Dissenting Opinion
dissenting).
These proceedings were instituted on the 10th day of November, 1891, before a. Justice of the Supreme Court sitting, in Chambers, as a court of equity, by Mary C. Aldrich, Helen B.
In June, 1897, the cause, as revived, was submitted to a Judge of the Circuit Court of the Eirst Circuit, who, in the month of October following, filed a decision and a decree in favor of the complainants. For certain defects in the matter of parties to the bill of revivor, that decree was reversed and the case remanded. Douglas K. Brown, too, having come of age and deeming his interests to be adverse to those of the other complainants, moved that his name be stricken from the record as that of a party plaintiff. His motion was granted, and he was subsequently made a party defendant. Other proceedings were had and finally the case, entitled as above, was again, in July of this year, argued before another Judge of the Eirst Circuit, who also rendered a decision and signed a decree granting the relief prayed for in the original bill. The cause now comes to this court on appeal from that decree.
At this point, we wish to call attention to the fact that in the decree entered July 21, 1899, which purports to revive the original suit and to place it in the same plight and condition as it was in just prior to the death of W. Jas. Smith, the name of Charles E. S. Swinton as a party plaintiff is omitted and that of Helen
The allegations of the original bill are, in brief, as follows: That complainants are respectively related to the late Martha O. Swinton, thus: Henry S. Swinton and Charles E. S. Swinton as brothers, Helen M. Seal as sister, Mary C. Aldrich, Helen B. Ring and Harriet N. Brown as nieces, and Douglas R. Brown and Norman Brown as nephews, and that these complainants are the only heirs at law of said Martha C. Swinton; that Douglas R. Bi’own and Norman Brown are minors; that said Martha C. Swinton was possessed in her own right, during her life of a certain piece of land described; that Martha O. Swinton died on or about August 4,1891; that for several months prior to her death, she suffered from a malady which finally resulted in her death and which, toward the close of her life, confined her to her room and bed; that for many years past it had been and, at the time of the execution of the deed hereinafter mentioned, was the intention, desire and purpose of said Martha O. Swinton to so leave and dispose of her said property that, at her death, its beneficial ownership, use and occupancy should be secured to her nephews and nieces above mentioned, in equal parts and rights
The prayer is as already stated above, and, in the alternative, that respondent be ordered to convey the property to the nephews and nieces named. A general prayer of relief is also added.
Respondent in his answer admits the relationship of the parties, the minority of the two nephews, the ownership by Martha of the property mentioned, adding that it was conveyed to her by him in 1868 for no consideration other than the affection and friendship which he bore towards her; admits the facts stated in the bill concerning Martha’s illness, except that he says that she was confined to her bed for only a few days; denies the truth of the averments concerning Martha’s intention as to the disposal of her property; admite the existence of friendly and confidential relations .between himself and Martha and the fact that he was her most trusted friend and adviser in regard to her property and business transactions; denies the truth of the allegations as to how he obtained the deed and states the facts on that subject to be these: that about three or four weeks before the death of said Martha O. Swinton, she sent for the defendant to come and talk with her about the disposition of her property in case she should not recover from the illness from which she was then suffering; that said Martha C. Swinton then and there told him that she did not want to show any partiality toward any of her relatives in the distribution of her property, and that she did not wish to leave it in such a manner that they could divide it up or dispose of it, as she desired that it might remain intact in order that they might all of them at all times have a place where they could live if they met with reverses or were unable to provide themselves with a home elsewhere. She also stated to the defendant that there were so many of them, she was afraid that unless there was some one person having control of the matter, they would get to squabbling among themselves and cause trouble; that the said Martha O. Swinton, without suggestion on the part of the de
The instrument in question is in form an absolute deed with habendum, “to the said W. J ames Smith his heirs and assigns to his and their use and behoof forever.” Then follows this clause: “But it is my wish that the said premises may at all times be available for a homestead or place of dwelling for any or all of my blood relations of or within the second degree of consanguinity to me in the discretion of the said W. James Smith, or of him whom he shall appoint by deed or will for the purpose. The interpretation of the degrees of consanguinity to be that given by Blackstone.”
