Church v. Ruland

• Decision Date: 24 March 1870
• Citation: 64 Pa. 432
• Court: Pennsylvania Supreme Court
• Parties: Church and Wife <I>versus</I> Ruland and Wife.

64 Pa. 432

Church and Wife versus Ruland and Wife.

Supreme Court of Pennsylvania.

March 14, 1870.

March 24, 1870.

March 14th 1870.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Error to the Court of Common Pleas of Luzerne county: Of January Term 1870.

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Lamberton, Winton and Kulp, for plaintiffs in error.—Edmund Griffin took the land without notice, and therefore clear of the trust: Scott v. Gallagher, 14 S. & R. 333; Peebles v. Reading, 8 Id. 495. The purchaser of his title at a judicial sale takes it in the same way: Bracken v. Miller, 4 W. & S. 102; Act of June 16th 1836, § 66, Pamph. L. 773, Purd. 443, pl. 78; Arnold v. Gore, 1 Rawle 227. The claim should have been pursued within a reasonable time: Prevost v. Gratz, 1 P. C. C. Rep. 373; Leisenring v. Black, 5 Watts 304. Parol declaration of trust must be contemporaneous with the act: Edwards v. Edwards, 3 Wright 378; Rearick v. Rearick, 3 Harris 66; Lingenfelter v. Ritchey, 8 P. F. Smith 488; Irvin v. Irvin, 10 Casey 525; Hoshauer v. Hoshauer, 2 Id. 407. The court should reject all evidence of trust against the legal title which would not induce a chancellor to decree a conveyance: McBarin v. Glass, 13 Wright 162; Emerick v. Emerick, 3 Phila. R. 94. The subject of the trust was not specific as in Hoge v. Hoge, 1 Watts 63; Jones v. McKee, 3 Barr 96. The probate of a will is conclusive as to real estate after five years: Act of April 22d 1856, § 7, Purd 275, pl. 13; Kenyon v. Stewart, 8 Wright 180; Kenyon v. Ashbridge, 11 Casey 157. The trust was not executed within five years: Act of 1856, supra, § 6, Purd. 655, pl. 13. The conveyance, although in Letta's lifetime was a disaffirmance of the trust and should have been pursued within the time limited by law: Lyle v. Richards, 9 S. & R. 449; Williams on Real Prop., 27 Co. Litt. 362. The probate of Thomas Griffin's will has become conclusive: Spangler v. Rambler, 4 S. & R. 193; Smith v. Bursall, 5 Rawle 86; Rowland v. Evans, 6 Barr 441; Allen v. Dundas, 3 T. R. 130; Archer v. Morse, 2 Vern. 8 & 9; Bacon Abr. title Wills; Thompson v. Thompson, 9 Barr 234; Barker v. McFerran, 2 Casey 213; Holliday v. Ward, 2 Harris 490; 1 Williams on Ex., § 450; Warfield v. Fox, 3 P. F. Smith 384; 1 Jarman on Wills 21, note; Gable v. Daub, 4 Wright 217.

W. G. Ward, A. Hand and Wright & Harrington, for defendants in error.—Although a will has been conclusively established by the probate, it may be affected with a trust: 1 Williams on Exrs. 341, 342; 1 Jarman on Wills 22 and note, 23; Gawler v. Slanderwick, 2 Cox 16; Barrow v. Greenough, 3 Vesey 152; Bym v. Godley, 4 Id. 11; Strickland v. Aldridge, 9 Id. 516; 1 Story's Eq. Jur., § 256, note 1-4; Porter v. Mayfield, 9 Harris 264; Irons v. Burns, 6 P. F. Smith 301.

Parol evidence is admissible to charge a trust upon an executor or a devisee who has prevented the testator from making provision in his will by expressly and verbally undertaking with the testator to fulfil his wishes in that respect, or by fraudulently inducing him to make a new will without such provision: 3 Greenl. Ev. § 365; 1 Story's Eq. Jur. §§ 252, 256; 2 Id. § 781; 3 Woodeson's Lectures 261; 4 Kent's Com. 305 and note a; 2 Crabb on Real Property 1768 and notes; Ward on Legacies 14, 15; Powell on Devises 512, 513 and notes; Lewin on Trusts 38, 39; Law of Trusts, &c., by Tiffany & Ballard 189 et seq.; 1 Jarman on Wills 350; Chit. on Contracts 56; Addison on Contracts 844; 2 Washburn on Real Property 178; Mestear v. Gillespie, 11 Ves. 638; Thompson v. White, 1 Dall. 447; German v. Gabbald, 3 Binn. 302; Drum v. Simpson, 6 Id. 478; Slaymaker v. St. John, 5 Watts 30; Hoge v. Hoge, 1 Id. 162; Sheriff v. Neal, 6 Id. 541; Miller v. Peirce, 6 W. & S. 100; Rearick v. Swineheart, 1 Jones 240; Jones v. McKee, 3 Barr 496; McKee v. Jones, 6 Id. 427; Lloyd v. Carter, 5 Harris 220; Williard v. Williard, 6 P. F. Smith 124.

If Letta Griffin sold wrongfully, she bought back charged with the trust if the heirs of C. Stevens so elected, and they can claim the benefits of her repurchase: Law of Trusts by Ballard & Tiffany 555; Noel v. White, 1 Wright 523.

