Brown v. Brown's Admr.

129 Ky. 138 | Ky. Ct. App. | 1908

Opinion op the Court by

Judge Barker

— Affirming.

The appellant’s cause of action is stated in the following excerpt from her petition: “Plaintiff says: That the estate of David Brown, her father, is indebted to this plaintiff in the sum of $500. That the claim arises in this wise: That during the lifetime of plaintiff’s mother, now deceased, her said mother was the owner of two slaves. That with her consent David Brown sold said slaves about 1847 to 1848 for the. sum of $500, and invested the proceeds thereof for the use and benefit of this plaintiff’s mother in a tract of land, taking the deed to himself. That during the lifetime of plaintiff’s mother the decedent, David Brown, recognized the claim of his wife, this plaintiff’s mother, for the said sum of. $500, and claimed to hold the same in trust for her. That this plaintiff’s mother died many years ago intestate, leaving this child as her only heir at law, and after her death her father, David Brown, chose to and did recognize said claim of $500 as belonging to this plaintiff, and claimed to hold said $500 in trnst for this plaintiff. That he- recognized said claim of $500 np to the time of his death, and claimed to be holding said sum of $500 in trust for this plaintiff.” Subsequently the plaintiff amended her petition, but in our opinion the amendment adds nothing to the value of the pleading. A general demurrer was filed to the petition as amended, and sustained by the court, whereupon the appellant (plaintiff) declined to plead further, and her petition was dismissed. From this judgment, she has prosecuted an appeal.

We are of opinion that the trial court.was correct in sustaining the demurrer. Appellant’s father, David Brown, died in 1905. He sold two slaves belonging to his wife in 1847 or 1848 for $500, which he invested in land, taking the title to himself. The money belonged to him as the law then stood. We think the allegations of the existence of a trust in regard to the money are entirely too vague to be enforceable. It had been a part of the estate of the father for 57 years. It does not appear that he accounted either to the mother or daughter for any interest on the money invested, and the fact that he gave it out in oral statements that he recognized the $500 as constituting a trust fund in his hands, first for the benefit of the mother and afterwards for the daughter, at best amounts to a verbal promise to pay that sum- to them at some future time, and thus constitutes an unexecuted promise, which cannot be en-.' forced as a trust. The rule is well settled that the subject- of the supposed trust, as well as the cestui que trust, must be definitely ascertained in order to be enforceable; and, if this is not done, no trust is established. In the case of Barkley, etc. v. Lane’s Ex’r, etc., 6 Bush, 587, it is said': “But the authorities all agree that to fasten a trust on property by mere parol declaration the language used must be clear and explicit, manifesting the owner’s purpose to transfer the right, and pointing out with certainty both the subject' of the trust and the person who is to take the .beneficial interest.” In the case of Krankel’s Ex’x v. Krankel, by, etc., 104 Ky. 745, 47 S. W. 1084, 20 Ky. Law Rep. 901, it is said: “If there is a mere intention to create a trust, or a mere voluntary agreement to do so, and the donor contemplates some further act to be done by him to give it effect, the trust is not perfect, and equity will not lend its aid to enforce it” — citing 2 Pom. Eq. Jur. section 997; Williamson v. Yager, 91 Ky. 282, 13 Ky. Law Rep. 273, 15 S. W. 660, 34 Am. St. Rep. 184; Roche v. George's Ex’r, 93 Ky. 609, 20 S. W. 1039, 14 Ky. Law Rep. 609. In 1 Perry on Trusts (5th Ed) section 86, it is said: “The subject-matter of the trust must be clearly ascertained, as well as the purposes of the trust and the persons who are to take the beneficial .interests. Loose, vague, and indefinite expressions are insufficient to create the trust. A mere declaration of a purpose to create a trust is of no value unless carried into effect. A simple promise of a future donation without consideration good or valuable creates no trust that equity can enforce. ’ ’ In the case of Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 90, the Supreme Court of the United States said: “So far as the personal property conveyed to With-row is concerned, it must be admitted that a trust may be established by parol evidence; but such evidence must be clear and convincing, not doubtful, uncertain, and contradictory, as in this case.” In the light of these authorities ,giving the allegations of the petition the fullest effect, we are of opinion that they do not state facts which show a complete and enforceable trust. As said before, at best they merely show an intention at some future time to set apart $500 of the settler’s money for the benefit of the plaintiff (appellant). Such an imperfect contract cannot be enforced as a trust.

Judgment affirmed.