| Ill. | Jan 15, 1871
delivered the opinion of the Court:
The first point which claims the consideration of the court is, whether the deed from Buckner and wife to Henry W. Kings-bury, was ever so far legally executed as to become operative.
It was signed, sealed and acknowledged at Louisville, Kentucky, May 15, 1861, in the absence, and without the knowledge or assent of Kingsbury; then sent to Chicago, by Buckner to Mitchell, a stranger to the transaction, not authorized by the grantee to receive it, but with the simple direction from Buckner to have it recorded. It was placed on file on the 17th of May, and there remained until after the death of Kingsbury, occurring in September, 1862. There is no evidence that Kings-bury ever had it in his possession, or even saw it, but it is quite conclusive the other way.
“It is necessary to the validity of a deed that there be a grantee willing to accept it. It is a contract, a parting with property by the-grantor, and an acceptance thereof by the grantee.” Jackson v. Bodle, 20 Johns. R. 184.
In Jackson v. Dunlap, 1 Johns. Cases, 114, the court said: “ It is also essential to the legal operation of a deed that the grantee assents to receive it. It can not be imposed on him and there can be no delivery without acceptance.”
This rule is expressly recognized in Herbert v. Herbert, Breese, 278, where the court say: “ It is also held to be essential to the legal operation of the deed that the grantee'assents to receive it, and there can be no delivery without acceptance.” In this case the authorities are quoted as establishing this general doctrine: “It may be delivered to the party himself, to whom it is made, or to any other person by sufficient authority from him.” So far, it is entirely consistent with the principle of the rule above enunciated; but it proceeds: “ Or it may be delivered to a stranger, for and in behalf, and to the use of him to whom it is made without authority; but if it be delivered to a stranger without any such declaration, unless it be delivered as an escroto, it seems that it is not a sufficient delivery,” citing Jackson v. Phipps, 12 Johns. 419; 1 Shep. Touch. 57, 58; 2 Black. Com. 307; Viners’ Ab. 27, Sec. 52.
Taken literally, the latter branch of the rule seems to be inconsistent with the principle of that above enunciated. Because so taken, it imports that when a deed is made to one without authority, and is delivered to a stranger for the use of him for whom it is so made, with a declaration by the grantor to that effect, then there is a delivery which makes the deed operative, whether the grantee assent or accept it or not. If this be so, it therefore follows, that although a deed be a contract, as was said by Spencer, Chief Justice, in Jackson v. Bodle, supra, that is, a parting’ with property by the grantor and an acceptance thereof by the grantee, yet such contract may be completed by the acts and words of the grantor alone, without the assent of the grantee. Suppose it be one from which the grantee derives no benefit, but it subjects him to a duty, the performance of a trust, can he be obligated to the performance of such trust by the mere act of delivery and declaration of purpose by the grantor to an unauthorized stranger? If it be said that such act and words may bind the grantor, though perhaps not the grantee, then we’ have an instance of a contract where only one of the parties to it is bound, without any condition to that effect contained in it—where the grantor is estopped by deed and the grantee not estopped.
It must be that the rule under consideration can not be taken literally; but that the principle underlying it is, after all, assent, presumptive or actual, on the part of the grantee; that he must take the deed, and thus ratify the previous acts or then existing circumstances, or the deed of such a nature that the assent will be presumed, in the absence of proof to the contrary. Suppose the stranger to whom the delivery is made, offer the deed to the grantee, and this is his first knowledge of it, has he no option? May he not refuse to accept it? Would tender to the grantee and refusal, be equivalent to acceptance ? But suppose the stranger should not offer it, and the grantee, without knowledge of, or assent to it, should die, would the property-embraced go to his heirs, charged, perhaps, with a trust? There seem to be authorities which go this extent. Taw v. Bury, 2 Dyer, 167 b, and Alford and Lea’s case, 2 Leon. 110, are of the class. Lord Coke, in Butler v. Baker, 3 Coke, 26 b, makes an explanation of the doctrine thus : “ If A make an obligation to B, and deliver it to C to the use of B, this is the deed of A presently. But if C offer it to B, then B may refuse in pais and thereby the obligation will lose its force.” Taw’s case.
