Shipe v. Hillman

Decision Date30 December 1955
Citation292 P.2d 123,206 Or. 556
PartiesRuth Adella Hillman SHIPE, J. Homer L. Hillman, Charles K. Hillman, Wayne W. Hillman, Mary Eugenie Hillman Stults, Clarence Hillman, III, Margith Hillman, Beverly Goodell and Helen Hillman, Respondents, v. Bessie K. HILLMAN, Appellant.
CourtOregon Supreme Court

Harold Banta and A. S. Grant, Baker, argued the cause for the appellant. With them on the brief were Grant & Fuchs, Gene C. Rose, and Banta, Silven & Horton, Baker.

Roy F. Kilpatrick, Canyon City, argued the cause for the respondent. With him on the brief were Robt. D. Lytle and W. F. Schroeder, of Canyon City & Vale.

Before WARNER, C. J., and TOOZE, BRAND and PERRY, JJ.

WARNER, Chief Justice.

This is a suit to establish a trust on real property situate in Grant, Harney, and Crook counties in Oregon, resulting in a decree declaring the defendant as holding title to said real property as trustee for the use and benefit of herself and the parties Plaintiff. It is from this decree that the defendant appeals.

The defendant-appellant, Bessie K. Hillman (hereinafter called 'Bessie'), is a daughter of Clarence Dayton Hillman, deceased (hereinafter called 'Hillman, Sr.'). The plaintiffs-respondents are children or grandchildren of the decedent, and together with the appellant constitute all of Hillman, Sr.'s heirs.

Bessie's title was derived in 1922 through four separate deeds from her father to her as grantee, absolute in form. Each contained the usual recital of consideration and had customary habendum clauses.

This litigation has its genesis in the eccentric business methods of Hillman, Sr. He was a 'boomer', with a frim belief that any land in the west had value to someone, and was, as described in the briefs, 'a most amazing and colorful character'. During his lifetime he had extensive land holdings in the states of Washington, Oregon, Nevada, California, and also in Canada. At one time he was the largest landholder in the State of Washington. It is said that at the peak of his operations Hillman, Sr. amassed a fortune of nearly $20,000,000. However, when he died in 1935 these values, as disclosed by the probate record had been reduced to $235,000. There is nothing in the record before us which remotely suggests that Hillman, Sr. was insolvent at any time, or was threatened with insolvency when he conveyed the instant property to Bessie.

Aside from exhibiting a domineering and patriarchal control over his sizeable family and his employees, he handled his various property holdings in a most unorthodox manner. We shall not attempt to enumerate his many departures from the conventional ways of conducting business, except to note here the one which seems to give greatest comfort to the plaintiffs-respondents as a basis for their claim. The business oddity to which we refer was Hillman, Sr.'s penchant, when purchasing land, for placing his titles in the names of others than himself--more frequently in the names of his children, even while in their minority, or in the names of his employees, and sometimes even employing fictitious names for grantees. It was a peculiarity which has no convincing record explanation.

The deeds to the property in controversy have this more or less unique distinction: In all of the deeds wherein the defendant-appellant was grantee, her father and his wife were grantors; whereas, when the other relatives or employees of Hillman, Sr. were grantees we are told that in most instances the grantors were parties from whom Hillman, Sr. purchased the property.

It is the position of plaintiff that Hillman, Sr. placed titles in various persons for his convenience, confident that he could on demand, as he always had in the past, control the grantees of his selection, and by reason thereof compel them to execute any conveyance that he might require from time to time.

The only allegation bearing directly upon the alleged trust relationship is found in paragraph V of the Amended Complaint, and reads:

'That upon her attaining her majority in the year 1922 her Father placed legal title to many thousands of acres of his lands in Oregon and elsewhere in her name to facilitate his handling of it. That she took said naked title upon the understanding that she was holding it in trust for her Father. That the beneficial interest in said lands remained and at all times since has been in her Father and his lawful heirs. That she at no time paid or surrendered anything in exchange for said conveyances.'

It will be noted that the respondents make no effort to suggest what kind of a trust was the product of the dealing had between Hillman, Sr. and his daughter Bessie, i. e., whether an express, resulting, or constructive trust.

Although the Court below may not have been under any duty to define the particular kind of a trust it ultimately found as existent, we cannot here avoid so doing in our effort to discover if Bessie, in fact, holds title as a trustee; and, if Bessie is a trustee, then to determine what are the rules of law and evidence giving support to the particular kind of trust from whence her trusteeship arises.