The questions which now present themselves for determination are, first, whether or not the facts and circumstances attending the execution of the deed were such as to charge the property conveyed with a constructive trust, and, second, whether or not the language of the deed itself is such as to create a precatory trust.
The contention of counsel for the present respondents is that the evidence adduced fails to show that the deed was obtained by fraud or under other circumstances such as will justify the Court in declaring that a constructive trust exists, and that the language of the deed is wholly insufficient to create a precatory trust. For the complainants, the opposite view is urged on both subjects.
Undisputed evidence shows that Martha C. Swinton was, at the time of the execution of the deed on July 28,1891, and for at least two or three weeks prior thereto had been grievously ill. About two weeks prior to the date named she, realizing that her end was near and desiring to make a final disposition of her property, which consisted solely of the piece of land now in controversy and a few articles of personalty, sent for W. J. Smith, who, as is admitted, was her most trusted friend and adviser and between whom and herself most confidential relations existed, to
We are satisfied from the evidente that at that time it was Martha’s intention and desire to make a last and final disposition of her property, testamentary in its character. Whether she then had in mind a will or a deed is not, perhaps, entirely clear, but the circumstances of the case and the respondent’s own evidence furnish strong ground for believing that a will was what she first desired. She had often for a long time past and even during the period of her last illness talked of leaving her property at her death to certain persons (the question of beneficiaries will be hereafter referred to) and the usual and ordinary method of such a disposition is by will. Moreover, the evidence shows that Smith advised her against making a will because of the cost of proceedings in probate and because of the possibility of a contest by relatives not provided for in the will. There would have been no necessity for this advice if she had not suggested a will. The subject was certainly discussed to some extent. See evidence of Smith, p. 86: “Q. She spoke of the uncertainty of establishing a will? A. Yes, while the question of litigation sometimes ¿rises there was some of her relatives who might have been living that would bring a suit in sometimes. Q. So that that question was canvassed in her mind? A. She must have been thinking it over herself, she only mentioned the will the first time and then she dropped the idea. Q. She adopted the deed then as a surer method of giving the property to those whom she preferred? A. That is the way I understood it, yes, that is what she meant.”
The thought of a will, then, having been abandoned and, as we believe, by reason of the advice given by Smith, Martha, to use Smith’s own words, adopted the deed as the surer method of giving the property to those whom she preferred. But had she in mind an absolute deed granting the whole beneficial as well as the legal ownership to Smith, or did she desire simply to con
Smith, it is true, while on the witness stand, at times denied in toto that he held the legal title in any trust capacity and claimed that the deed was intended as an absolute conveyance to him, but the truth of these assertions is amply disproven by his formal answer on file herein, his other testimony in the case and by other evidence. In paragraph 7 of the answer he says, “that the said Martha O. Swinton, without suggestion on the part of the defendant, stated that she had thought of making a will, but was afraid of the uncertainty of establishing a will, and thought it had better be done by deed, thus placing the property in a way that by his deed or will it might eventually go to the relatives whom he knew that she preferred should eventually possess it. in which opinion the defendant concurred.” “Well, if you must have it, I will state that it was her wish eventually that the boys named in the bill of complaint and her niece, Hattie Brown, should have the residence and that property, leaving it at my discretion to consider whether or not their conduct should deserve such a disposition of the property eventually. * * * She
“In other words, she would not have made the deed in the way that she did if she had supposed that you would have devoted it to other purposes than those she wished and although she conferred upon you an absolute discretion, it was in the confidence that you would use that discretion in favor of her relatives?” A. “Of course, if she had not complete confidence in me she could not have given me complete discretion.” Q. “And you encouraged her in thinking that you would so use your discretion, for the benefit of her relatives?” A. “Well, I would not so encourage her when I had very little to say about the matter, it was done in a very short time.” Q. “You allowed her to think that; you did nothing to dissuade her from that idea, not for yow own benefit, for the benefit of those whom she said?” A. “Well, I think that was the idea.” Q. “So that at the time of making this deed to you, she did not believe and you did not give her to believe that you were seeking your own profit or that you would take advantage of the absolute character of the deed, in order to use the property for your own use?” A. “/ don’t think that she thought or dreamt it.”
