3 F. Cas. 38 | U.S. Circuit Court for the District of Pennsylvania | 1860
If the property had been devised to John and James under a parol agreement by them, that they would hold it in trust for Harriet, the case would be like that of Hoge v. Hoge, 1 Watts, 163, and numerous others, in which equity treats the fraudulent procurer of the legal title as a trustee ex maleficio.
But in this case the title of the brothers did not arise by deed from Thomas. Their title was by descent; cast upon them by the law of the land, because of the intestacy of their brother. The intention of Thomas to make a devise of his property to his natural daughter having never been legally executed, gave her neither a legal nor equitable title to it John and James are not the fraudulent grantees of the land, and have not received or accepted a legal title in trust from Thomas. They have made a solemn promise to their brother on his death-bed; and assuming the conspiracy charged in the bill (though not substantiated in the evidence), that in consequence of that promise a will was not made, was this anything more than a parol contract of which chancery is asked to enforce the specific execution? The bill sets forth no acts or declarations from which a fraudulent intention would necessarily be inferred. The exhortation to the brother to make his mind easy, that he was not in danger of immediate dissolution, may have been made in perfect good faith and kindness. Nor does the fact that the decease took place before the arrival of the scrivener, leave any necessary inference that a will would have been made if the promise had not been made. As a naked promise, without consideration, it would not be enforced by equity in the face of the statute. As a trust it could not be, where the alleged trustee did not receive the property by some gift or devise to which a trust was annexed. Nor was the trust left out of a will or conveyance on account of any promise of the devisee or executor, as in the case of Oldham v. Litchfield, cited from 2 Vern. 505, where lands were charged with an annuity on proof that the testator was prevented from charging them in his will, by a promise of payment by the devisee; nor is the case like the other case cited from 1 Vern. 296, (Thynn v. Thynn,) where a son induced his mother, by promising to be a trustee for her, to prevail on her husband to make a new will and appoint him executor in her stead. In these eases from Ver. non, the conduct of the devisee was a fraud practiced not only on the party intended to be benefited, but on the testator from whom he received the legacy or devise. A mere promise is not enough to take the case out of the statute, else the statute which requires a will to be in writing would be inoperative. The foundation of the decree is the fraud of the person who has obtained the legal estate, or other benefit under the will, by means of a promise which he never intended to perform.
II. But assuming the charges of the bill to be true and well pleaded, and that the heirs expectant, when they made this promise, fraudulently prevented the intestate from making a will in favor of his daughter; (as on a demurrer we are bound to assume) still the bill does not present a case of a trust which adheres to the title in the hands of the promisees, and their heirs or others having notice: it is but a parol promise or contract which, on account of the fraud prac-tised on the intestate and his intended dev-isee, chancery will compel the heir to specifically execute, either by transfer of the property or its value to the intended devisee. But as a parol contract, and not a trust descending with the land, or a covenant binding it in the possession of the heirs, how can a bill to enforce a mere personal contract be maintained against the heirs alone? Admit that a chancellor would have compelled the brothers on a bill filed in their lifetime, to make good this promise made to Thomas in favor of his daughter, either by actual transfer of the property itself, or payment of its value. Still the remedy in equity, as at law, would be against the personal representatives, the executors or administrators of the promisors. The estates of the decedents, whether they came by inheritance from the intestate brothers or otherwise, might have been taken in execution to satisfy the judgment or decree. In this way the property inherited by the present defendants might all have been made liable as assets.
HI. But assuming that the bill might be so amended by making the executors parties, if any there be, and that the claim of complainants might be relieved from this difficulty by
IV. Infancy is an involuntary disability, and would justly be considered in a case of this sort, but as in courts of law cumulated disabilities will not be permitted to hinder the running of the statute of limitations, so in courts of equity voluntary disabilities, such as coverture or absence from the state, even where not cumulative, will not be received as a defence against the charge of staleness. At all times this jurisdiction of enforcing parol trusts or parol promises to convey property, is one to be cautiously exercised. Courts of chancery proceed in these eases against the letter of the statute, on the ground of preventing frauds from being successful, by pleading the statute against frauds. But the spirit as well as the letter of these statutes would be wholly annulled, if legacies or devises not written in a will, or contracts for the sale of realty were enforced, by the vague, uncertain, and too often imaginary recollections of old women or old men after a great number of years. Those who swear to conversations are never accurate; the omission of a part of a conversation, the leaving out of a single adverb, pronoun or preposition, may unintentionally convert a partial truth into a great lie.
V. After forty years’ experience at the bar and on the bench, I must say, that I think courts had better never have relaxed the stringent rule of these statutes. Courts, as well as juries, are too apt to be led away by the cry of “Fraud!” We all hate fraud, and aré too willing to assume the functions of an overruling Providence, and punish it by arbitrary power. This feeling of virtuous self-complacency too often leads to hasty decisions and dangerous precedents. I have known a valuable property converted into a trust, by the testimony of an old woman who recollected and construed a nod, .after some twenty-two years, into the acknowledgment of a trust. See Jones v. McKee, 3 Barr, [3 Pa. St.] 496.
The promise which this bill calls upon us to enforce against the heirs of the promisors (on the recollection of one or two old women, who do not agree with one another, nor with that laid in the bill) purports to have been made some twenty-five years ago. The •disability of infancy was over more than ten years before the filing of this bill. There is no allegation of any fraudulent concealment of her rights from the complainant; no reason why she might not as well have brought her suit during the life of her first husband, as in that of her second.
However romantic the story may be, that •.seeks to divest men of property held in descent by the second generation, on a cry of fraud set up after all the alleged parties to it are long dead and their executors after them, I am happy to say, that the rules which govern a court of chancery in cases of this kind fully justify me in dismissing this bill as stale, and that the lapse of time appearing from the face of the bill itself is a complete bar to the relief sought.
Decree for defendants.
