205 Pa. 491 | Pa. | 1903
Opinion by
The trust which the appellants pray may be declared as existing for them rests entirely in parol. Their allegation is that it was created by William McCloskey, now deceased, who was the father of Charles B. McCloskey, one of the appellants, and of John McCloskey, who died since his father, and whose widow and children are the other appellants. The bill of complaint sets forth that, as John McCloskey and Charles B. McCloskey had become financially involved, their father, the said William McCloskey, was anxious that no part of his estate which might go to them after his death should be liable for their indebtedness, and consulted with his wife and children as to the best means to be adopted by him to prevent the shares of the sons from falling into the hands of an uncle, who was their creditor ; that, as a result of the father’s deliberation and consultation with his wife and children, he caused his will to be written; and that, by its terms, with the exception of two lega
The trust' as set forth has nothing to support it except the oral declaration of William McCloskey, after his will had been written, that he had created it for his sons and had charged his daughters with the execution of it. It not only rests in parol, but is an express one, and those who would have it enforced are confronted with the Act of April 22,1856, P. L. 532, the fourth section of which is “ That all declarations or creations of trusts or confidencies of any lands, tenements or hereditaments, and all grants and assignments thereof shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void; Provided, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by implication or construction of law, or be transferred or extinguished by act or operation of law, then and in every such case such trust of confidence shall be of the like force and ef
Though the trust is set forth as an express one, created by parol, the applicants seek to avoid the effect of the act of 1856, on the ground that a trust has resulted to them from the fraud of the appellees and is, therefore, within the exception of the act. But the only misconduct charged is that the appellees now refuse to recognize the trust, and that, notwithstanding their promise to be bound by it, they now declare they will not regard it. This is not enough to take the case out of the plain words of the statute. If no valid trust was created in the first instance by William McCloskey, because he did not declare it in writing, there are no trustees to be bound by their promises, nor any cestuis que trustent to bo protected. The statute of frauds would soon become a dead letter if the mere broken promise of a trustee under a trust created by parol, who had agreed to carry it out, should, without more, be held sufficient to create a trust by implication within the exception of the act. It is only when a trustee refuses to perform or recognize a trust that courts are asked to declare its existence as against him, and if a trust, which has no legal existence under the statute, can be brought into being as within the exception simply because a trustee breaks his promise to perform, no case will be without the exception. “ The statute of frauds would be worse than waste paper, if a breach of the promise created a trust in the promisor, which the contract itself was insufficient to raise: ” Kellum et al. v. Smith, 33 Pa. 158. The case is within the rule as laid down in Barnet v. Dougherty, 32 Pa. 371, Williard v. Williard, 56 Pa. 119, Kistler’s Appeal, 73 Pa. 393, Bennett v. Dollar Savings Bank, 87 Pa. 382, Barry v. Hill, 166 Pa. 344, and Martin v. Baird, 175 Pa. 540, that, where there is nothing more in the transaction than arises from the violation of a parol agreement on the part of the alleged trustee, equity will not decree a trust.
There is no averment in the bill that the testator was induced by the appellees to dispose of his estate as he did, or that any misrepresentation, artifice or fraud was practiced
In construing the act of 1856, shortly after its passage, in Barnet v. Dougherty, supra, it was said: “ The fourth section of that act enacts ‘that‘all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, and all grants or assignments thereof shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void.’ The plain meaning of this enactment is, that a trust in land can now be proved in no other way than by writing. The proviso, indeed, excepts from
As there was no valid trust expressly declared in writing, as required by the act of 1856, or arising’ by implication, the appellees were entitled to judgment on the demurrer.
Judgment affirmed.