152 N.W. 114 | S.D. | 1915
Lead Opinion
One Ledyard Verdine Lewis wrote a letter, Exhibit A, to the plaintiff L- Annis Pound (designated in the letter as “Lou”) announcing the death of his wife, a sister of the plaintiffs. In the letter he said:
“Ada left some money in my hands, and some property to- be turned into money and given to Dep, Ella and Lou mostly, as I see or think right. Under the laws there would be nothing, but I do not think I want it so. I will study out the best thing and do it. She left everything to me and she rarely said anything about you or her sisters or Dep. I am left rather in the dark about doing the work.”
He afterwards wrote to the same plaintiff a letter, Exhibit B, inclosing a draft for $283.44, in which he stated:
“I am sending- you herewith a draft on Chicago' for $283.44, your share of money left in my hands, for distribution by Ada. 1 am following- her directions in the distribution, as I understood her. * * * It may be that Emma and Harvey will think it hard to be left out in this deal, but I think Ada thought it would be 'doing more good the way she said it.”
The persons mentioned in Exhibit B as Emma and Plarvey were another sister and -brother of the deceased. At the same time he wrote Exhibit B, Mr. Lewis also wrote a letter to the plaintiff Adelbert B. Annis (designated in Exhibit A as “Dep”), inclosing a draft for $283.44 and a letter to the plaintiff Ella M. Rogers (designated in Exhibit A as “Ella”), inclosing a draft for
“was made without consideration other than the agreement of the said Ledyard Ver dine Lewis to carry out said trust, and, although an absolute deed upon its face, it was given in trust only for the said Ledyard Verdine Lewis to sell said real property and convert the same into money and then to distribute and pay said money derived from such sale equally between these plaintiffs.”
Judgment was entered accordingly, and from the judgment and order denying a new trial, the defendants Flora E. Huggins and the Huggins Realtjr Company appeal.
“Sec. 302. No trust in relation to real property is valid, unless created or declared:
“1. By a written instrument, subscribed by the trustee or by his agent thereto authorized by writing.
“2. By the instrument under which the trustee claims the estate effected [affected] ; or,
“3. By operation of law.”
“Sec. 1614. Subject to- the provisions of section 302, a voluntary trust is created, as to the trustee, by any words or acts of his, indicating with reasonable certainty:
“1. His- acceptance of the trust, or his acknowledgment, made upon- sufficient consideration, of its existence; and,
“2. The subject, purpose and beneficiary of the trust.”
Taking- up the first reason, and eliminating, for the present, any claim of beneficial interest in the property by the trustee, the declaration plainly shows- that the alleged- beneficiaries are uncertain. The discretion of the trustee must be invoked to determine who the beneficiaries are to be. The direction by Mrs. Lewis is to give the property “to Dep, Ella, and Lou mostly as Mr. Lewis sees or thinks right,” certainly vested in him the right to determine to whom he wo-ul-d g-ive the property. ,It was the husband’s, judgment in the matter that was to be the determining factor — no-t her own. Evidence was- introduced as to statements made by Mr. Lewis in his lifetime tending to show that it was Mrs,. Lewis’ wish- that all of her property- should be equally divided between the three persons who- are plaintiffs in this action. Such evidence was- incompetent under our statutes, and a trust based thereon- cannot be sustained. The existence of the trust, so far as the real estate is concerned, must stand or fall upon the recitals of Exhibits A and B. If this action had been brought against Mr. Lewis in his- lifetime, it is -clear to us that no trust in the real property -could have been decreed. The language of the New York Court of Appeals o-n this subject in the Tilden Will case is clear and comprehensive, and applies to the case under consideration:
“By an efo-rceable trust is meant one in which some person or class of persons have a right to all or a part of a designated*305 fund, and can demand'its conveyance to them, and in case such demand is refused may sue the trustee in a court of equity and compel compliance with the demand. In this case the testator devolved upon his executors the duty of selecting the benefiiciary, and there is no person who has the right to enforce that duty or demand any part of the, estate in case the executors refuse or neglect to act. The power attempted to be vested in the trustees cannot be controlled or enforced; and, whether the provisions of the will relating to the residuary estate be regarded as creating a trust or power in trust, they are in either case void.” Tilden v. Green, 130 N. Y. 29, 65, 28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487; Perry on Trusts (6th Ed.) §§ 116, 248-253; Underhill on Trusts and Trustees, pp. 19, 20, 328-330.
But it is urged that the language of Exhibit B sets the matter at rest, and that it thereby appears that it was Mrs. Lewis’ wish that all of the property be divided equally between the three plaintiffs. In the first place, there is no clear and satisfactory evidence that the money paid to the three plaintiffs constituted all of the money which Mrs. Lewis had at her death. The only satisfactory evidence in the case is to the effect that each of the plaintiffs received the same sum; but if, for the purpose of establishing a trust in personal property, it was proper to admit parol evidence tending to show that such sums constituted all of the money left -by Mrs. Lewis, it is not permissible to use -such evidence to bolster up the claim' that thereby any real property which Mrs. Lewis might have had in mind was to be distributed solely and equally to the three plaintiffs. Nor are the recitals of Exhibit B to- be taken as a repudiation of the assertion by Mr. Lewis in Exhibit A of his right to exercise discretion in the disposition of the property. Exhibit B related solely to money. That letter, interpreted with Exhibit A is, in effect, simply a declaration that it was Mrs. Lewis’ wish that whatever money he decided to give the three plaintiffs out of the particular'money she left in his hands should be divided equally between them, to the exclusion of the other brother and sister.
The judgment and order appealéd from are reversed, and the cause is remanded, for further -proceedings not inconsistent herewith.
Concurrence Opinion
(concurring). I am of the view that the evidence is wholly insufficient and incompetent to show that Mrs. Lewis conveyed the real property in question to her husband in trust.