Kent, in speaking of Taw v. Bury, and Alford and Lea’s case, says: “It appears difficult to sustain the law of these cases, unless on the ground of the subsequent possession of the deed by the grantee and its relation back. Lord Coke in Butler and Baker’s case, (3 Coke, 26 b) explains this point by admitting that B may refuse the deed in pais when offered, and then the obligation will lose its force.” 4 Kent’s Com. 455, note b.
This examination of the grounds upon which a legal delivery rests, is made for the purpose of ascertaining when, if ever, and under what circumstances, the deed in question became operative. That a deed takes effect only from the time of delivery, with a few exceptions, where the necessities of the case require the application of the doctrine of relation, there can be no doubt.
Was the act of sending it to Mitchell a delivery? He ivas a stranger and had no authority from the grantee, to receive it. There was no declaration that it was delivered to him for the grantee’s use; nor was it delivered as an escroto. But it was sent merely to have it filed for record. He was, therefore, a mere medium through which it was to pass to the hands of the recorder. The act was no more of a delivery, in the legal sense, than placing it in the possession of the carrier, to be conveyed from Louisville to Chicago,'—than if Buckner had taken it himself to the recorder to be recorded. In Herbert v. Herbert, supra, it was expressly held, under the circumstances of that case, that “the act of recording a deed can not amount to a delivery, when there does not appear an assent or knowledge by the grantee, of the act.”
There not only does not appear any assent, or knowledge on the part of Henry W. Kingsbury, of the act of recording the deed, but the want of both as clearly appears as any fact in the case. On the 17th of May, therefore, when the deed was recorded, it was not so far legally executed as to become operative. The delivery of a deed is usually shown by proving the fact of the grantee having it in his possession, or by other circumstances tending to the same conclusion. Jackson v. Perkins, 2 Wend. 308" date_filed="1829-05-15" court="N.Y. Sup. Ct." case_name="Jackson v. Perkins">2 Wend. 308. In Chapel v. Bull, 17 Mass. R. 212, the court says: “A deed delivered at the register’s office, in the absence of the grantee, has been held with us to be a good delivery to the grantee, if he afterwards assent and take the deed.” Harrison v. Trustees, &c., 12 Mass. 456" date_filed="1815-10-15" court="Mass." case_name="Harrison v. Trustees of Phillips Academy">12 Mass. R. 456.
“The delivery of a deed, duly executed and acknowledged, to the register, aided by a subsequent possession of the deed by the grantee, might be evidence of a delivery to him.” 2 Hil. on Real Prop. 284, citing Beers v. Broome, 4 Conn. R. 247, Dawson v. Dawson, Rice R. 243.
But here, the delivery of it at the recorder’s office, is not aided by a subsequent possession of it by the grantee. There is not only no evidence that he ever had possession of it, or of circumstances tending to that conclusion, but it appears affirmatively that he never had. The only evidence from which assent to, and acceptance of the deed by the grantee, can be inferred, consists of the conversation between him and Buckner in July 1861, in Washington, and the grantee’s letter to his mother, of the 23rd October, 1861, referring to a previous conversation between them in August or September, same year.
Buckner relates the conversation thus: They (himself and grantee) were walking on the street near the president’s house, talking'of the troubles in the country, when Buckner remarked ; “By the way, the property of your sister has been deeded to you, and I want you to look after her interests and see that she has her property.” To which Kingsbury replied: “That was all right,” or “very well,” or words to that effect. This was the only conversation they ever had on the subject, and the first time Kingsbury ever heard of the deed.
Subsequently, and in August or September, 1861, the grantee visited his mother in Old Lynn, Connecticut, and she testifies that she asked him in regard to his sister’s property, whether it had been turned over to him, and told him that Simon (Buckner,) had told her so. He (grantee,) replied: “That is so, but don’t look concerned; it is only turned over to me for safe keeping; it will be restored to her.”
This shows that Henry W. Kingsbury understood Buckner as meaning, in the remark made in July, that his wife’s property had been deeded to the former in trust for her use. Then, without any communication, either by 'letter or otherwise, between him and his mother, intervening the conversation just referred to, and the date of the letter of the 23rd October, 1861, the grantee in that letter, written and signed by him, says to his mother, “I spent all the morning with Burnside yesterday. He states, as I told you, that Simon had made over the Chicago property that was held in his name to me; a new power of attorney is therefore necessary for you and myself. We made one out. I signed it; Burnside will send it to you. I send you a copy for your own keeping and keep one for myself.”
