Mead v. Robertson

• Decision Date: 25 May 1908
• Citation: 131 Mo. App. 185,110 S.W. 1095
• Parties: MEAD et al. v. ROBERTSON et al.
• Court: Missouri Court of Appeals

110 S.W. 1095

131 Mo. App. 185

MEAD et al. v. ROBERTSON et al.

Kansas City Court of Appeals. Missouri.

May 25, 1908.

1. TRUSTS — CONSTRUCTIVE TRUSTS — BASIS — FRAUD.

In view of the statute of wills (Rev. St. 1899, § 4604 [Ann. St. 1906, p. 2503]), and the statute of frauds (Rev. St. 1899, § 3416 [Ann. St. 1906, p. 1949]), requiring certain solemn written formalities to create a trust, an action to establish a constructive trust will lie only to arrest the consummation of a fraud, for otherwise equity would be without excuse for interposing against the direct provisions of the statute.

2. SAME—NECESSITY FOR PROMISE.

Where one is induced to make a will, or to refrain from changing one already made, by a promise on the part of a legatee to devote his legacy to a certain lawful purpose, equity will enforce the application of the property in accordance with the promise, and the same rule applies where an heir or next of kin induces an ancestor or relative not to make a will by promising, in case of intestacy, to dispose of property in whole or in part as directed.

3. SAME — EFFECT OF PROMISE — CAUSE OF FAILURE TO MAKE A LEGAL PROVISION.

The promise necessary to sustain a constructive trust must have been the cause of the failure to make the necessary legal provision to effectuate decedent's desire, and it must appear that decedent was in a position to carry out, and would and could have carried out, his desire and intention, but for the promise.

4. SAME—NATURE OF PROMISE—SILENCE.

Proof of a promise as a basis for establishing a constructive trust may consist in the silence of the promisor on hearing the declaration of the promisee's desires as to the distribution of the property; but a promise, whether express or silent, implies a conscious act of commission or omission in the promisor, and where one about to die did not know that his legal heir was in hearing, and there was no showing that she knew her rights, a statement of the wishes of the one anticipating death and the silence of the heir would not create a constructive trust.

5. SAME—PROOF REQUIRED.

The evidence necessary to establish a trust, in the face of the statute requiring wills to be in writing, must be clear and indubitable, and a mere preponderance of evidence will be insufficient.

6. SAME—ACTIONS—EVIDENCE — SUFFICIENCY —EXISTENCE AND EFFECT OF PROMISE.

Evidence held insufficient to show a promise sufficient to establish a constructive trust, in view of the alleged trustee's absence from the room, notwithstanding a promise by her husband.

7. SAME—SUBJECT-MATTER—UNCERTAINTY.

Evidence held too uncertain as to subject-matter and distribution to establish a constructive trust.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Thomas O. Mead and others against Lillie M. Robertson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. M. Williams and Duggins & Rainey, for appellants. T. H. Harvey and Frank P. Sebree, for respondents.

ELLISON, J.

This is a bill in equity to declare defendants trustees ex maleficio and enforce an implied or constructive trust. The judgment in the trial court was for the defendants.

The case arises out of the following facts: William Mead was a young unmarried man about 24 years of age. His father and mother were dead, and his only heir was his half-sister, Lillie M. Robertson, who was the wife of Dr. J. A. Robertson, called Arch by some witnesses. William died in May, 1904, after a week's or ten days' illness, leaving a personal estate of about $10,000. About 9 o'clock of the evening preceding the day of his death, there were in the room with him Dr. Robertson, his brother-in-law, Dr. Reid, his physician, Rev. Alton, the pastor of his church, Henry Mead, his uncle and former guardian, and his aunt, Mrs. Charles Mead. His sister was in an adjoining room but in hearing. He was informed by his physician that he could not recover, and was asked if there was any business he desired attended to. His uncle and former guardian stated what transpired in the following way: "I asked Willie Mead if there was anything in regard to his business he wanted attended to. He turned to me and asked me how much money he had. I told him he had $10,000, or thereabout, or more. I do not remember my words. He then started up and said: `I want to give Uncle Olan the note he owes me. I want to give Uncle Charlie's girls $400 each. I want to give Sam $1,000. I want half of my remaining estate held for the benefit of Cousin Nannie'—who was his stepmother—in case she needed it. In case she did not, to give it to his sister, Mrs. Robertson, and the remaining half to be given his sister. He then turned to Dr. Robertson, and said: `Are you satisfied with this?' He said: `Yes, whatever you want done with it, we will do'—or words to that effect. He soon after that says, turning to Dr. Robertson: `I want you and Uncle Henry to attend to this matter for me.' And Arch (Dr. J. A. Robertson) says: `All right.' I did not say anything. Willie turned to me, and said: `Do you hear me?' I said: `Yes, I hear you, and we will attend to it.' I think that was pretty nearly everything that occurred. There may be something I have not remembered exactly." Later in the night his sister came out into his room. She testified: "Well, Thursday night I went to his bed myself, and he took me by both hands, as I said before, and said: `I am almost gone, Lillie. I cannot last long.' And he pressed both of my hands and I bent with my ear down to his mouth, and he whispered `With a little distribution, I have left the rest for you.'" After the death of William, Dr. Robertson and Henry Mead were appointed administrators of his estate. Final settlement was made, and $10,000 paid over to Lillie M. Robertson as sole heir. A part of this was invested by Dr. Robertson, and he is made a party defendant with his wife. They refused to comply with the request of William, and this bill was brought to enforce a trust, as already stated.