The clause quoted above as being tacked on to the habendum, whether or not it is sufficient in itself to constitute a precatory trust, is certainly strong corroborative evidence that it was the desire and intention of Martha that the grantee should hold the property subject to a trust of some sort.
Upon this and all the other evidence in the case, then, we believe -and find that it was the desire and intention of Martha at the time she asked Smith’s assistance in the drawing up of the necessary instrument, that the whole beneficial ownership in the
The fact that Martha on one or more occasions said that she would leave the property to the children “as a homestead,” does not necessarily show that she.intended for them a life estate only. If that had been her intention she would have made some provision as to how the remainder was to be disposed of. No mention of any such remainder, or provision concerning; the same was ever made by her. Moreover, where she did contemplate provision for life only, she said so distinctly, as in the case of Oapt. J. II. Brown. We believe on ail the evidence that she did not intend to limit the estate of the five for life.
Returning now to the subject of the drawing of the deed, we find that Smith delayed about a week after his conversation with Martha above referred to and finally on the 28th of July, 1891, produced the instrument. Martha, after reading it over, said: “What made you do it that way?” to which Smith replied, “That’s the best way to do it, so that there shall be no quarreling,” or words to that effect. Martha then signed the deed, and about ten or fifteen minutes later acknowledged it before a notary. We believe from the evidence that the deed was executed in the belief, on Martha’s part, that in that way would her will concerning the property as above stated be accomplished and in the full confidence that Smith would faithfully carry out her wishes; further, that Smith led her to believe that if she signed the deed .as drawn he would see to it that the property did go in accordance with her wishes, to her five nephews and nieces, that but for his interference and advice she would have disposed of her property -either by will or by deed unmistakably defining the trust de sired, and that Smith, in advising her as he did and in obtaining
It would be against conscience to permit Smith or his heirs to retain the advantage thus gained. Under circumstances such as these, equity regards the grantee as a trustee ex maleficio. The constructive trust so declared is not based upon the promise itself, but arises out of the intentional fraud committed. The bill sufficiently alleges facts upon which this relief can be granted in this case.
“In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of tny subsequent holder, until a purchaser of it in good faith and without notice acquires a higher-light, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or cx delicto, are practically without limit. The principle is applied ivherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrongdoer.” — 2 Pom. Eq. Juris., Sec, 1053,
“A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like— and having thus fraudulently obtained the title, he retains, uses, and claims the property as absolutely his own, so that the whole-transaction by means of which the ownership is obtained, is in-fact a' scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement.” — Sec. 1055, lb.
“It will be observed that in all these cases there is something more than the mere receipt of the title to real estate, with a parol promise to hold it, subject to a trust. There is an interference with the owner of the property, by means of which he is induced to forego the execution by himself of his designs for the benefit of a third person, and to leave the execution to the party deluding him by a false promise, and through such false promise obtaining title to the property. * * * The distinction is this: If A voluntarily conveys land to B, the latter having taken no measures to procure the conveyance, but accepting it, and verbally promising to hold the property in trust for 0, the case falls within the statute, and chancery will not enforce the parol promise. But if A was intending to convey the land directly to C, and B interposed and advised A not to convey directly to C, but to convey to him, promising, if A would do so, he, B, would hold the land in trust for O, chancery will lend its aid to enforce the trust, upon the ground that B obtained the title by fraud and imposition upon A. The distinction may seem nice, but it is well established. In the one case B has had no agency in procuring the conveyance to himself. In the other he has had an active and fraudulent agency. In the one ease he has done nothing to prevent a conveyance to the intended beneficiary. In the other he has, by false promises, diverted to himself a conveyance about to be made to another.” — Lantry v. Lantry, 51 Ill. 464-466.
