34 S.C. 259 | S.C. | 1891
The opinion of the court was delivered by
These three eases, involving substantially the same facts and same legal principles, were heard and will be considered together. The plaintiffs claim that as far back as 1867, the intestate, John S. Bratton, sr., was constituted their trustee of certain personal property, to wit, money, by their mother, Mrs. Harriet Bratton, for which he never accounted, and and now, being dead, the object of'these actions is to obtain from
The Circuit Judge, without passing upon the fourth and fifth defences, overruled all the others and rendered judgment that plaintiffs had established the alleged trusts, and that the defendant, Harriet J. Bratton, as administratrix of the personal estate of said John S. Bratton, sr., should account for the several trust funds, as well as for her administration of the estate of her intestate, and that she, with the other heirs and distributees of said John S. Bratton, sr., should account for the assets to them descended. From this judgment the defendants appeal upon the several grounds set out in the record, which it is unnecessary to repeat here, as we think the whole case turns upon the question made by the first defence above stated.
For a proper understanding of this question, a brief outline of the facts will be necessary. It appears that old Mrs. Bratton, the mother of these plaintiffs, as well as of the legal trustee, John S. Bratton, sr., had, through her said son, who had for several years been acting as her agent in the management of her property, sold a large quantity of cotton, whereby she became possessed of quite a large sum of money, a very considerable portion of which she determined to divide amongst her eleven children and two grandchildren. This division was made at her house, in the parlor, some time in the year 1867 (when precisely is not stated, though it is probable that it was prior to the 17th of November of that year), three of the sons and a son-in-law being in the room where the money was divided. The share of each was $892, and each of the sons present received their respective shares, but the
Q. Just state what happened in your presence between your mother and your brother John on that occasion ? A. Brother John handed me the money, and said it was our trust money, and mother told me not to take it; that she was not satisfied to keep the money in the house, and she wished him to take it and invest it for our benefit. Q. For the benefit of those four girls ? A. Yes, sir. Q. Did John take the money ? (Defendants’ counsel object as to the case of this plaintiff under section 400 of the Code. The Court: Any conversation between Mrs. Harriet Bratton and John Bratton she can testify to.) Q. Did your mother tell him anything about paying the girls interest? A. Yes, sir. She said she didn’t want us to use the principal, but to use the interest. Q. And your brother, in your presence, did take those four shares ? A. Yes. sir.
This witness, on her cross-examination, having stated that her mother had insured her life, was asked whether the premiums on the life-policy were to be paid by her mother out of her own money, or out of this package set apart for her on the division above referred to, testified as follows: “She insured our lives, and, of course, she was to pay the money. Q. You can’t say whether or not it was to be taken out of this $892? A. No, sir; it was not to be taken out of that. Q. How do you know it was not to be taken out of that ? A. Because mother told brother John to invest that money for the benefit of our children, and she insured our lives.” Again, when this witness was examined in reply, she was asked by the Court as to what occurred in the bed-chamber of her mother, when her brother John brought the packages of money into that room, and, afGer stating that there were three packages, one for witness, one for Mrs. Harris, and one for Mrs. DeLoach, with their names endorsed on the slip of paper in which
It also appears that John S. Bratton, sr., became an exile from the State on account of the Kuklux prosecutions some time in the year 1871, and did not return to this State until some time in the year 1873, where he continued to reside up to the time of his death, 21st January, 1888. His mother died in 1874, and these actions were commenced 21st February, 1890. There was also some testimony' which is relied upon as tending to show a recognition of the trust alleged by John S. Bratton, sr., which will be more particularly stated in the progress of the discussion, and need not therefore be specifically set forth here.