The importance of the question here presented is heightened by the fact that it seems not to have arisen heretofore in our courts. Industry of counsel, however, has brought to our aid many adjudications from other states and countries, and we are thus not left without help in its solution. It may be stated, at the outset, that fraud is the foundation of an action of this nature, and that the object of such an action is to arrest the consummation of a fraud. But for the element of fraud, equity would be without excuse for interposing against the statute of wills and the statute of frauds, which require certain solemn written formalities for wills and certain writings (where lands are involved) for trusts. Sections 4604, 3416, Rev. St. 1899 (Ann. St. 1906, pp. 2503, 1949). Therefore, since a willfully broken promise, made in aid of the promisee's definite intention, which thwarts such intention and prevents other action, is a fraud, equity affords relief to the beneficiaries of the promise. There must not only be an expressed intention, but there must be a promise made to carry out such intention; otherwise there would be no breach of promise, and consequently no fraud by the promisor. As said in Trustees of Amherst College v. Ritch, infra: "The legatee, if he has made no promise, and none has been made in his behalf, takes an absolute title and can do what he pleases with the gift. Whatever moral obligation there may be, no legal obligation rests upon him." In recognition of this, the principle of equity may be stated to be that, if a testator "is induced either to make a will, or not to change one after it is made, by a promise, express or implied, on the part of a legatee that he will devote his legacy to a certain lawful purpose, a secret trust is created and equity will compel him to apply property thus obtained in accordance with his promise. The trust springs from the intention of the testator and the promise of the legatee." "The same rule applies to heirs and next of kin who induce their ancestor, or relative not to make a will by promising, in case his property fall to them through intestacy, to dispose of it or a part of it, in the manner indicated by him. The rule is founded on the principle that the legacy would not have been given, or intestacy allowed to ensue, unless the promise had been made; and hence the person promising is bound, in equity, to keep it, as to violate it would be fraud." Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305; O'Hara's Will, 95 N. Y. 403, 47 Am. Rep. 53; Williams v. Fitch, 18 N. Y. 546; Ahrens v. Jones, 169 N. Y. 555, 62 N. E. 666, 88 Am. St. Rep. 620; Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753; Hooker v. Axford, 33 Mich. 453; Smullin v. Wharton, 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267; Grant v. Bradstreet, 87 Me. 583, 33 Atl. 165; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245; Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240; Brooke v. Chappell, 34 Wis. 405; 1 Underhill on Wills, § 153; Thornton on Gifts & Advancements, § 437; 1 Beach Modern Eq. Jur., § 754.

Of the foregoing cases, Hooker v. Axford was where a wife, wishing her property to go to her husband in such way as not to be taken for his debts, was advised by her attorney to devise to him and another, absolutely, on an oral understanding that they would hold for the husband's use. She did so. After her death the attorney was willing to carry out her intention, but the other refused. The trust was enforced. That of O'Hara's Will was where the testatrix left her estate jointly and absolutely "to her lawyer, her doctor and her priest," in reliance upon their honor to carry out her declared intentions, among which were certain charitable purposes. The gifts to the charitable institutions being contrary to the statute of New York, and failing, in that respect, on that account,...