The power of attorney so referred to, is as much a part of the letter, for all legal purposes, as if it had been copied at length into it, and tends to explain what property was intended by the statement that Simon had made over to him the Chicago property that was held in his name. The power of attorney is to Ambrose E. Burnside, appointing him attorney “to transact and conduct the business of the Kingsbury estate at Chicago,” &c. The deed of the 15th May, 1861, was the only conveyance to Henry W. Kingsbury, to which Simon B. Buckner was a party, and was the only one to himffrom any source, and from the extrinsic facts and circumstances in evidence— especially the fact that there had been, at the time of writing the letter, no occasion upon which he had told his mother any thing about the property having been made or turned over to him, except that above referred to, upon his recent visit to his mother at Old Lynn,—we must hold that the letter points unerringly to that conversation, the effect of which, in another aspect, will be considered hereafter. We are now attempting a solution of the question of the delivery of the deed. The evidence bearing most directly upon that point, is the brief but direct conversation between the grantee and Buckner in July, at Washington The other subsequent acts and declarations of Kingsbury are viewed, in this connection, simply as showing his understanding of the position he had assumed in regard to his sister’s property.
There can be no doubt, that up to the time of Buckner and the grantee meeting in July, the deed had not become operative. Although the grantors had parted with the personal possession of it, by leaving it with the recorder, still they coidd, at any time, have reclaimed and canceled it, with no other effect than that, perhaps, of casting a cloud upon their title, by its being recorded. The question to which we are directly brought is, therefore, whether, Avhile the deed was so in the hands oí the recorder, it was competent for the parties to effectuate a delivery and make the deed operative, by mere Avords alone, Avithout any manual or personal possession of the deed by the grantee, or a previously authorized agent? By the old rule, delivery Avas said to be “either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing, or it may be both; but by one of them it must be made, for otherwise, though it be never so well sealed and written, yet is the deed of no force.” Herbert v. Herbert, supra; Bryan v. Walsh, 2 Gilm. 557; Bennett et al. v. Waller et al. 23 Ills. 97. If a grantor, with or Avithout any previous arrangement Avitlx the grantee, sign, seal and acknoAvledge a deed, place it in the hands of the register to be recorded, notify the grantee of the act, and he assent to receive it, by words only, this Avould be a good delivery, though the grantee die before taking it into his actual possession; because the assent is the principal element, and taking the deed into possession is not indispensable, but only evidence of assent and acceptance.
We think, therefore, that Avhen Buckner notified Kings-bury, in July, of the making of the deed, the latter by his reply assented to receive it, and that this view is confirmed by his subsequent acts and declarations. The deed, then, for the first time became operative. But by the very words which made it operative was created a trust by .contract, which, if manifested and proved by some writing signed by the grantee, as required by the statute of frauds, is valid. This conclusion disposes of the question of resulting trust in this case so strenuously insisted upon in aguruenh When there is an express trust, there can be no foundation for an implied or resulting trust. Whether the declaration of such trust was manifested and proved by some writing signed by the grantee, within the meaning of that statute, is the question which now demands our consideration. This statute was passed in 1827. It was, in this respect, borrowed from and is but a copy of the English statute of 29 Car. 2, which had been in force in the mother country since 1677, and received a construction,'by the courts of that country, long anterior to its adoption here; from which We must presume that it was adopted with the construction so given it, or else the language would have been changed.