'A trust is equitable obligation, either express or implied, resting upon a person by reason of a confidence reposed in him to apply or deal with property for the benefit of some other person, or for the benefit of himself and another or others, according to such confidence. * * *' Templeton v. Bockler, 73 Or. 494, 506, 144 P. 405, 409.

As a general rule trusts are divided into two principal classifications: express trusts, and implied trusts. The latter classification, sometimes referred to as trust by operation of law, has been further subdivided into: (a) resulting trusts, and (b) constructive trusts. 1 Bogert, Law of Trusts and Trustees, § 1, p. 7; 89 C.J.S., Trusts, § 10, p. 722; 54 Am.Jur. 22, Trusts, § 5. Some other authors have made finer distinctions and have stated that four types of trust exist--express, implied, constructive and resulting. Both Professors Lewin and Perry define trusts as being of four types: Lewin, Trusts, 14th Ed., 16, 82; Perry on Trusts, 7th Ed., § 112. However, Professor Bogert, in his text, Bogert on Trusts, 2d Ed., § 20, states, and we think correctly, that the prevailing rule in this country is contrary, and that implied trusts include resulting and constructive.

Notwithstanding the failure of any attempt by pleading or decree to demonstrate the type of trust, if any, which emerged fromt the transactions had between the senior Hillman and his daughter, the circuit court described the incident litigation as '* * * a suit to impress a constructive trust upon certain real property * * *.' Later in its opinion the Court holds in essence that there was no constructive trust '* * * because there wasn't any agreement.' Indeed, the circuit judge concluded his opinion with the statement: 'I am not going to decide in this case now whether or not this amounts to a resulting or constructive trust.'

Express trusts are intentionally created by a direct and positive act of the settlor by some writing, deed, will, or declaration. In Oregon an express trust can come into existence only by writings subscribed by the party creating the trust, or his lawful agent, and executed with such formality as may be required by law. ORS 93.020. The law is well settled in this state that parol evidence is not admissible to establish an express trust. Bowns v. Bowns, 184 Or. 603, 200 P.2d 586; Hornbeck v. Crawford, 130 Or. 230, 279 P. 870; Howard v. Foskett, 96 Or. 446, 189 P. 396. It is unnecessary, therefore, to here distinguish between an express trust and an implied trust in view of the fact that there is no contention made that the transactions had between Hillman, Sr. and his daughter were the product of an express trust.

Therefore, if a trust can be culled from the deeds from Hillman, Sr. to Bessie, it must be implied, and if implied, it must be either a resulting or a constructive trust. As was said by Mr. Justice Wolverton in Barger v. Barger, 30 Or. 268, 47 P. 702, 703, '* * * there is a marked distinction between the two * * *', and we therefore now turn to examine the record in an attempt to ascertain whether or not the lands in the instant matter come within either of the two implied trust classifications, or are owned by Bessie in fee simple.

A resulting trust has been broadly defined as '* * * a trust which is raised or created by the act or construction of law, but in its more restricted sense it is a trust raised by implications of law and presumed always to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance.' 89 C.J.S., Trusts, § 14, p. 725; Restatement, Trusts § 455. 'A 'resulting trust' arises where property is transferred under circumstances which give rise to an inference that the person who makes the transfer or causes it to be made, does not intend the transferee to take beneficial interest in the property * * *.' Moses v. Moses, 140 N.J.Eq. 575, 53 A.2d 805, 173 A.L.R. 273, 276.

In Oregon and elsewhere this is exemplified where property is purchased with the money of another, although the title is not taken in such another's name. Holohan v. McCarthy, 130 Or. 577, 588, 281 P. 178; Chance v. Graham, 76 Or. 199, 207, 148 P. 63; Barger v. Barger, supra, Unterkircher v. Unterkircher, 183 Or. 583, 591, 195 P.2d 178.

But when the money is furnished by and even expended for the alleged beneficiary, the evidence must be clear, unequivocal and convincing. Holohan v. McCarthy, 130 Or. 588, 281 P. 178, and the same is true of constructive trusts, Johnston v. McKean, 177 Or. 556, 572, 162 P.2d 820, and cases there cited.

In the case at bar we are confronted with a deed, absolute on its face, which conveyed the lands in question to the defendant. This is not a case where the...

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