See also Larmon v. Knight, 140 Ill. 232; Dowd v. Tucker, 41 Conn. 197, 198, 205; Fischbeck v. Gross, 112 Ill. 208, 214; Hooker v. Axford, 33 Mich. 452, 456; Barrow v. Greenough, 3 Vesey Jr. 151, 154; and Giffen v. Taylor, 139 Ind. 373.
Some of the cases seem to go to the extent of holding that even where the promise to hold for the benefit of another, or to convey to another, is made in good faith, if the grantee thereafter declines to carry out his agreement, equity will grant relief by declaring the grantee a trustee; but we need not now pass upon that question.
Hattie Brown, one of the nieces, died after the trial and prior to the filing of the bill of revivor. The record fails to show who her heirs are.
In view of the conclusion we have reached on the subject of
In our opinion, Priscilla E. Hassinger, Annie H. T’urton and Henrietta E. Ross, the heirs of W. James Smith, deceased, should be declared trustees of the property described in the deed under consideration for the use of Mary C. Aldrich, Helen B. King, Norman Brown and Douglas K. Brown, and other, if any, the heirs of Harriet N. Brown, and should be ordered to convey the said property by a good and sufficient deed to said beneficiaries.
The case is remanded to the Circuit Judge of the First Circuit, with instructions to correct, in the particulars above specified, the decrees reviving the original cause, if it be found that such decrees were in fact erroneous in those respects, to ascertain who the heirs of Harriet N. Brown are, and to enter a decree in accordance with the foregoing views.
Dissenting Opinion
DISSENTING OPINION OP
I am unable to concur in the opinion of the Court. Were I not satisfied that the defendants should prevail in this case a difficulty presents itself which cannot be overcome on this appeal as the case now stands.
The original plaintiffs were Mary O. Aldrich, Helen B. King, Harriet N. Brown, Henry S. Swinton, Charles E. S. Swinton, Helen M. Seal and Norman Brown, and Douglas K. Brown, by their next friend W. O. King.
Henry S. Swinton has practically disclaimed in his testimony, and it is perhaps immaterial as to him whether he is party plaintiff or defendant. Helen M. Seal, by stipulation, was made party defendant, but an order of the Court signed October 24th, 1899, contains the following, — “said suit shall hereafter be entitled
“An attorney cannot accept employment from adverse litigants at the same time and in the same controversy, though his intentions and motives are honest. The rule is a rigid one and designed, not alone to prevent the dishonest practitioner from fraudulent conduct, but as well, to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests rather than to enforce to their full extent the rights and interests which he should alone represent.”
