Jensen v. Howell

• Decision Date: 16 August 1929
• Docket Number: 4787
• Court: Utah Supreme Court
• Parties: JENSEN et al. v. HOWELL et al

282 P. 1034

75 Utah 64

JENSEN et al. v. HOWELL et al

No. 4787

Supreme Court of Utah

August 16, 1929

Appeal from District Court, Seventh District, Sanpete County Dilworth Woolley, Judge.

Action by Martha A. Jensen and others against Leon Howell and others. Judgment for plaintiffs, and defendants appeal.

JUDGMENT REVERSED AND VACATED, AND CASE REMANDED, WITH DIRECTIONS.

J. H McKnight, of Salt Lake City, for appellants.

A. H Christenson, of Provo, for respondents.

STRAUP, J. CHERRY, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

STRAUP, J.

This action was brought to have conveyances of real estate and transfers of personal property absolute in form impressed with an express trust alleged to have been orally imposed. The controversy arises among heirs, the children of E. W. Howell, deceased. He had two wives. The plaintiffs, four in number, all women and all married, are children of the first wife. The defendants, twelve in number, men and women, and all married, are children of the second wife. Howell and his first wife separated in about 1868, when the plaintiffs were young children. The children remained with him. For a few years he and the children lived with his mother. In about 1871, he, having been divorced from his first wife, married his second wife. From thence on, and until the children were married, they lived with their father and his second wife, their stepmother. His first wife died in about 1879. Twelve children were born as the issue of the second marriage. They are the defendants in this case. The children of both wives lived with the father and his second wife as one family, until the children were married. She regarded and treated the children of the first wife as she did her own children and with the same consideration. So did the father. He, in Sanpete county, where the parties resided, was engaged chiefly in farming.

February 20, 1901, after he had been married to his second wife about 30 years, he, by warranty deed, conveyed to her all of his real estate, consisting of one parcel of about 55 acres, another of about 20 1/2 acres, and the house and lot, consisting of several acres, where they resided. The parcels were conveyed by three separate deeds. They were all witnessed, properly acknowledged, and were recorded--one of them in February, 1901, when the deeds were executed; the other two October 1, 1909. That the deeds were delivered to the second wife in February, 1901, when they were executed and acknowledged, and were in her possession from thence on until her death, in December, 1923, is not disputed. When the deeds were executed, the children of the first wife were from 35 to 42 years of age, all married, and were no longer living with the father and the second wife, though all were on friendly and visiting terms.

In the winter of 1908, or in the early spring of 1909, Howell, who was sick of cancer, was confined to his bed. At that time some of his children by the second wife were yet minors, still living with him. Some were married, and were no longer living at his home. In March, 1909, he, by instruments in writing, witnessed and duly acknowledged, transferred to his second wife all of his shares of stock in the Empire Creamery Company, the Fairview Creamery Company, the Birch Creek Irrigation Company, the Gooseberry Irrigation Company, the Co-Op Sheep Company, and the Union Roller Grist Mill Company. The instruments on their face constituted an absolute transfer of title in praesenti, without any reservations or conditions whatsoever. What the value of such shares at that time was is not shown. Howell died May 27, 1909. That a transfer and delivery of such shares of stock were made to the second wife in March, 1909, is not disputed. Nor is it disputed that from the time of such transfer until in May, 1923, a period of more than 14 years, she exercised exclusive control and dominion over them. In May, 1923, she, by trust deed, conveyed to one of her sons, in trust for all of her children, the defendants herein, all of her real estate and personal property, including that conveyed and transferred to her by her husband in 1901 and in 1909. She died in December, 1923.

