Conrad v. Douglas
| Decision Date | 28 December 1894 |
| Docket Number | 8920 |
| Citation | 61 N.W. 673,59 Minn. 498 |
| Parties | W. S. Conrad v. Wallace B. Douglas |
| Court | Minnesota Supreme Court |
Appeal by plaintiff, W. S. Conrad as administrator, with the will annexed, of the estate of George H. Clapp, deceased, from an order of the District Court of Clay County, L. L. Baxter, J made March 16, 1894, granting a new trial.
George H. Clapp of Devils Lake, N. Dak., owned the east one hundred and twenty five feet of lots four, five and six in block forty six in the original townsite of Moorhead with livery barn thereon. He conveyed this property March 15, 1888, to defendant Wallace B. Douglas by ordinary warranty deed. No trust or condition was expressed therein. It was made without consideration and the parties intended that Douglas should hold the title in trust for Clapp. Douglas was to lease the property, collect the rents and out of the proceeds pay the taxes and a mortgage on it. There never was any writing executed evidencing this trust but Douglas accounted annually to Clapp for the rents and profits and has never denied the trust or claimed to be the beneficial owner. On September 26 1889, Clapp wrote a letter signed by him addressed to Douglas directing him in case of his (Clapp's) death to deed the property to Mary E. Bell, wife of J. J. Bell of Moorhead. This letter he enclosed in one of the same date to her and sent both to her by mail. He was owing her $ 1,800 money borrowed by him of her in 1883.
Clapp died testate at Devils Lake, N. Dak., January 11, 1890. His will was admitted to probate there and letters testamentary issued to John B. Remley. He administered the estate situated in that state, but refused to take steps to recover this property in Minnesota. The property in that state was insufficient to pay the debts, and the creditors applied to the Probate Court of Clay county to appoint the plaintiff, W S. Conrad of Moorhead administrator in this state with the will annexed and he was in due time so appointed. He brought this action against Douglas to obtain the property. Douglas answered admitting the trust and stated the claim of Mrs Bell and prayed that she be made a party and that it be adjudged to whom he should convey. Mrs. Bell intervened in the action and prayed that Douglas be adjudged to convey the property to her. The issues were referred to Ira B. Mills to take the evidence and report. He heard the evidence and reported for plaintiff that the trust claimed by Mrs. Bell was invalid. She moved the court to set aside the report and grant a new trial. The motion was granted and plaintiff appeals.
The order appealed from is reversed.
M. F. Propping, and Ball & Watson, for appellant.
A trust in lands cannot be created by parol, and there is no written declaration of trust in favor of the intervenor. No trust in or over lands can be created or declared, unless by act or operation of law or by deed or conveyance in writing. Randall v. Constans, 33 Minn. 329; Tatge v. Tatge, 34 Minn. 272; McVay v. McVay, 43 N.J.Eq. 47.
If Clapp had directed Douglas to convey the land in his life time and the direction had been obeyed before Clapp's death, such conveyance would have been valid as against the intervenor. The conveyance to Douglas was revocable as against everybody excepting Douglas himself, and it became revocable as to him also as soon as he acknowledged in his answer in this action that he had no beneficial interest in the land. As the property was at the absolute disposal of Clapp up to the time of his death Mrs. Bell could have no vested interest in it prior to that time. The direction was that it should be deeded to her in case of his death from any cause. If the instrument vests no present interest, but only directs what is to be done after the death of the maker, it is merely testamentary in its character. Frederick's Appeal, 52 Pa. St. 338; Rife's Appeal, 110 Pa. St. 232; Wellborn v. Weaver, 17 Ga. 267; Carlton v. Cameron, 54 Tex. 72; Doe d. Cross v. Cross, 8 Q. B. 714; Burlington University v. Barret, 22 Ia. 60; Dickerson's Appeal, 115 Pa. St. 198; In re Diez' Will, 50 N.Y. 93.
Such an attempted disposition of property, even in the case of personalty, is held to be merely testamentary in character. 1 Jarman, Wills, p. 46, note 18; Smith v. Speer, 34 N.J.Eq. 336; Grattan v. Appleton, 3 Story, 755; Warriner v. Rogers, L. R. 16 Eq. 340; Mitchell v. Smith, 4 DeG. J. & S. 422; Basket v. Hassell, 107 U.S. 602.
So in case of checks given by decedent. Bank v. Millard, 10 Wall. 152; Second Nat. Bank v. Williams, 13 Mich. 282; Cowperthwaite v. Sheffield, 3 N.Y. 243; Winter v. Drury, 5 N.Y. 525; Chapman v. White, 6 N.Y. 412.
It is evident therefore that the direction contained in the letter written by Clapp directed to Douglas and dated September 26, 1889, was testamentary in its character, and like all testamentary dispositions of property, it was ambulatory simply, and revocable at the will of the writer. This quality of revocableness itself determines the fact that there could be no trust for the benefit of the intervenor as shown above. And, inasmuch as this written direction of the testate was revocable, it was in fact revoked by his death. Frederick's Appeal, 52 Pa. St. 338; Gilmore v. Whitesides, Dudley (S. C.) Eq. 14; Helfenstein's Estate, 77 Pa. St. 328; Wellborn v. Weaver, 17 Ga. 267.
It is of course unnecessary to cite authorities to the effect that testamentary dispositions of property to be effective as wills must be executed in accordance with the provisions of the statute of wills and proved in the proper tribunal.
In this case, the plaintiff, administrator of decedent's estate, represents the general creditors whose claims are as meritorious as that of the intervenor, if not more so. In such case equity will not interfere. Perry, Trusts, 108; 2 Pomeroy, Eq. J. § 590; Ellison v. Ellison, 1 Lead. Cas. Eq. (4th Ed.) 426.
Peterson & Torgerson, for respondent.
In all good conscience the intervenor is entitled to this property. There can be no question whatever that Clapp intended that she should have it when he made the deed, and also when he wrote the letter of September 26, 1889. It is not pretended that the present creditors of the estate of George H. Clapp had any claims whatever against him at the time this deed was made. On the other hand the evidence disclosed that Clapp was largely indebted to the intervenor at that time.
The only question in the case is, have the parties used such means as will in law enable the intentions of Clapp to be carried into effect. The existence of the trust being admitted, the requirements of the statute of frauds are satisfied and the bars are let down to the introduction of parol evidence as to the terms of the trust. Perry, Trusts (4th Ed.) § 82.
Plaintiff's claim that Clapp retained an interest in the property is not warranted by the testimony. It is true that statements were rendered him showing the application of the rent received, but Douglas testified: But even if he had maintained an interest in the property, it would not be fatal to the trust. Von Hesse v. Mac Kage, 62 Hun, 458.
We not only have the testimony of the trustee here, but we have his verified answer in which he admits he holds the property in trust for the intervenor, and this has always been held conclusive. Sleeper v. Iselin, 62 Ia. 583; Boardman v. Willard, 73 Ia. 20; Champlin v. Champlin, 136 Ill. 309; Greene v. Begole, 70 Mich. 602; Shields v. McAuley, 37 F. 302; Creswell v. McKaig, 11 Neb. 222; Tierney v. Wood, 19 Beav. 330; Egerton v. Carr, 94 N.C. 648; Stone v. Hackett, 12 Gray, 227; Synnott v. Simpson, 5 H. L. 121.
The controlling facts in this case are that on March 15, 1888 one Clapp, who resided in Devil's Lake, N. Dak., was the owner of the property herein involved, situated in Moorhead, Minn. The defendant, Douglas, and the...
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