3 Md. Ch. 158 | New York Court of Chancery | 1851
The proposition of law upon which the complainant’s case rests, and upon which he has placed it by his bill, appears to be well fortified by authority. ' That proposition is, that if an heir or personal representative or devisee whose interests would be prejudiced by the insertion, of a provision in a will in favor of some third person, induces the testator to omit such provision by assurances that his wishes shall be executed, as though the provision were made, such assurance will raise a trust which, though not available at law, will be enforced in equity on the ground of fraud. Barrow vs. Greenough, 3 Ves., 152; Mestaer vs. Gillespie, 11 Ves., 621; Strickland vs. Aldridge, 9 Ves., 516 ; 1 Story’s Eq., sec. 256; 2 ib., sec. 781. Cases establishing the principle could be multiplied to
And it may also be assumed to be equally well founded, that if the trust is devised by the heir or devisee, it may be proved by parol, though the statute of frauds is relied upon as a defence. 1 Jarman on Wills, 357; Oldham vs. Litchfield, 2 Vernon, 506; Chamberlain vs. Agar, 2 Ves. Beams., 262 ; Colegate D. Owing’s Case, 1 Bland, 402. The title of the party in whose favor a provision has been omitted by reason of such assurances, to the aid of the Court, does not rest upon the mere ground of trust, because viewed in that light the statute of frauds would he an insuperable bar. His right to relief is founded upon the fraud, for as was said by Lord Eldon in Strichland vs. Aldridge, “ the statute was never permitted to be a cover for fraud upon the private rights of individuals.”
But. though parol evidence may be admitted to prove the agreement of the heir or devisee in opposition to the answer, and the Court will decree relief if the proof be sufficiently strong, the cases show its undisguised reluctance to interfere if there be any doubt or ambiguity in the evidence. The Master of the Rolls in the case of Barrow vs. Greenough, 3 Ves., 152, spoke emphatically of the danger of decreeing in such cases upon parol evidence only, and congratulated himself that he had in that case the required proof in the defendant’s handwriting, remarking, that if he was compelled to decide the cause exclusively upon the parol proof, he could not grant relief. And upon examining the many cases which have been decided upon this head of equity, it will be found that in none has the party setting up such a provision been successful when a reasonable doubt in regard to the fact could be entertained.
In this case, in my opinion, the plaintiff has entirely failed in producing that clear and satisfactory evidence which is required, of which requisition there are circumstances peculiar to it forbidding the least relaxation. The will was executed in the year 1834, and the testator died in 1836, and Beale
The answers, all of them, deny the statements of the bill, and some of the respondents speak in opposition to their interests, and, on that account, in so far as they speak of matters within their own knowledge, are entitled to more consideration than is usually attached to answers. Many of the averments of the bill refer to family transactions, which it is natural to suppose would have formed subjects of conversation in the family circle, and yet the defendants, all of them, deny or express their total ignorance or unbelief of them.
Upon attentively reading and considering the testimony adduced by the plaintiff, and putting out of view altogether the proof on the other side, I can see no ground upon which I could decree the relief prayed by this bill in opposition to these answers. The principle, it will be remembered, is, that the heir or devisee must have induced the testator or intestate to omit the particular provision by assurances that his wishes should be as fully executed as if the omitted provision was made, and even though it be conceded that such an engagement may be entered into not only by words but by silent assent, as in a case somewhat analogous was held by Lord Loughborough, in 4 Ves., 10, and as was considered by Lord
The declarations, then, of Beale Gaither, as deposed to by the several witnesses, even including those that appear to have been made since his deed of 1840 (which are, however, clearly inadmissible), are in my judgment wholly insufficient to establish the plaintiff’s title to relief. They are not only vague and indeterminate, but they do not show, what must be shown before the complainant can have a decree, that the provision in the will which he alleges the testator was about to make in his favor, was prevented by the assurance of the elder Gaither, either expressly made or tacitly affirmed, that he would execute his intention in that respect, whether inserted in the will or not.
But in addition to the proof of the declarations of Beale Gaither, the elder, the complainant relies upon the evidence of Joseph Cole, who speaks of declarations made by Daniel Lamborne, the draftsman, and one of the subscribing witnesses to the will, he being now dead. This proof is excepted to by
But the declarations of the subscribing witness in this case, are of a totally different character. The witness, Cole, says, “ That after the testator’s death, he had a conversation with Lamborne, (the subscribing witness), who drew the will. Lam-borne appeared to be surprised that Gaither had conveyed the land to his daughter. He said that the land was left in trust, in said Gaither’s hands, for the use of his boys.” “ He thinks this conversation with Lamborne took place after Gaither’s death.” This witness can only be understood to speak of the contents and operation of the will. He does not say that Gaither assured the testator if he would devise the land to him, he would hold it in trust for his sons; and that after this assurance, the testator executed the will in the form in which he drew it; but that the land ivas left in trust in Gaither’s hands, for the use of his boys. He is not speaking of any deception practiced by Gaither upon the testator, but of the operation of the will, which of course must speak for itself, parol evidence being inadmissible to show that the draftsman of the will was mistaken, and that the testator designed something not fully expressed. Negro Cæsar vs. Chew, 7 G. & J., 127.
If, however, these declarations of Lamborne, made to the witness, Cole, could be understood as the complainant’s counsel understood them, that is, as tending to show a fraud practiced by Gaither in obtaining the will, upon what principle can they he received as evidence ? They are declarations without oath, made by a subscribing witness, to bo sure, but with reference to a fact having nothing whatever to do with his relation to the will, as an attesting witness. It could scarcely be contended, it is presumed, that if Lamborne had not been a subscribing witness, that his declarations upon this subject, made thirteen years after the death of the testator, or, indeed, if made at any time, could be admitted in evidence, and no good
Por these reasons, and without going into an examination of all the proof, or dwelling on circumstances, from which strong presumptions arise against the complainant’s title to relief, I am of opinion his bill cannot be supported, and shall sign a decree accordingly.
[No appeal was taken in this case.]