Tennant v. Tennant
| Decision Date | 30 April 1897 |
| Citation | 27 S.E. 334,43 W.Va. 547 |
| Parties | TENNANT v. TENNANT et al. |
| Court | West Virginia Supreme Court |
Submitted February 1, 1897
Appeal from circuit court, Monogalia county.
Bill by Milton Tennant against Asa Tennant and others to declare a trust. From a decree dismissing the bill plaintiff appeals. Affirmed by a divided court.
R. L Berkshire and Geo. C. Sturgiss, for appellant.
Chas Powell and U. N. Arnett, Jr., for appellees.
Milton Tennant appeals from a decree of the circuit court of Monongalia county rendered in a chancery suit wherein he was plaintiff and Asa Tennant, his brother, was defendant, and assigns as error the dismissal of his bill without granting the relief prayed. The following is a statement of the case On the 1st day of March, 1880, at the instance of his two sons, Milton and Asa, Jacob Tennant made his will, which is as follows: Milton Tennant insists that he was about to move permanently to Texas, and it was agreed between himself and Asa that the latter was to have his share in his father's estate, and pay him therefor its value in money; that he did go to Texas, and, after staying about three years, returned, and settled down on his father's land, he still being in life; that his father died in July, 1884, and the will was probated, and shortly afterward the land was divided, and two shares were allotted to Asa in accordance with the provisions of the will, but that plaintiff was permitted to take possession of one of the shares, containing about 91 acres, as his own, and held the same until the institution of this suit, repaying Asa with grain, etc., any taxes paid by him; that Asa had never paid him his share in the estate, or any part thereof, but had conceived the intention of holding the appellant's share by virtue of the will without recompensing him therefor in accordance with the agreement made with his father to make appellant equal with the other children, and had brought suit to dispossess him. Asa, on the other hand, claims that the appellant agreed to take $1,000 for his share, without regard to the question of equality, and that he had fully paid the same, or secured it to be paid at the time; that when the land was partitioned he rented one share thereof to the appellant, who accounted to him for the rent, and that he has always paid the taxes thereon; that at the instance of appellant he offered to let him have the land for $1,500, which sum he claimed it would take to make him whole, and appellant agreed thereto, but, failing to make such payment, he brought suit for possession. Appellant says the agreement was that the price he was to pay to retain the land was $1,500, less the price of 11 1/4 acres, sold to Peter Youst, and damages received for a county road and rental for oil lease and pipe line were to be deducted, which Asa denies. What the contract or agreement was between the parties at the time the will was executed is not all satisfactorily established, there being no memorandum or statement thereof in writing, other than what the will contains. Asa alleges that he was to pay $1,000 to appellant, but he entirely fails to establish such to have been the contract. There is no evidence but his own in relation thereto, which is contradicted by the appellant, who is supported by the language of the will. The evidence, as it appears in the record, decidedly preponderates against the full payment by him of the $1,000, and yet appellant admits as a matter of compromise he agreed to repay him $1,500, less certain deductions heretofore mentioned. The terms of the will are the only written evidence as to the contract between the parties, and they are in these words: "And the reason of this is not that I discriminate against my son Milton, nor in favor of my son Asa, but because my said son Asa has advanced to my said son Milton the value of all the interest in my estate which my son Milton could have but for this will, which is made in fact to enable my son Milton to obtain said advance from his brother, Asa, and with the understanding had in my family that this will is necessary and proper to secure an equal division amongst my children, and that the same shall never be revoked." The consideration for the will is the value of all the interest of the appellant in the estate of the testator, no part of which is pretended to have been paid at the time of the execution of the will, and it therefore furnishes no evidence of payment.
It is a well-established principle of equity jurisprudence that where a person obtains a devise or bequest in his own name on promise to hold it for the benefit of another, the nominal devisee will be held to be a trustee, and the bequest a trust for the benefit of such other. As is said in the case of Church v. Ruland, 64 Pa. St. 442: "This doctrine fastens upon the conscience of the party having thus procured a will, and then fraudulently refusing or neglecting to fulfill the promise on the faith of which it was executed, a trust or confidence which a court of equity will enforce by compelling a conveyance when the proper time for it has arrived." Also: The fraud consists in the breach of duty and obligation on the part of the nominal devisee. Story, Eq. Jur. § 781: "In the case of Oldham v. Litchford, 2 Vern. 506, it being proved that the devise of certain real estate had promised the testator that he would pay an annuity, which otherwise the testator would have charged on the real estate devised, it was decreed that the annuity should be charged on the land." In this case the appellee obtained a devise of property which would otherwise have been devised to the appellant on the promise of payment to the appellant of the value of the interest devised. His after-refusal to do so justifies a court of equity in charging upon the property devised in favor of the appellant the value thereof, or in holding the appellee as a trustee for his benefit, giving him the choice to pay the value or surrender the property. Williams v. Vreeland, 29 N. J. Eq. 417; also 32 N. J. Eq. 135, note. Nor does the fact that the will may have been made in such manner to secure the value of the appellant's interest to himself and prevent his creditors from seizing the same render the same fraudulent, as the testator had the right, without being guilty of fraud, to secure the appellant's inheritable interest in such way as to prevent it being taken by his creditors. In Jones v. McKee, 3 Pa. St. 496, 6 Pa. St. 425,--a case in which a son, being financially embarrassed, persuaded his mother to give all her lands by codicil to her will to his sister, who would hold one-half of such devise in trust for him, to which the sister being present assented, --held, that the sister was a trustee for her brother as to one-half the lands, and that subsequent parol admissions of the sister were admissible to establish the trust. So, in this case, the admissions of the appellee, and his willingness to deed the land to the appel lant on being made whole, is competent testimony to establish the provision of the will as creating a trust in him for the benefit of his brother. Nor is the parol agreement entered into by them in violation of the statute of frauds, for it amounts on the part of the appellee to nothing more than an agreement to execute his trust, which he was equitably bound to do. Where one agrees verbally to do that which he is already...
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