The sale of real estate and securing of balance of purchase-money by a mortgage form one transaction, and a sale upon a judgment recovered upon a bond accompanying the mortgage, where the vendor is the purchaser, places the parties in their original position: Chew v. Mather, 1 Penna. R. 474; Episcopal Academy v. Frieze, 2 Id. 16; Love v. Jones, 4 Id. 465; Horbach v. Riley, 7 Barr 81; Kerr v. Stiffey, 2 Penna. R. 176. The cestui que trust may follow the trust-money into land purchased with it by the trustee: 3 Washburn on Real Property 187, § 47; Kilpatrick v. McDonald, 1 Jones 393.

Woodward, for plaintiff in error, in reply.—Ejectment has been sustained in Pennsylvania to enforce the execution of a parol trust, on the principle that equity considers that done which ought to be done. But by various Acts of Assembly since 1836, full chancery powers have been conferred on our courts and suitable forms of procedure prescribed. By Act of March 21st 1806, Purd. 41, where a remedy is provided or duty enjoined, &c., by an Act of Assembly, the act must be strictly pursued. Our equitable ejectment should be considered as taken away by the statutes conferring the chancery powers.

The enforcing of this trust would repeal Thomas Griffin's will. His will cannot be repealed; nor "any devise or direction altered," but by some other will, &c., Act of April 8th 1833, § 13, Purd. 1017. Further, Letta's title is confirmed by the acts of ownership exercised by her, for many years in sight of the cestuis que trust, who, if they could not have taken possession during her life, could have had relief in equity: Hill on Trustees 168; Smith v. Clay, Bro. C. C. 639; Beckford v. Wade, 17 Vesey 97. The Act of 22d April 1856, supra, 4 and 7 sections, bars the plaintiffs.

The heirs of Charlotte Stevens were bound to come in within two years after this act, to impeach Thomas Griffin's will. The trust must under the act be manifested in writing. The proof of what took place at the time the will was made is contrary to the trust, instead of for it. If an agreement was made afterwards, it is nudum pactum — it is opposed to the policy and letter of the statutes, and is not within any of the modes in which a resulting trust can arise, viz., a purchase is in the name of another; where there is a voluntary conveyance with no trust declared, and where the conveyance is on trusts which are not declared; or are only partially declared or fail. The testator must sufficiently express his intention that the donee should take only in trust for others: Meredith v. Heneage, 1 Sim. 555; Wood v. Cox, 2 M. & Cr. 692. A trust is never presumed except in case of absolute necessity Cook v. Fountain, 3 Swanst. 585; Padmore v. Gunning, 7 Sim. 644; Porter v. Mayfield, 9 Harris 263; Barnet v. Dougherty, 8 Casey 371; Bennett v. Fulmer, 13 Wright 155; McBarron v. Glass, 6 Casey 133.

It is submitted that the most thorough examination of the authorities will establish these two propositions as the very mind of the law: —

1. Before the Statute of Wills, 1 Vict. c. 26, § 9, chancellors treated resulting trusts upon the Statute of Frauds, 29 Car. 2, holding that a statute to prevent frauds must not become an instrument of fraud, they admitted parol evidence freely to discover the real intention of the testator, and thus to give his will the very effect he intended it should have.

2. But since the Statute of Wills, both in England and this country, the field of parol evidence has been greatly narrowed, and is continually narrowing. A testamentary trust, to be made out by parol, must have its root in the will. The instrument, construed by its four corners, must betray the intention of the testator that his donee was to take a qualified interest — something less than an absolute estate.

The opinion of the court was delivered, March 24th 1870, by SHARSWOOD, J.

It cannot be maintained, at this late day, that the effect of investing the courts with separate equity powers, to be exercised according to the mode of proceeding in use in the English Court of Chancery, was to divest them of any part of the jurisdiction before possessed by them to afford the same relief through common-law forms. Equity is still as much a part of the law of Pennsylvania as it was in 1787, when Chief Justice McKean so declared it to be in Pollard v. Shaafer, 1 Dall. 210; Lehr v. Beaver, 8 W. & S. 106. The action of ejectment may still be employed as a remedy to compel the specific performance of a contract for the sale of land, or to enforce a trust in regard to it. Every volume of reports since 1836 abounds with the evidence of this in the determination of numerous cases in which it has been silently assumed. Besides, it was expressly so decided in Aycinena v. Peries, 6 W. & S. 257, Biddle v. Moore, 3 Barr 161, and Corson v. Mulvany, 13 Wright 88, so that if any point is ever to be considered completely at rest, it is this. Nor is such an administration of equity justly open to the reproaches cast upon it in the oral argument of this case. It is not the substitution of twelve unlearned chancellors for a lawyer prepared for his office by the lucubrations of twenty years. The judge in reality is the chancellor with the assistance of a jury. It is not like other ordinary trials at law, where any evidence reasonably tending to prove a fact, must be submitted to be passed upon by that tribunal. The conscience of the judge as chancellor must be satisfied and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide upon the force and effect of conflicting testimony. What is this but the trial of a feigned issue out of chancery? If the evidence is too vague,...