Clester v. Clester

• Decision Date: 08 November 1913
• Docket Number: 18,124
• Citation: 90 Kan. 638,135 P. 996
• Parties: JAMES CLESTER et al., Appellants, v. IDA M. CLESTER et al., Appellees
• Court: Kansas Supreme Court

135 P. 996

90 Kan. 638

JAMES CLESTER et al., Appellants, v. IDA M. CLESTER et al., Appellees

No. 18,124

Supreme Court of Kansas

November 8, 1913

Decided April 12, 1913; July, 1913.

Appeal from Sumner district court; A. M. JACKSON, judge pro tem. Opinion filed April 12, 1913. Affirmed. Rehearing allowed May 16, 1913. Opinion on rehearing filed November 8, 1913. Reaffirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONVEYANCE--Husband to Wife--No Trust by Implication. The mere fact that a conveyance is between husband and wife or parent and child or between persons occupying similar intimate relationships, and that no valuable consideration passes, is not sufficient to raise a trust by implication. There must be fraud, active or constructive, some betrayal of a confidence reposed or some breach of duty imposed by such relation. Neither character of fraud will be presumed from the fact alone that the relationship of the parties is such as to suggest that a fiduciary relation might have existed.

2. TRUSTS--When Constructive Trust Arises--Equity. A constructive trust will arise whenever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title, but equity has no power to declare a trust and enforce it to prevent injustice merely because the transaction results inequitably to other parties.

3. Inequitable Conveyance to Wife--Equity Powerless to Raise a Trust by Implication. However harsh or unjust or inequitable it may appear for a husband to make a gift to his second wife of his real estate and thus deprive the children of his first marriage of all interest therein, even though he acquired the real estate from moneys derived from their mother's separate property, equity is powerless to raise a trust by implication and enforce it on the ground that it is necessary to prevent a failure of justice.

4. CONVEYANCE--By Husband to Wife--Where Burden Rests to Prove a Trust. A conveyance of real estate by the husband to the wife or a purchase in her name, the consideration being furnished by him, is presumed to be a gift, and the burden rests upon those who assert that the transaction was intended as a conveyance of the legal title to the wife to be held in trust for the husband.

5. Husband Making Gift to Wife--When Valid. A husband may make a gift of his real estate to his wife when no rights of creditors interfere, and it will be upheld as against his heirs notwithstanding they were at the time the conveyance was made and continue to be dependent upon him for subsistence and support.

6. EVIDENCE--Fails to Establish Constructive Trust. Upon the facts and circumstances shown in the evidence in the present case it is held that a constructive trust was not established, and that the evidence was not sufficient to overcome the presumption that certain conveyances to the wife were intended by the husband as a gift to her, and therefore that the demurrer to the evidence was rightly sustained.

C. E Elliott, and W. T. McBride, both of Wellington, for the appellants.

James Lawrence, of Wellington, for the appellees.

OPINION

PORTER, J.:

This is an appeal from a judgment sustaining a demurrer to plaintiffs' evidence. The action was in ejectment and for partition of certain real estate.

The appellants, who were plaintiffs below, are the children of John Clester, deceased, who removed to Kansas from Ohio in 1878, his first wife, the mother of appellants, having died before the family left there. The legal title to the real estate in controversy is in the name of Ida M. Clester, the second wife, and the other appellees are children of the second marriage.

It is the claim of appellants that John Clester at the time of his death was the equitable owner of all the real estate. There was evidence tending to show that the mother of appellants inherited from her father a sum of about $ 2000; that this money was brought to Kansas and invested in farm land in Sumner county by John Clester; that the family lived on the farm for six or seven years, when it was sold and the proceeds invested in two hundred acres of other land in the same county, a part of which is the land involved in this action. Three years afterwards, in 1887, John Clester married Ida M. Clester and the family continued to occupy the two hundred acres as a home. In 1889 John Clester conveyed a part of the land directly to Ida M. Clester, the consideration named in the deed being one dollar and love and affection. In 1890 the rest of the tract was conveyed to her, a deed being made first to a son-in-law who soon afterwards conveyed to Ida M. Clester. The evidence tended to show that Ida M. Clester paid nothing for either conveyance, that she possessed no means of her own; and there was some evidence that subsequent to the conveyances she made statements and admissions to the effect that she held the title in trust; that she stated at one time that she knew that the money with which the land was purchased came from the first wife; again that she said it was her intention sometime to pay to the appellants their mother's share. There was evidence that after the conveyances John Clester continued to exercise the same control and management of the lands as before; and a witness testified to having heard him say that he intended to fix matters so that appellants would get the land. This, in substance, was the testimony relied upon by appellants.

They contend that the evidence and the fair inferences to be drawn from all the circumstances proven establish prima facie that the land belonged in equity to John Clester; that the question whether his intention was to make a gift to Ida M. Clester and to ignore the rights of the children by the first wife should have been submitted to the jury. It is broadly claimed that the evidence shows a constructive trust, or a trust ex maleficio.

The weakness in appellants' claim is the absence of any testimony to show an agreement at the time the conveyances were made by which Ida M. Clester was to hold the land in trust for the husband. Had there been testimony that such was the agreement, the case might be said to fall within the provisions of section 8 of the act relating to trusts and powers (Gen. Stat. 1909, § 9701), and even though the agreement had been oral it would lie within the province of equity to raise a trust to prevent a failure of justice (Rayl v. Rayl, 58 Kan. 585, 589, 50 P. 501, and cases cited in the opinion). But there was no testimony showing any promise or agreement or understanding at the time the conveyances were made that she should hold in trust for him.

It is true that trusts by implication frequently arise in transactions between persons occupying such intimate relationships as that of husband and wife or parent and child, but the mere fact that the transaction is between husband and wife or parent and child, and that no valuable consideration passes, is not sufficient to raise a trust by implication. (Brown v. Brown, 62 Kan. 666, 675, 64 P. 599.) There must be fraud, active or constructive, and neither character of fraud will be presumed from the fact alone that the relationship of the parties is such as to suggest that a fiduciary relation may have existed; there must be some betrayal of a confidence reposed or some breach of a duty imposed by such relation. When either of these is shown equity is expressly authorized, under the exceptions stated in section 8, supra, to raise a trust by implication and to enforce it in furtherance of justice and to prevent fraud. (See Kennedy v. Taylor, 20 Kan. 558, 561.)

It is said:

"The test of such a trust is the fiduciary relation and a betrayal of the confidence reposed, or some breach of the duty imposed under it." (39 Cyc. 184.)

"The existence of the relation, and a subsequent abuse of...