In the light of these well settled principles, let us examine the question whether the evidence adduced was sufficient to show that any express trust had ever been created in favor of these plaintiffs. The only testimony which we have been able to discover in regard to the creation of the alleged trust, comes from a party interested, who is testifying as to a conversation which she heard about twenty-three years before she was examined, and we find that she gives three different versions of this conversation. In her first examination in chief, when asked to state what occurred when it is claimed that this trust was originally created, she said: “Brother handed me the money, and said it was our trust money, and mother told me not to take it, that she was not satisfied to keep the money in the house, and she wished him to take it and invest it for our benefit.” Now, it is perfectly certain that the witness is mistaken in saying that her brother said it was our trust money; for it cannot be pretended that up to that time any trust had been created or even thought of, certainly none had been mentioned. Now, if she had said simply that her brother when he came into the bed-chamber handed her the trust money, it might possibly he argued that she characterized it as trust money, because she so regarded it from what afterwards occurred ; but how she could have said that her brother, who, so far as the evidence discloses, had never received the slightest intimation up to that time that there was any intention to impress it with any trust, “said it was our trust money,” it is absolutely impossible to conceive. But in addition to this, the language of the mother italicized above, that she was not satisfied to keep the money in the house, shows anything else but an intention to constitute John S. Bratton, sr., a trustee of the money, and, on the contrary, rather tends to show that the old lady’s idea was to keep the money herself for the benefit of her daughters, but not deeming it safe to keep that amount in her house, requested her son, as her agent, to invest the money for the benefit of her daughters.
Then take her statement on the cross-examination as to what occurred, where she gives as a reason why her mother did not intend to pay the premiums on the life insurance out of this
It may be contended, however, that the testimony of Mrs. Williams, relied upon to establish the creation of the trust, is confirmed by certain alleged admissions of John S. Bratton, sr., as derived from his letter to his mother, written during his exile from “Dark Corner,” bearing no date, and set out in the “Case” as exhibit D of the testimony, as well as from certain alleged declarations made by his wife, as to what he had said to her. These statements attributed to the wife, which, however, she denies, were plainly incompetent as mere hearsay, even taking the testimony on the part of the plaintiff as true, and rejecting altogether the testimony of the wife. They certainly do not fix upon John S. Bratton, sr., any admission of the trust by any competent testimony. And as to the letter to his mother, so far from its affording any evidence that he admitted the trust, it rather tends to show what we are inclined to think was the true character of the
It seems that so far from there being anything whatever in this letter which in the remotest degree recognizes any liability to any of his sisters, or that he held any funds of theirs in his hands, its whole tenor shows that he was only referring to his business relations with his mother, of whom he had for a long time been the agent, and his only anxiety was to satisfy her that his dealings with her were correct,-and that he would be able to show that fact to her satisfaction. His only allusion to his sisters, two of the plaintiffs, is in reference to the payment of the
Now, in this case there is not only great lapse of time, but we fail to find any evidence of any admission or acknowledgment by the alleged trustee of the trust now claimed to be established by mere parol evidence of a single interested witness of a conversation which she heard about twenty-three years previously, which-she narrates in three different forms, leaving not only the nature and character of the alleged trust in obscurity, but, to say the least of it, leaving it doubtful whether any trust was in fact created. On the contrary, the evidence shows that the alleged trustee lived for about eleven years after his' return from exile, and yet during all that time no claim or demand was ever made upon him by either of these plaintiffs even for the interest of the alleged trust fund, although the evidence also shows that during that time at least two of the plaintiffs were in needy circumstances and one of them made repeated demands upon the alleged trustee by letter for pecuniary assistance, which letters contain no intimation whatever of the trust now sought to be set up after the death of old Mrs. Bratton, who, it is claimed, created the trust, and after the death of the alleged trustee, who died leav
It seems to us that, in view of these circumstances, it would be extremely unsafe to allow a parol trust to be established by parol evidence of “loose and indefinite expressions” which a witness claims to have heard in a conversation between parties, both of whom are now dead, about twenty-three years before such evidence was taken, especially when her statement as to such conversation contains a mistake palpable on its face, and varies in its terms on each occasion when she is asked to state what occurred. For without intending to impute the slightest intentional wrong to the witness, the frailty of human memory is such as to render it unsafe, after such a lapse of time, for a court to base a decree upon such evidence, where it is not only not corroborated by the other circumstances, but, in our judgment, is altogether inconsistent with them.
Having reached the conclusion that the plaintiffs have failed to establish the alleged trust, upon which these actions are founded, the other questions presented cannot arise and need not therefore be considered.
The judgment of this court is, that the judgment of the Circuit Court, in each of the cases above stated, be reversed, and that the complaints in said cases be dismissed.