Strong v. International Building Loan & Investment Union, 82 Ill. App. 426 and see Weeks on Attorneys p. 548, 15 Ency. Pld. & Pr. p. 584. It is a familiar rule of equity that all persons materially interested in the event of the suit, must be made parties. This confusion with reference to the parties and their appearance is, in all probability, due to the fact that this litigation has been before the Courts, in one way or another, since 1891, and many different counsel have appeared in the case. As I desire that no misunderstanding shall arise with reference to what I have above stated, I will say that no reflection of any kind is directed against counsel in the case, either for the real plaintiffs
Counsel for Mrs. Aldrich, Mrs. Ring, Harriet N. Brown and Norman Brown, who should be the real plaintiffs in this case as it now stands, rely for relief upon two grounds. They, in the first place, contend that a precatory trust was created. While the doctrine of precatory trust is firmly established it is certainly looked upon with great disfavor. 2 Pom. Eq. Jur. Sec. 1017. The doctrine depends upon a presumption of law that a person using words of belief, desire, will, request, wish, hope, etc-., intended to give to those expressions the meaning of direction, command, etc. The doctrine is applicable to wills which are made in contemplation of death and not to deeds. In a will the testator must leave to others the execution of his wishes. He is obliged to substitute as it were the discretion of another for his own. If it is claimed that the deed in question was to serve the purpose of a will, the answer is that it was not a will, and I do. not believe in extending the doctrine of precatory trust. Even though the deed created a precatory trust it would contravene the contention of the real plaintiffs. By the deed the relatives within the second degree of consanguinity would be the cestuis que trustant, but counsel for the real plaintiffs rely upon parol proof to establish the trust in their behalf in common with Douglas R. Brown. This is directly contrary to every principle of law and equity. It is an attempt to vary a written instrument by parol proof, which manifestly cannot be done. 1 Perry on Trusts, 3rd p. 113, in note and case there cited; Irvine v. Sullivan, Law Rep. 8 Eq. 673.
“When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing, and all oral testimony of a previous colloquim between the parties, or of conversation of declarations at the time when it was completed or afterwards, as it would tend in many instances to substitute a new and different contract from the one*154 which was really agreed upon, to the prejudice, possibly of one of the parties, is rejected.” 1 Greenleaf Evi., 13th Ed., p. 321.
“The writing, it is true, may be read by the light of surrounding circumstances in order more perfectly to understand the intent and meaning of the parties, but as they have constituted the writing to be the only outward and visible expression of their meaning, no other toords are to be added to it, or substituted in its stead. The duty of the court in such cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used.” Id. 322.
* * * “The rule excludes only parol evidence of the language of the parties, contradicting, varying or adding to that which is contained in the written instrument, and this because they have themselves committed to writing all which they deemed'necessary to give full expression to their meaning, and because of the mischiefs which would result if verbal testimony in such cases were received.” Id. p. 328.
The degrees of consanguinity should be computed according to the common law; but if it was intended to create a trust and it is uncertain under which rule the degrees are to be computed, and for this reason the deed to Smith is inoperative, the land must go to all of the heirs of Martha Swinton and not to the real plaintiffs.
The real plaintiffs in the second place, contend that in case no precatory trust was created, the facts and circumstances show a constructive trust. A constructive trust must under the circumstances in this case be established by actual fraud; there is no element of constructive fraud involved. If such a trust exists, it rests entirely upon a deliberate intent to cheat and defraud Martha Swinton when the deed was signed. To sustain this contention the evidence should be clear and convincing. 15 Am. & Eng. Ency. of Law, 1195; Lantry v. Lantry, 51 Ill. 458.
Instead of being convinced that there is actual fraud, I am convinced to the contrary. Counsel for the real plaintiffs state the case as strongly in their favor as it can be put. This is what they say, — “Now those whom she preferred, it is perfectly clear from the evidence in the case, were the five children already mentioned, so that it seems pretty clear that at the time W. James