The fourth section of the English statute, as to certain contracts, required the agreement itself to be in writing, signed, (Wain v. Warlters, 5 East, 10,) whereas the seventh section, respecting trusts, is worded very differently, and requires only that all declarations or creations of trusts should be manifested and proved by some writing signed by the party. Upon the strength of this peculiarity in the wording of the clause, it was held that letters and other written documents, though long posterior in date to the transaction itself, would have an operation equivalent to that of a formal and coeval declaration of ■ trust. In Forster v. Hale, decided by the Master of the Rolls in 1798 (3 Ves. Jun. 696), and by Lord Chancellor Loughborough in 1800 (5 Ves. 308), the chancellor entirely agreed with the Master of the Rolls in adopting the letter as a clear declaration of trust, by which he said he meant clear evidence in writing, that there was such a trust. It is not necessary, continued his lordship, that it should be a declaration, but a writing, signed by the party, may be evidence of a trust admitted in that writing. Nor was it necessary to produce an instrument expressly framed for the purpose of acknowledging the trust, it is fully sufficient, if the recognition or admission, of it is incidentally made in the course of a correspondence. But when letters are to manifest a trust, there must be a clear demonstration that they relate to the subject; and it appears from Forster v. Hale, as well as from the cases of Tawney v. Crowther, 3 Bro. Ch. R. 161, 318, and O’Hara v. O’Neil, 7 Bro. P. C. 39, that if the letters afford evidence of the existence of a trust, the terms may be supplied aliunde.- Roberts on Frauds, 101, 102.
“The principal point to be noticed is, that trusts are not necessarily to be declared in writing; but only to be manifested and proved by writing; for, if there be written evidence of the existence of such a trust, the danger of parol declarations, against which the statute was directed, is effectually removed.” Lewin on Trusts, 63, citing Forster v. Hale, supra.
“ When there is any written evidence showing that the person apparently entitled is not really so, parol evidence may be admitted to show the trust under which he actually holds the estate.” Browne on Frauds, p. 110, sec. 111, citing Cripps v. Jee, 4 Bro. Ch. R. 472; Hutchins v. Lee, 1 Atk. 447. To the same effect, 2 Sug. on Vend. 7th Am. Ed. 911; Hill on Trustees, 62.
A great number of cases were cited at bar, varying in facts and circumstances, though tending, perhaps, to establish the same rules of construction, or define the kind and degree of evidence which will satisfy the requirements of the statute. To cite and review them all would be a needless task, as the general conclusions arrived at are well stated in the elementary works referred to, and others of equal authority. Every case, after all, must depend upon its own circumstances, and we must decide this case, not upon some particular feature of resemblance to this or that reported case, but upon the strength of its own undisputed facts, the circumstances by which the transactions were surrounded, and the application of those general principles by which courts of equity are governed in the exercise of a jurisdiction which reaches to the essence of things, regardless of forms, which probes the conscience and compels it to respond to the duties of every trust1 legally established, as from its own promptings it would be inclined to do, if left undisturbed by those passions to which human nature, unhappily, is but too prone.
We have seen that the trust is not necessarily to be declared in writing, but only to be manifested and proved by writing, and if there be written evidence of the existence of the trust, the danger of parol declarations, against which the statute was directed, is effectually removed. Lewin on Trusts, ubi supra.
Is there in this case written evidence of the existence of a trust ? There are but two items of that tendency : the letter and the will.
The circumstance that the letter was written by the grantee to his mother, and not to the person claiming to be cestui que trust, is not material. The letter is somewhat ambiguous in language, but it is clear that it relates to the subject. The grantee says: “ I spent all the morning with Burnside yesterday. He states, as I told you, that Simon had made over the Chicago property that was held in his name, to me.” The words “ had made over ” might mean as a donation, as a mortgage, or as passing a nominal title for the use of the grantor-.
It appears, as an extrinsic fact, that at the date of the deed, Buckner held the nominal legal title for the use of the heirs, to some seventy-five feet fronting ' upon the Chicago river, which had been thus conveyed to him by his father-in-law; and it was claimed in argument that the letter simply referred to that parcel. It is conceded that the language of the letter standing alone would limit the reference to that parcel. The person referred to as “ Simon, ” undoubtedly means Simon B. Buckner. The words, “ had made over,” had reference to some conveyance. The writer must, therefore, have intended, by these words, the1 making of a deed, covering Chicago real estate, to which Buckner was a party as grantor, and himself as grantee. As there never was any such deed but that made by Buckner and wife to him, of the date of May 15, 1861, we must presume that that deed was the one intended by the words “ had made over.” That deed did in fact convey the parcel to which Buckner held the nominal title, but also all of Mrs. Buckner’s interest in the property therein described, which was all of her father’s estate in Chicago. The evident purpose of this peculiar allusion to the matter in the letter, with the reference to something which the writer had previously told her, was to admit the trust to her, but in such terms as that others might not understand it. At that time Buckner was in the military service of the so-called confederate States, and his wife within their military lines.
