Wilder v. Wilder
| Decision Date | 17 August 1912 |
| Citation | 75 S.E. 654,138 Ga. 573 |
| Parties | WILDER. v. WILDER. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
If a mother buys lands with her own funds, and causes the title to be made to her son under an understanding and agreement that the property is to be hers, and that the son will make to her such conveyance as she may require, a trust in favor of the mother will be implied.
[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 45-50; Dec. Dig. § 35.*]
Under our statute an express trust must be created or declared in writing. Therefore, where three persons joined in the purchase of a tract of land, and title was made to one of them, parol evidence is inadmissible to show that it was the agreement that one of the oth-ers was to have the complete title, and that the grantee and the other purchaser were only to have a home on the land until the happening of a specified contingency.
[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.2-*]
The petition charged that the defendant pretended to claim the land sought to be recovered under an alleged will of the plaintiff's intestate, which had never been probated, and prayed its cancellation. The defendant in her answer denied that she claimed under the will, but set out the alleged will in extenso. The plaintiff specifically demurred to so much of the answer as set forth the will on the ground of irrelevancy. Held that, though the will may not be relevant to the real issue in the case, yet, as the plaintiff in her petition called on the defendant to produce this instrument and prayed its cancellation, the averments respecting it are responsive to the plaintiff's own allegations and prayer.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 200, 201; Dec. Dig. § 98.*]
The defendant also averred that the plaintiff's intestate died shortly after his marriage, and that, in ignorance of the fact that a child would be born to his widow, she entered into an agreement with her respecting the disposition of her husband's property. This matter is irrelevant, because the defendant claimed no right or benefit under the agreement, and because any arrangement between the plaintiff as an individual and one of the defendants would not estop the former in her representative capacity.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 200, 201; Dec. Dig. § 98.*]
There were some special grounds of demurrer relating to the relevancy of certain averments in the answer; but, as they may properly be considered as matters of inducement to the material averments of the defense, there was no error in overruling these grounds.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 444-440, 449^52; Dec. Dig. § 194.*]
In a suit instituted by an administrator, a defendant is an incompetent witness to testify in his own favor concerning transactions and communications with the deceased person, whether such transactions or communications were had by such deceased person with the party testifying or with any other person. Acts 1900, p. 57.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 696, 697; Dec. Dig. § 160.*]
Some of the excerpts from the charge were constructed to fit the allegations of the answer setting up a parol express trust, and for that reason were erroneous.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Action by Mrs. D. N. Wilder, as administratrix, against Mrs. F. E. Wilder and another. Judgment for defendants, and plaintiff brings error. Reversed.
A. H. Davis, of Atlanta, for plaintiff in error.
Dorsey, Brewster, Howell & Heyman, for defendants in error.
EVANS, P. J. Mrs. Dovie N. Wilder, as administratrix of her deceased husband, brought an action against Mrs. F. E. Wilder, the mother of the plaintiff's intestate, to recover certain realty. It was alleged that the legal title to the property was in the plaintiff's intestate, but that the defendant claimed title under an alleged will of the plaintiff's intestate, which had never been probated, and was void because of the birth of a child after its alleged execution, there being no provision in the will in contemplation of such an event. Petitioner prayed for the cancellation of the will and a recovery of the property. The defendant in her answer admitted that the legal title was in the plaintiff's intestate, but averred that the equitable title was in her, firstly, because the property was purchased with her own funds and the legal title was taken in the name of her son, under an understanding and agreement that the property was always to be hers, and that the son should make to her such conveyance as she might require; and, secondly, that the property was purchased with the joint accumulations of the savings of herself, her sister, and her son, and the title was taken to the son under an agreement that the property-was to be hers, charged with the right of the son and sister to live in the house so long as defendant occupied it as a home. The sister of the defendant was made a party to the suit, and adopted the defendant's answer as her own. The trial resulted in a verdict for the defendants, and a new trial was refused.
1. The plaintiff's demurrer challenged the sufficiency of the defendant's allegations to raise an implied or resulting trust. Express trusts are those created by agreement of the parties; implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties. Civil Code, § 3732. Implied trusts are sometimes called resulting trusts. Civil Code, § 3739, enumerates the following instances of circumstances where a trust will be implied: ...
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