140 Minn. 266 | Minn. | 1918
In an action to recover the possession of certain real property defendants had a verdict and plaintiff appealed from an order denying her motion for judgment or a new trial.
The ownership of the property was by the pleadings made the principal issue in the case. The jury by their verdict found the defendant, Margaret Thielen, to be such owner, and if that finding is sustained by the evidence, her right of possession is clear, for the case involves no leasehold or other like interests in or to the property. The verdict is challenged as not supported by the evidence, and, aside from an alleged error in the instructions to the jury, the assignments of error in that respect present the substantial question on the appeal.
There is no controversy about the foregoing facts; they are historical or explanatory, and lead up to certain pivotal questions upon which the evidence is flatly contradictory, with reference to which it may be said that, if the evidence produced by defendant is worthy of belief, the jury were justified in finding therefrom the following additional facts. Homung’s illness took a critical turn some time late in March, 1912, and plaintiff was called to his bedside, which she reached on the twenty-sixth of that month. Defendant presented competent evidence to the effect that soon after the arrival of plaintiff, Hornung called her attention to the fact -that he had made no will disposing of his property, and stated that he desired it to be divided equally between plaintiff and her sister, defendant herein. He further stated that he would have a notary called in to prepare a will or other instrument to give effect to his wishes
The evidence further justified the jury in finding that the promise and conduct of plaintiff in the respect stated in effect prevented Horn-ung from making a will or other instrument disposing of his property in accordance with his desire so expressed to plaintiff. The evidence also justified the jury in finding that in November, 1912, prior to the entry of the probate decree in the Hornung estate, plaintiff, with funds belonging to the estate, purchased from the owner the property involved in this action for the use and benefit of defendant, and formally presented it to her as her property, stating that she had purchased it for defendant, that it belonged to her and she might make such improvements thereon as she deemed best. The title was taken in the name of plaintiff, and this she explained was intended to protect the property for defendant and preclude defendant’s husband from mortgaging the same should he desire to do so to raise money for business purposes. Defendant had theretofore been in possession of the property as the tenant of the former owner, but she accepted the gift from plaintiff, continued in possession, paid the taxes subsequently accruing, and made certain valuable and permanent improvements upon the premises. She thereafter believed herself the owner of the property, and had no intimation to the contrary or of a claim of ownership by plaintiff until
The only question presented is whether, on the facts stated, the jury were justified in finding defendant Margaret Thielen to be the equitable owner of the property, with the legal title in plaintiff without beneficial interest, and so held in trust for the use and benefit of that defendant. The question must be answered in the affirmative. The ease comes within the rule applied by the authorities generally, that where a decedent in his lifetime makes known to his heir a desire that his property shall be disposed of in a particular manner, and by the acts and conduct of the heir decedent was prevented from making a will or other instrument giving effect to his intentions, -or was persuaded not to do so by the promise of the heir to distribute the property at the death of decedent in harmony with his directions, in reliance upon which promise no will was made, on the refusal of the heir to make such disposition at the proper time equity will convert the title acquired by him as heir into one for the use and benefit of those to whom decedent intended the property should go, with the legal title in the heir as trustee only. 2 Pomeroy, Eq. Jur. 919; 39 Cyc. 177; Brook v. Chappell, 34 Wis. 405; Tyler v. Stitt, 132 Wis. 656, 112 N. W. 1091, 12 L.R.A. (N.S.) 1087, 122 Am. St. 1012; Smullin v. Wharton, 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267; Parker v. Urie’s Exrs. 21 Pa. 305; Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L.R.A. 753. The refusal of the heir to comply with the promise is treated as fraudulent, and actual fraud in inducing the decedent to refrain from making a will neéd not be shown, and the statute of frauds has no application. Wilder v. Scholey, 83 Oh. St. 204, 93 N. E. 1098, 33 L.R.A. (N.S.) 995, 21 Ann. Cas. 1379, and authorities therein cited; Gilpatrick v. Glidden, 81 Me. 137. The property-in- question was purchased by plaintiff with funds of the estate, for the use and benefit of defendant, and constituted a part performance of her promise to divide the property with defendant and a gift' oi transfer of the same to her. It was accepted by defendant. Plaintiff is not therefore the owner of the property, except as she holds the record title. Defendant is the beneficial owner, and the legal title is so held
The point that the court erred in its instructions is not sustained. It may be conceded that a trust of this character must be shown by clear and convincing evidence, and that the court, at least when requested, should so charge the jury. But there was no such request in the ease at bar, nor proper exception to the failure to so charge. The exception appears not to have been taken until the jury had retired to consider the case. Plaintiff was in no way prejudiced.
Order affirmed.
On July 5, 1918, the following opinion was filed:
In denying appellant’s application for a rehearing in this cause we take occasion to say, that there may be no misunderstanding of the basis of our decision, that the verdict of the jury finding defendant to be the owner of the property in question was sustained upon the theory and ground that there was a parol gift thereof to defendant which she accepted. The statement of the evidence and the reference to the rules of law applicable to the question of the alleged trust was merely incidental to the issue respecting the gift, showing a reason therefor, and there was no intention of finally or otherwise adjudicating upon the rights of the parties as to property not involved in the action. Marvin v. Duteher, 26 Minn. 391.
Application for rehearing denied.