But there is another feature to the letter that must not be overlooked. After mentioning the fact that Burnside had stated to him, as he had told his mother, that Simon had made over the Chicago property, &c., he says: “A new power of attorney is therefore necessary for you and myself. We made one out. Burnside will send it to you. I send you a copy for your own keeping, and keep one myself.”. This power of attorney was so referred to in the letter, as to incorporate it as a part of the letter. Upon examination, it appears to relate to the entire Kingsbury estate in Chicago. By it Burnside is appointed attorney to transact all of the business of the estate, but restrained from disposing of any part of it, except to negotiate loans, under certain restrictions, and from making leases to extend beyond the term of three years. How, if we are to assume that the letter had no reference to any of the estate, but the parcel of land held in Buckner’s name, then, from the fact that the power of attorney gave Burnside control of the entire property, we must impute to him, an old and confidential friend of the family, and a man of high position and character, and to Henry W. Kingsbury, the only brother of Mrs. Buckner, upon the most affectionate and confidential terms with her and her husband, the wrongful and unnatural purpose of usurping control over Mrs. Buckner’s share in her father’s estate. This we will not do, because it is a more reasonable construction of these acts, and one far more just towards the parties, to hold that reference was had to the deed of May 15. That deed purports to be a bargain and sale, but upon the nominal consideration of one dollar. Upon the question of establishing a trust against the title of a volunteer, which is not favored in equity, the statement of a mere nominal pecuniary consideration will not be allowed to affect the construction or operation of the deed. Hill on Trustees, sec. 107, top paging 148; Young v. Peasly, 2 Atk. 256.
It appears from the evidence, and is uncontradicted, that the grantee neither paid nor became responsible to pay, by any promise, express or implied, any valuable consideration whatever for the property conveyed. Upon the question under consideration, the fact of the deed being made ex parte, as appears was the case here, without communication with the donee, is a circumstance to which much attention will be paid. Hill on T. 108; Cecil v. Butcher, 2 Jac. & Walk. 573.
These facts and circumstances form legitimate ingredients of evidence, in reference to which, and the relative situation of the parties, the letter should be construed. If the grantee had purchased the property and felt the independence of a purchaser, would he not have placed himself in that character? Would he have used the unusual expression for such a relation, as that the grantor “ had made over to him ” the property ? On the other hand, did he regard the conveyance as a donation to him ? Is it reasonable to suppose, under all the relations existing, that if he had received, or supposed he had, a gift from his sister and her husband, of real estate of the known value of half a million dollars, he would immediately, upon being satisfied of the fact, thus address his mother concerning so munificent a gift, without the slightest manifestation of either surprise or gratitude? Such a thing is against all our knowledge of human nature and experience in the affairs of mankind. Why should Mrs. Buckner desire or intend to give away this vast fortune to jier brother, who had sufficient already, and to whom she was under no particular obligations, and retain for herself and her own children only the pittance arising from the Waterbury property, of the value of less than four thousand dollars? No explanation has been attempted, and none, we apprehend, can be given. The circumstances all conspire to show, with irresistible force, that it was the intention of the parties at the time that Henry W. Kingsbury should take as trustee for one of the grantors, and not for his own benefit. And the language of the letter is a fair admission to that effect. It imports that the writer was not the real owner of the property. Then, as strengthening this position, we refer to the only other item of written evidence : the will, and so far as pertains to the present inquiry, it is immaterial whether that instrument Avas valid and operative as a Avill or not.
On the 25th of March, 1862, Avhile Henry W. Kings-bury Avas at Fortress Monroe, in the State of Virginia, temporarily, in a military capacity, he Avrote and signed Avith his oavii hand a will, by the first clause Avhereof, he declared that, “To my mother, Jane C. Kingsbury, I lea\7e tAventy thousand dollars, or so much of my Chicago property as, upon a fair appraisal, may be valued at that amount.” By the second clause: “ To my sister, Mary J. Buckner, I leave so much of the Chicago property held in my name as shall amount to one-third of the property in the city of Chicago left by my father, Julius J. B. Kingsbury,deceased.” By the third clause : “To my cousin, John J. D. Kingsbury, I leave my property in Waterbury, Connecticut,” &c. By the last clause he declared that: “ The remainder of my property, of every description, I leave to my devoted wife Eva,” &c.
