he took his parents and sisters into his house, and that from time to time he purchased lots in Louisville, the appreciation of which made him rich, tend sufficiently to account for the acquisition of his fortune by his own industry and good management, and to exclude any inference of its having been founded upon means derived from his father. Besides, if his sisters were entitled to a share of his acquisitions, why did they not assert their right in a Court of Justice, before his death? If at one time they had reason to suppose he would leave his property to them at his death, still they might have had to wait long for that event, and might have died before him. But even this expectation must have been weakened and destroyed by his marriage, and by the alienation of feeling, which for years before his death, had existed on his part towards them, and which increasing with the lapse of time, was accompanied by repeated declarations that he would not give his property to them.

If after so great a lapse of time, the trust now claimed could have been established by parol, it could only have been by clear and explicit evidence of the facts from which it was supposed to result. And in this the complainants have wholly failed. The evidence amounts to nothing towards divesting a title evidenced by solemn deeds and records, and enjoyed without disturbance for a long series of years.

Parol proof to establish a resulting trust, after great lapse of time, should be clear and explicit.

2. But the bill was filed especially, if not exclusively, for the purpose of contesting the validity of the will of John Callan, under the 11th section of the act relating to the execution and probate of wills. And it is contended, that upon the issue of will or no will, which was properly submitted to the jury, in the general terms of an issue of devisavit vel non, the evidence relating to the manner in which the testator acquired the funds with which he purchased his property, should have been left to the jury and that the Chancellor erred in excluding it. But if, as already said, the evidence on this subject was wholly insufficient to affect the title with a trust, if under all this evidence, the property belonged, in law and equity, to John Callan, he had a perfect right to dispose of it as he pleased, and what bearing should such evidence have had on the issue, whether the paper before the jury was his will or not? It might indeed have perplexed and disturbed their minds, and withdrawn them from the proper issue, but how could it elucidate the question before them? If the evidence established the trust beyond a doubt, the consequence would be, not that the will should not be established in the course of probate, but that the devisees would, in a Court of Equity, be held bound by the trust, as the testator had been. As certain and satisfactory evidence of the facts from which the trust would result, ought not to affect the question of probate, it would seem a fortiori that it ought not to be affected by uncertain and doubtful evidence of the same facts. It may be said that one of charges being, that the will was procured by the fraud, flattery and undue influence and importunity of the principal devisees, to the partial disherison of the testator's brother and sisters, it is material and admissible to show the obligations and duty which he owed to these near relations, as laying a foundation for the inference that the will being in violation of this duty, was improperly procured. But if the natural duty arising out of the relation itself is not sufficient to establish this...