122 Ga. 33 | Ga. | 1905
(After stating the facts.) Unless the allegations of the petition respecting the conduct of .the husband of the defendant relating to the intestacy of Mrs. Susie Finn will imply a trust which can be established by parol proof, the demurrer was rightfully sustained. Express trusts must be created or declared in writing. Civil Code, §3153. Hence, the parol promise alleged to have been made by John Finn to his first wife can not be upheld as an express trust. But if from the nature of the transaction it be manifest that it was the intention of Mrs. Susie Finn to make a will devising her property to plaintiffs, as alleged in the petition, and she was prevented from so doing by the fraud of her husband, whereby upon her decease he became vested with the absolute title to all her property as heir at law, equity will imply a trust. Civil Code, § 3159. “There is no law which requires a fraudulent undertaking to be manifested by writing. Those who use promises, which they make deceitfully, for the purpose of accomplishing fraudulent designs, are generally careful not to fur
Do the allegations of the petition show any fraudulent conduct on the part of John Finn? It is charged that Mrs. Susie Finn sent for her husband and “repeated to him several times what disposition she wanted made of her property,” it being the same described in the petition. “Thereupon the said John L. Finn said to his wife, ‘ I promise and swear to do everything just as you wish and as you have stated; ’ his wife then replied to him, ‘ John Finn, your word is as good as a will.’ The said Mrs. Susie S. Finn then, relying on his promise and believing that he would in good faith carry out her wishes, decided not to have a will prepared.” This conversation is said to have occurred on June 18, 1894, and Mrs. Finn died on the 25th of July following. The petition further states that for some time after her death, her husr band seemed disposed to carry out and perform in good faith his
The case of Bedilian v. Seaton, 3 Wall. Jr. 279, 3 Fed. Cas. 38, differentiates between a transaction whereby the absolute title is acquired by will by means of a fraudulent promise, and one whereby the title is acquired by inheritance by means of a fraud practiced by the heir at law to prevent his ancestor from making a will otherwise disposing of his estate. The facts of this case are very similar to those of the case at bar, and the distinction sought to be pointed out is that in case of the procurer of the title by will by fraudulent promise of the devisee a trust arises which adheres to the land thus fraudulently obtained, whereas when the title is cast upon the heir by the law such a trust can not be implied; for in the latter case the promise would be a mere parol contract, and not a trust descending with the land. In principle, I am unable to perceive any rational distinction between the two classes of cases. In each the title is procured by means of fraud, and it is the fraud which creates the trust, and not the particular manner by which the result is accomplished. Pervading all the cases cited the dominant note is fraud, and not the mere bréach of a parol promise. The Illinois Supreme Court clearly brings out this distinction in Lantry v. Lantry, 51 Ill. 458, wherein it is ruled: “If A voluntarily conveys lands 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 C, 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 interfered 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 C, chancery will lend its aid to enforce the trust, upon the ground that B obtained the title by fraud and imposition upon A.” To the same effect, see Fischbeck v. Gross, 112 Ill. 208. Before one can become a trustee ex maleficio, he must obtain another’s property from him by fraud.
Judgment affirmed.