There is little doubt but the making the portion devised to his sister one-third, instead of one-half, subject to his mother’s right of doAver, Avas the result of a misapprehension, arising from his youth and inexperience, and the manner in Avhich the income had been previously divided. But it will be perceived that in the clause relating to the deA'iseto his sister he uses the peculiar expression: “ So much of the Chicago property held in my name” Whereas, in the devise to his mother it is: “ So much of my Chicago property,” &c. To his cousin it is: “My property in Waterbury,” &c. To his wife: “ The remainder of my property,” &a. It is an undisputed fact that the only Chicago property held in his name was that conveyed by the deed of May 15th. Why this peculiarity of language, if he had not thereby reference to his sister’s share thus conveyed ? And why say “ the Chicago property held in my name, ” in that connection, unless in deference to the truth ? The expression excludes every idea but that of a nominal title, and is equivalent to saying “ held by me in trust.” The deed of May 15 purports, as we have before said, to be a bargain and sale. Is it not clear, then, from the letter and will, when viewed in the light of surrounding circumstances, that the agreement really made between the parties was not that stated by the deed? We think it is, and that, therefore, there is written evidence of the existence of a trust, and the danger of parol declarations, against which the statute was directed, is effectually removed. “If there is some written evidence inconsistent with the fact that the supposed purchaser was the actual purchaser, further evidence by parol is admissible to prove the truth of the transaction.” 2 Sug. on Vend. (7 Am. Ed.) 911.
“When there is any written evidence that the person apparently entitled is not really so, that will open the door to the admission of parol evidence to prove the' trust, notwithstanding the statute.” Hill on Trustees, 62.
The letter of the grantee makes reference to a particular parol declaration. As there appears to have been but one occasion upon which he had before then made any declaration to his mother on the subject, that will be regarded as the one intended. Ghertrude v. Check, 1 Adol. & Ellis, 57. The declaration was made but a short time after'the conversation between him and Buckner, as to the fact and purposes of the deed. The latter had visited his mother-in-law in Connecticut, and had probably told her about it. Then when Henry visited her in August or September, it was natural that she should make inquiries concerning it. She did. She inquired of him whether his sister’s property had been turned over to him, telling him that Simon had told her so. He replied “That is so, but don’t look concerned; it is only turned over to me for safe keeping ; it will be restored to her.”
If there were no written evidence of the existence of a trust, and the letter were clear and unambiguous in its terms, we are inclined to think that, under the doctrine of reference to words, parol evidence would not be competent for the purpose of manifesting and proving a trust, as required by the Statute of Frauds.
In Virginia, it has been decided that a letter containing a promise to make a deed of a tract of land “ according to contract,” is a sufficient memorandum under the Statute of Frauds, notwithstanding the terms of the contract are not mentioned; provided the party claiming the conveyance can prove by the testimony of one witness the price which was agreed to be paid for the land. Johnson v. Ronalds, Adm. 4 Munf. 77" date_filed="1813-10-26" court="Va." case_name="Rootes v. Webb">4 Munf. 77.
The doctrine of this case seems to be contrary to the general rule of the English courts, they having required, unless under certain exceptional circumstances, that the reference be to some document in writing, though it has not been deemed indispensable that such writing be signed. Clinan v. Cooke, 1 Sch. & Lef. 32; Hodges v. Hersfall, 1 Russ. & Myl. 116; Saunderson v. Jackson, 2 Bos. & Pull. 238, and the same rule as to a contract for the sale of land, was followed by Chancellor Kent in Parkhurst v. Van Cortlandt, 1 Johns. Ch. R. 274.
Still it has been held that when a reference has been made to words by a will, the words may be proved by parol, not for the purpose of varying the terms of the will, or adding to its contents, but for the purpose of describing or defining what was meant. Sanford v. Raikes, 1 Merivale, 646.
