Collins, J.
The controlling facts in this case are that on March 15, 1888, one Clapp, who resided in Devil’s Lake, N. Dak., was the *502owner of the property herein involved, situated in Moorhead, Minn. The defendant, Douglas, and the intervener, Mrs. Bell, resided in the place last named. On that day Clapp executed a deed of conveyance of this property to Douglas, and mailed the same to him at Moor-head. This deed was absolute in form but was without consideration. Clapp’s purpose, as understood by Douglas, gathered from conversations between them, as we suppose, was that the latter should collect the rents and profits, and apply them in payment of existing incumbrances and taxes. When this was accomplished, Douglas was to reconvey to Clapp, or to deed to any other person the latter might designate. Clapp died testate at Devil’s Lake, January 11, 1890, and his estate in Dakota was duly administered upon and distributed by the executor named in the will. Said executor having declined to proceed in Minnesota, plaintiff was appointed administrator with the will annexed, and thereafter brought this action to have the property declared a part of Clapp’s estate, and thus rendered subject to the payment of claims against said estate, a large number having been proven and allowed in Probate Court. Thereupon Mrs. Bell was allowed to file a complaint in intervention, her claim being that Douglas held the property in trust for her use and benefit. Douglas, by his answer, admitted that he held it in trust, and averred a willingness to execute the trust, and convey the same as the court might direct. A referee, to whom the case was referred for trial and for an order for judgment, found facts on which he ordered judgment for plaintiff, as demanded in the complaint. A motion for a new trial having been made, the same was granted by the court, and this appeal by plaintiff is from the order granting such new trial.
Both the plaintiff, Conrad, and the intervener, Mrs. Bell, contend that the property was held in trust by defendant, Douglas, and this is admitted by the latter. So, the single question is, who is the beneficiary of the trust? And it is quite evident to us, from the testimony adduced, that very little doubt should exist as to this. Defendant, Douglas, held the property in trust for Clapp, and not for the intervener. Two letters from defendant to Clapp were received in evidence, in both of which was an acknowledgment of the trust, and for whose benefit the trust existed: One of the date March 30, 1S88, wherein Douglas admitted receiving the deed executed fifteen days before, and, among other things, said: “I will hold the title in trust *503for you, etc., subject to your order. I write this so, if anything happens to me, you will have something to show that the title is in iny name only as a trustee.” Another of date December 26, 1889, a few days before Clapp’s death, in which, speaking of the latter’s illness, Douglas wrote: “If you are not better, I wish you would make detailed arrangements as to what I shall do with the place. Had I not better deed it back to you, instead of holding it in trust longer?” We think these excerpts from the letters very clearly show the nature and extent of the estate held byDouglas, and what person was beneficially interested. That of March 30, 1888, established the trust beyond doubt.
The intervener, to support her claim, offered evidence, received by the referee subject to objection, tending to show that at the time of his decease, and for some ten years prior, Clapp owed her quite a sum of money, and that he had verbally stated to other persons that he had arranged matters so that the rent would pay off the incumbrances, and then the property would go to her. These verbal statements were made when speaking of the deed to Douglas. She also introduced in evidence a letter, of which the following is a copy:
“Devil’s Lake, September 26, 1889.
W. B. Douglas, Moorhead, Minn.
Friend Douglas: In case of my death from any cause, I want you to deed my barn property at Moorhead, that O. B. Hill now has the lease of, to Mrs. E. M. Bell, the wife of J. J. Bell, of Moorhead. Trusting you will do this, I am, truly yours,
George H. Clapp.”
This letter was sent by Clapp to the intervener about the time it was written, and delivered to Douglas a day or two after Clapp died. It is hardly necessary to say that evidence of verbal statements made by the latter to the witnesses was wholly insufficient to prove the existence of a trust in the intervener’s favor. Nor did the letter in which Douglas was directed to convey the property to her in case of Clapp’s death create a trust, or give to her a vested right or interest therein. From the language used, it conclusively appears that she was to have no interest or estate in the property during Clapp’s lifetime, and only in the event of his decease was Douglas to convey it to her. A trust cannot be created in that way. Whatever the form of *504the instrument, if the obvious intention be that it shall serve no purpose, and have no effect, until after the death of the author, it is, at most, testamentary. If properly executed, it may operate and be established as a will. It must operate as a will, or not at all. We think these views- dispose of the case, and as the facts found by' the referee, are conceded to be correct by all parties, they fully warranted his conclusions of law.
The order appealed from is reversed.
(Opinion published 61 N.W. 673" court="Minn." date_filed="1894-12-28" href="https://app.midpage.ai/document/conrad-v-douglas-7968668?utm_source=webapp" opinion_id="7968668">61 N. W. 673.1