Whiting v. Dyer

• Decision Date: 03 December 1898
• Citation: 41 A. 895,21 R.I. 85
• Parties: WHITING v. DYER.
• Court: Rhode Island Supreme Court

41 A. 895

21 R.I. 85

WHITING

v. DYER.

Supreme Court of Rhode Island.

Dec. 3, 1898.

Bill by Edgar H. Whiting against William H. Dyer to establish a trust. Defendant filed a demurrer to the bill. Overruled.

D. B. Pottler and N. B. Lewis, for complainant.

C. J. Arms, for respondent.

MATTESON, C. J. This is a bill to establish a trust. The respondent has demurred to the bill. The ground urged in the respondent's brief in support of the demurrer is that, as the money paid for the land, alleged in the bill to have been purchased by the respondent in pursuance of the agreement between him and the complainant's mother to purchase it for her benefit, was not furnished by her. but was the respondent's own money, no resulting trust arises, and hence, as the bill does not aver that the agreement was in writing, it is fatally defective. There are however, other constructive trusts besides resulting trusts, which are not within the statute of frauds, and therefore do not require a note or memorandum in writing for their proof. Such are trusts which arise ex maleficio; as, for instance, where a person acquires title to an estate through fraud or the abuse of a confidential relation, in which case equity treats the wrongdoer as a trustee for the injured party. Wood v. Rabe, 96 N. Y. 414; Aborn v. Padelford, 17 R. I. 143, 20 Atl. 297. But, assuming that it is necessary to the maintenance of the bill that the agreement in question should have been in writing, the bill does not show that it was not in writing, and therefore the objection that it was not in writing should have been taken by plea or answer, and not by demurrer. Cranston v. Smith, 6 R. I. 231; rescript in Taft v. Dimond, filed Tune 26, 1885 (March term, 1885, 67th day). The demurrer is overruled.