“ And in some cases of trusts imperfectly expressed, parol evidence has been held admissible in explanation of the intent. Thus, when a testator devised his estate to his wife, 'having a perfect confidence that she will act up to those views which J have communicated to her in the ultimate disposal of my property after her decease/ the wife afterwards died intestate, and a bill was filed by his two natural children for relief against his heir and next of kin, and her heir and administrator, alleging that the testator, at the time of making his will, desired his wife to give the whole of his estate, after her death, to the plaintiffs, and that she promised to do so, parol evidence -was admitted in proof of this allegation.” 3 Greenl. Ev. sec. 365, p. 370, referring to Podmore v. Gunning, 5 Simon R. 485, S. C.; 7 Sim. 644.
It is not necessary to this case, and we do not commit ourselves to the doctrine of Podmore v. Gunning, to the full extent to which the learned author upon Evidence has accepted it; because the admission of parol evidence, in that case, may be consistently placed upon another ground, viz : that if a person obtains property under a will, upon a parol assurance that he will dispose of it in a particular way, the court will regard his attempt to keep the property, or dispose of it otherwise, as a fraud, and not allow him to set up the statute of frauds where a compliance with the statute would be to give effect to the fraud which it was intended to prevent.
From the best investigation we have been able to give to the question, and the authorities which bear upon it, we have arrived at the conclusion, that inasmuch as the written evidence clearly establishes the existence of a trust, parol evidence of the words referred to in the letter is admissible for the purpose of describing or defining what was meant by the letter, and as showing the truth of the transaction.
To search for artificial rules by which to exclude such evidence, beyond the just demands of the statute of frauds, would be an attempted reversal of some of the most favorite maxims of courts of equity ; would be the exercise of astuteness in the ways of defeating the plain intention of the parties, and aiding in the consummation of a fraud ; for, when a trust is once established by legal evidence, equity regards every attempt by the trustee to appropriate the trust property to himself, to the exclusion of the rights of the cestui que trust, as a fraud, contemplated upon the latter.
The late Henry W. Kingsbury was, as this case shows, not only a trustee of the property, for his sister, but he was an honest trustee. By the last act of his life, in this respect, he designed to, and did, admit the existence of the trust, and endeavored to execute it. Immediately after his death, his widow, one of the defendants, in a letter to the mother of her deceased husband, recognized and admitted the trust, so far as she was concerned, in the most express terms, and seemed distressed at the suggestion of any obstacle to its immediate execution. Though her relations in life, and to the cestui que trust, became afterwards changed by another marriage, yet it is incredible that if she has been cognizant of the efforts which have been made to conceal the most important item of evidence of her former husband’s relation to this vast property, and to wrest it from its proper channel, she can view them otherwise than with feelings of sorrow and regret. Her conduct has been the subject of severe criticism by counsel, but we are inclined to believe that she, like the unconscious infant whose name appears as plaintiff in the original bill, is but the involuntary instrument in the hands of designing men, who stand in no such relation to the memory of the deceased trustee as does Eva Lawrence.
The trust being sufficiently manifested and proved by writings, signed by the party who was, by law, enabled to declare it, it must be executed.
This conclusion renders unnecessary any discussion of the question, made by appellants in the cross bill, as to the sufficiency of the acknowledgment of the deed by Mary J. Buckner, or of the question made by appellant in the original bill, as to the execution and probate of the will; because, if properly executed and admitted to probate, the will would be governed by the laws of this State, where the property is situated ; and the posthumous birth of the infant Henry W. Kingsbury, would, by those laws, operate as an abatement of all devises of property so situated. Gross’ Statutes, p. 800, sec. 16, Wills. Besides, the testator was incapable of divesting the property held in his name, for the use of Mary J. Buckner, by any devise he could make.
The decree of the court below, dismissing both bills without-prejudice, must therefore be reversed and the causes remanded, with directions to that court to dismiss the original bill absolutely, and to grant the relief prayed in the cross bill, by a decree establishing the equitable title in Mary J. Buckner, to her proper share of the real estate described in the deed of May 15th, 1861, declaring the trust, and requiring the proper conveyance of the legal title to her, divested of any life estate in her husband, (he having renounced the same,) and of all right of dower in Eva Lawrence; that an account be taken between said Mary J. Buckner and all other parties interested in the estate of Julius J. B. Kingsbury, deceased, according to the rules and practice of the court of chancery in such cases, and it be decreed accordingly.
Decree reversed.