The conduct of the real plaintiffs does not sustain their statements that there was to be a trust deed. They claim that it was perfectly understood, that there was to be a trust deed executed, in which they were to be the beneficiaries, yet not one of them makes any suggestion as to what it should contain. After it is executed not one of them ever inquires about it of Miss Swinton, nor makes any inquiries as to its terms. Miss Swinton herself only makes one allusion to it, according to the statement of Hattie N. Erown, who testifies that Miss Swinton said “I don’t like those papers, I don’t like them, but she supposed he knows best, that it will be all right, she hopes so.” I cannot understand how persons who claimed almost a vested right to property should be as remiss as the plaintiffs have been in this case. After the lips of Martha Swinton were sealed so that she could not vindicate her life-long friend and benefactor from the calumny to which he is now subjected, vigorous inquiry and search begins to be made, and immediate steps were taken to establish what the real plaintiffs claim to be their rights. Why this sudden activity after,
None of the witnesses for the plaintiffs, with the exception of Mahúna, testify to anything that toot place at the time of the execution of the deed, and the alleged fraud of Smith depends entirely upon assumption. All of the witnesses for the real plaintiffs are interested, with the exception of the plaintiff Henry S. Swinton, who, in his testimony disclaims all interest, and Mahuna. Mr. Swinton’s testimony is indefinite and unsatisfactory. There is nothing in the case which does not entitle Mr. Smith’s testimony to as much weight as any or all of the witnesses for the real plaintiffs, and he positively and categorically denies that any misrepresentations were made by him to Miss Swinton with the circumstances strongly in his favor. A few disconnected statements of his, partly words of the lawyer addressing questions to him, with reference to what was taking place in Miss Swinton’s mind as to her intentions, are apparently of great weight with the court in the establishment of a trust. The following is one of such questions, “So that at the time of making this deed to you she didn’t believe, and you didn’t give her to believe that you were seeking your own profit, or that you would take advantage of the absolute character of the deed in order to use the property for your own use? A. I don’t think she thought or dreamt it.” This question and answer must have been allowed through inadvertence. Mr. Smith could not possibly have known what was taking place in Miss Swinton’s mind, excepting as indicated by her conduct and words. His answer is not evidence. The question is misleading for the reason that it embraces several propositions which do not admit of one answer. The testimony elicited under such circumstances is to my mind, entitled to no consideration.
Mr. Smith’s testimony, taken as a whole, shows conclusively that the property was to be given to him and when he was
I fail utterly to understand how a constructive trust can be grafted upon a deed in the very teeth of the express words of the deed itself. If there is to be a trust the court might possibly supply that which is omitted from the deed, but it ought not directly violate its provisions. The trust, if any trust exists, is not limited to the five nephews and nieces, but extends to all those within the second degree of consanguinity. It would be difficult to find a clearer case of varying a written instrument by parol testimony.
The question of undue influence does not arise in this case. There is no claim that Smith persuaded Miss Swinton to give the land to him, though she had intended to give it to her nieces and nephews, that is, that he over-persuaded her to abandon her intention to give it to them, and induced her to give it to him; but the contention is that the deed was one that would carry out her wishes when he knew that it did not express her wish at all.
The real plaintiffs now ask the court to declare a trust in their favor but there is no contention that the trust as established by the opinion of the court is anything like what Miss Swinton desired. There is no provision here as to the Browns; there is no provision with reference to the different members of the family having a homestead on the premises; there is no provision for Miss Swinton herself in case she had survived; there is no trustee to control the premises and protect the plaintiffs against each other, which was certainly Miss Swinton’s desire, else what would be the object of a trust deed? It is not to be presumed that Miss Swinton desired to have a trust deed just for the purpose of appointing a trustee merely with no powers; and she makes no objection when Smith replies to her “that is the only way I can stop a row.” The court in this instance declares a trust which to my mind violates the intention of Miss Swinton beyond any doubt. Even Mrs. Helen B. King- says of this important trust deed, “she (Miss Swinton) didn’t name the proposed trustee * * * she ¿idn’t mention the tetras or any of the terms
A question has arisen in this case with reference to the parents of Douglas K. Brown one of the present defendants. He claims to be the son of Martha Swinton. This issue, it seems to me, should be tried and disposed of before any decision can be given upon the merits of this case. If his contention is true it discredits entirely the testimony of the real plaintiffs in the case. If the deed contained language sufficient to create a precatory trust, and such a trust could be created by a deed, all the relatives within the second degree and not the real plaintiffs are entitled to the benefit of a decree setting aside the deed, but I have in this opinion given my reasons why I do not consider a precatory trust was created.
I therefore respectfully dissent from the opinion of the Court.
Lead Opinion
OPINION OF THE COURT BY