In re Fisk

• Decision Date: 18 December 1908
• Citation: 81 Conn. 433,71 A. 559
• Court: Connecticut Supreme Court
• Parties: In re FISK et al.

71 A. 559

81 Conn. 433

In re FISK et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge.

Louis A. and Leonard D. Fisk appealed from commissioners disallowing their claim against the estate of Eugene D. Fisk, deceased, to the superior court, which allowed the claim, and the estate of deceased, his second wife, and her children appeal. Affirmed.

William B. Stoddard, for appellants.

E. Henry Hyde and Edmund Zacher, for appellees.

BALDWIN, C. J. The finding of the superior court states these facts: Louis A. and Leonard D. Fisk are the only children of Eugene D. Fisk by his first wife, who was a daughter of Leonard Daniels, of Hartford, in this state. In May, 1877, his father-in-law agreed to furnish him $70,000 for the purchase of a basket factory in Chicago, taking a mortgage upon it for that amount. Eugene D. Fisk soon afterward bought this property, taking title in his own name, and paid $70,000 for it, which he received from Mr. Daniels. Later all parties agreed that, instead of giving such a mortgage, the factory should be conveyed to Mrs. Fisk as a gift from her father, which was done in January, 1878. In January, 1880, another tract of land in Chicago was conveyed to Mrs. Fisk as a gift from her father, for the purchase of which ho furnished the funds to Mr. Fisk, the cost being $27,728. Mr. and Mrs. Fisk resided at Chicago for some time prior to May 30, 1881. April and May, 1881, she was dangerously ill from quick consumption, and did not expect to recover. On May 30th she held the record title to the two pieces of land given her by her father and to a third parcel which had been bought and paid for by Mr. Fisk out of his own funds. Her husband prepared an absolute conveyance to himself, dated May 30, 1881, of these three parcels, and all her other property, real and personal, in Chicago. This he induced her to execute and deliver to him upon his promise that he would hold the property conveyed, as she desired, in trust for her two children, of whom the elder was then 12 years old. She also acted in reliance on this promise, and having trust and confidence in him, and without other consideration. The conveyance was acknowledged on June 20, 1881, and she died July 1st. Upon her death he took possession under it, and from time to time sold off the property, receiving $13,750 for the parcel which he had originally himself paid for, and $217,000 for the two parcels given to his wife by her father. He married again in 1896, and had children by his second wife. At the time of his death in 1905 he was an inhabitant of Guilford, in this state, and was in possession of about $100,000 derived from the sale in 1902 of one of the parcels of land given to his wife by her father. He never accounted to his children by his first wife for any property or the proceeds of any property conveyed to him by their mother, but converted all the proceeds to his own use, and endeavored to turn them over to the use and benefit of his second wife and his children by her. He also concealed the fact that he held the property conveyed to him by his first wife in trust for Louis A. and Leonard D. Fisk, and they had no knowledge or notice of the trust until after his death. They presented a written claim against his estate, worded as follows: "Estate of Eugene D. Fisk, To Louis A. Fisk and Leonard D. Fisk, Dr. To amount due us on account of real estate situated in Chicago, Illinois, conveyed to said Eugene D. Fisk by our mother during her lifetime, and after her death sold by him, under an agreement on the part of the said Eugene D. Fisk that at his death said real estate, if not sold, should be conveyed to us. or, if sold, that upon his death, the proceeds thereof should be paid over to us, $800,000." The commissioners disallowed it wholly. The superior court allowed so much of it as represented the proceeds of the lands given to their mother by her father; they making no claim to the proceeds of the other parcel.

The evidence upon which the finding of facts was based was mainly documentary. The only direct evidence that Eugene D. Fisk received the conveyance from his wife under an agreement to hold the property on a trust for the appellants lay in parol, and came from one Mary Anderson, who was present when the deed was delivered, and was one of the attesting witnesses. Its reception was objected to on the ground that parol evidence was inadmissible to contradict an absolute deed or to establish an express trust in real estate. Both these objections were properly overruled.

The first related to a question of judicial procedure, and depends wholly upon the laws of Connecticut. By that law parol evidence cannot be introduced to contradict an absolute deed, but may be admitted to show that such a deed was given under certain circumstances and in pursuance of a parol agreement as to the use to be made of it. This does not vary the contract expressed in the deed. It simply shows it to have been made as a step in execution of and conformity with a prior undertaking. Collins v. Tillou, 26 Conn. 368, 68 Am. Dec. 398; 3 Wigmore on Evidence, § 2437.

The second objection raises a question of private international law. The. deed was executed in Illinois between two of its domiciled inhabitants, and all the property conveyed was situated there. The parol trust under which the appellants claimed that it was given was in favor of two other of its domiciled inhabitants. The statute of frauds of that state then provided that "all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing; or else they shall be utterly void and of no effect; provided, that resulting trust or trusts created by construction, implication or operation of law, need not be in writing and the same may be proved by parol." This proceeding, which is founded on an agreement for a transfer of real estate to be held in trust, is brought in a state into which the grantee in the deed had, long after its delivery, removed his domicile. Our statute of frauds (Gen. St. 1902, § 1089) provides that "no civil action shall be maintained * * * upon any agreement for the sale of real estate, or any interest in or concerning it * * * unless such agreement, or some memorandum thereof, be made in writing, and signed by the party to be charged therewith, or his agent." The Illinois statute is that trusts of land other than those resulting or created by construction, implication, or operation of law which are not proved by a certain kind of writing are void. The Connecticut statute is that no action shall be maintained on agreements for the sale of any interest in real estate which are not proved by such a writing. It does not make them invalid. The validity of a contractual obligation is ordinarily governed by the law of the state or country with reference to which it was assumed. Medbury v. Hopkins, 3 Conn. 473. The obligation of Eugene D. Fisk, which parol evidence was offered to prove, was assumed, if at all, in...