52 So. 323 | Ala. | 1910
These bills were filed by appellants, the husband and the next of kin and heirs at law of Mary Jane (Jennie) ITolt, nee McEvoy, to have declared and enforced primarily resulting trusts in certain real property, on the theory that funds of Mrs. Holt were employed by Mrs. Ann McEvoy, her mother and the mother of the respondents (appellees), in the several purchases of the real property described in the bills, and to which Mrs. McEvoy took the title in her own name. There are also phases of the bills seeking the imposition of a charge on the McEvoy homestead to
The part of the transcript devoted to setting out the testimony, pro and con, covers upwards of 90 closely typewritten pages, and the very helpful discussion by the solicitors in the cause of the evidence bearing on the issue comprises upwards of 60 closely typewritten pages of large dimensions. The whole testimony has-been most carefully read and considered, and the discussions of the solicitors have received like attention. Prom this volume of record matter, dealing with circumstances and events, personal acts and conduct, covering 20 years or more, it is apparent that a full treatment in opinion of the evidence in the cause is impossible. The solicitors and ourselves must in view of the evident necessity be content with the chiefly general statements and conclusions to follow.
The theory of the bill invokes a familiar phase of equity jurisprudence, viz., the establishment and enforcement of an implied trust. ■ Such implied trusts reckon the legal title in another, and to avoid the conveyance, in cases of the character here presented, and to establish the trust resting, as it does, entirely in parol, it is well understood that the evidence must be “strong and unequivocal, and of such character as to disclose the exact rights and relations of the parties” (Jones on Ev. [2d Ed.] § 422) ; or, as said in Lehman v. Lewis, 62 Ala. 133, the proof “must be clear, full, and
In 1880 Owen McEvoy died, leaving a widow, Ann McEvoy, and the following children in the order of their ages: Jennie, Rosa, James, John, Lizzie, and Patrick. He possessed a lot in Mobile on which they then resided. The family ivas poor, at least after the father’s death. Jennie about that time entered on an apprenticeship with a dressmaker, Mrs. Loyd. She worked there, either as an apprentice or at her trade, until a few days before her marriage, to William T. Holt, in 1886. Soon thereafter — whether from a small beginning theretofore made by Jennie and Rosa during times not demanded in the service of Mrs. Loycl is in cur opinion not important — the business concern above referred to seems to have come into well-defined existence. Its place Avas in the McEvoy home. It grew with the years, and in two or three years after Mrs. Holt's marriage was of considerable size, and had a large clientele among the most prominent and aesthetic people of the city of Mobile. While the evidence shows Avitbout any real doubt that Mrs. McEvoy was after the death of her husband the dominant, managing head of the household (not- the business), it is just as Avell demonstrated in the evidence that the chief asset of the business concern named before Avas the unusual skill
While the evidence admits of adverse inferences, if not of positive denial, we think the conclusion is unescapable that Mrs. Holt during the entire life of the business exercised without question the right to take out of, or to retain, or both, funds coming into the business for personal use. What, if anything, Mr. Holt contributed to her and the children’s support or afforded her and their children for expenditure, is not clear from the evidence. He was steadily employed in other pursuits. Mrs. Holt traveled, especially after her health began to fail, and, from expressions made by her, it appears that one inspiration in her work was that she might travel for pleasure, if not for health. She was unquestionably the managing head of the business concern, buying materials, hiring and discharging the help, and exercising general supervision over the business. Such, we hope our summary has indicated, was the condition of affairs and course of business from 1886 to Mrs. Holt’s death in 1902.
Aside from the wholly uncertain amount of funds of the business going into the custody of Mrs. McEvoy, her money possession had source, at least for many years, in the turned-in wages of some of her children (outside of Jennie). But the conclusion on the issue in hand cannot be controlled or materially affected, even if it be conceded, to appellants’ advantage, that the sole money possessions of Mrs. McEvoy were derived from the business concern conducted in the home of Mrs. McEvoy and Mrs. Holt. The probative force of
Under the rule before stated, for the measure of certainty of proof in order to sustain the declaration and enforcement of an implied trust, it is. too evident for doubt as the learned chancellor concluded that in this instance the complainants entirely failed to maintain in the evidence their asserted theory of right and equity. That the brothers and sisters of Mrs. Holt, as appellants contend, will, through the will of Mrs. Mc-Evoy, share, to the exclusion, pro tanto, of Mrs. Holt’s children, in the result of years, even until her death, of the applied skill and the fine repute in her profession of their mother, Mrs. Holt — a result not in accord with natural duty or natural impulse — is without doubt a strong appeal to a universal human sentiment; but, though true and just the sentiment is, rules, established for the ascertainment and vindication of rights cannot be qualified in application thereby. Impulse, however nobly inspired, should not, cannot, influence the judicial determination of issues a.t law or in equity.
The decrees appealed from must be affirmed.
Affirmed.