Up to this time there seemingly was no controversy or dispute between the parties, and no serious dispute until several years after the death of the second wife, and after her children, the defendants, had made a division and disposition of the property, dividing and disposing of it in accordance with the provisions of the trust deed. Then it was that the plaintiffs, or some of them, complained because they did not share, and were not permitted to share, in the division. Hence this action was brought in January, 1927, by the plaintiffs filing a complaint, in which it was alleged that the real estate and personal property conveyed and transferred to the second wife by their father was conveyed and transferred with an oral agreement and understanding that the second wife was to enjoy all of such property, both real and personal, until her death, and that then the property, both real and personal, was to be divided equally among all of the children, each to have an undivided one-sixteenth part thereof, and that the defendants had knowledge of such an agreement and understanding when the trust deed was made by the second wife to them shortly before her death. All this the defendants denied.

The case was tried to the court, who made findings to the effect that the conveyance of the real estate to the second wife in 1901 was an absolute and unconditional conveyance, and not upon any terms or conditions, as claimed by the plaintiffs, and was not charged with the alleged trust; that the personal property transferred to the second wife in 1909 was transferred upon an express oral agreement and understanding that at her death the property was to be distributed among all of the children, share and share alike, and as claimed by the plaintiffs; that the value of the shares of stock, the part to which the plaintiffs were entitled at the death of the second wife, was $ 1,782.42; that two of the plaintiffs had received $ 150 each from the defendants; and that the plaintiffs were entitled to a judgment against the defendants for $ 1,482.42, together with interest thereon from December, 1923, amounting to $ 1,976.54, principal and interest, for which amount judgment was entered in favor of the plaintiffs and against the defendants jointly and severally, from which the defendants have prosecuted this appeal.

There are numerous assignments of error. The chief assignment, and the principal one discussed in appellants' brief, challenges the sufficiency of the evidence to support the finding that the personal property, the shares of stock, transferred to the second wife by Howell shortly before his death, was transferred with an oral agreement or understanding that upon the death of the wife such property was to be distributed to all of the children of both the first and the second wife.

That a trust in personal property may be declared or created by parol and may be proved by parol evidence, is not disputed. Such, too, is the general rule. Skeen v. Marriott, 22 Utah 73, 61 P. 296; 1 Perry on Trusts (7th Ed.) § 86. The general rule also is that, to establish a trust by parol, the evidence must be clear, unequivocal, and explicit, the property which is the subject-matter of the trust clearly and distinctly, and the purposes of the trust plainly, indicated, as well as the person or persons who are to be the beneficiaries. Skeen v. Marriott, supra; 1 Perry on Trusts, supra; Beach on Trusts, § 52. And, as expressed in may of the adjudicated cases, the evidence must be "clear, satisfactory and convincing." Sheehan v. Sullivan, 126 Cal. 189, 58 P. 543, and cases there cited.

The evidence most strongly pointed to by the respondents to support the finding is the testimony of one of the plaintiffs. She testified that during the last illness of her father she frequently called at his house to help give him food and nourishment. She testified on such occasions she had two conversations with her father in his bedroom, while he was quite ill in bed. The first was within about a week after he was taken ill. She testified that he then "was pretty bad, and he said he wondered if he was going to get over it, and wondered if he had not better fix up his property," but that she "told him that the doctor said that he had a fair chance to get well, and told him not to do anything just yet, and he said, 'All right.'" She testified her stepmother was present at that conversation. She further testified that the next conversation was some time after that, and about 6 o'clock in the morning of the day when the written transfers on March 4, 1909, were executed and acknowledged, transferring the shares of stock to her stepmother. She testified that on that occasion she called to help give her father nourishment; that she met her stepmother on the porch, who told her that her father was worse, and that "she wanted me to go in and fix the property up with him"; that the witness went in the house, passed by other members of the family in the house, and went in her father's bedroom, where he was alone in bed, and there had the following conversation with him, not in the presence or hearing of any one, except of her stepmother, after she was later called in:

"Q. State just how you found him there, and what was said. A. Well, I found him in a very weak condition; a very weak condition.

"Q. State what you said. A. I asked him how he was feeling; and he said, 'Pretty good'; and I says, 'Well, you are worse, and I see you ain't getting any better, and maybe we better fix the property up,' I said to him; and he says, 'Did mother say so? and...