188 N.W. 44 | N.D. | 1922
Statement.
John C. McWilliams died in March, 1919. The administrator of his estate' brings this action against his sister, one of the heirs, to quiet title in a house and lot in Grand Forks. The defense is that the deceased purchased the property, and took title thereto in his own name upon an express trust in favor of the defendant.
The substantial facts are as follows: The defendant was termed the favorite sister of the deceased. In the years past she had worked and kept house for him upon his farm. Later the sister married, and, for a time lived at McCanna, where her husband ran a barber - shop and pool room. While there, her husband deserted her and their two children, and left for places unknown. Thereupon deceased assisted and provided for his sister; he took and disposed of the property left by her husband; for a time she lived in a house owned by him. at McCanna.
In the fall of 1916 the deceased bought the property involved. He had desired to arrange so that his sister might live in Grand Forks, and that her children might have the school advantages there. Before he -purchased this property he stated that he wanted to purchase a home for his sister. When the deceased bought this property he wrote his sister as follows:
“Dear Sister Thress: Bought you the Edwards house. Think it will be large enough for you. Bought Brown some underclothes and a coat. Will see you Saturday. Your brother, J. C.”
Brown was the defendant’s minor son. Various witnesses testified concerning oral statements made by the deceased in regard to the purchase
The deceased paid the real estate taxes upon the property; also the personal property taxes of his sister. He also aided her in her support.
The trial court found that the deceased was the owner of the property, and that the defendant possessed only a one-sixth interest therein as heir of the deceased, all subject to the control of the county court for purposes of the administration. From the judgment so entered, the plaintiff has appealed.
It is the contention of the defendant that the record discloses a completed gift of the beneficial interest in the property and a valid declaration of a trust which vested the legal title in the deceased, as donor, in trust for his sister, as donee.
Decision.
The defendant must rely on the creation of an express trust in realty through the voluntary gift of the deceased. The record does not warrant a finding of any indebtedness owing by the deceased to his sister so as to afford a basis for a valuable consideration.
Did the deceased create an express trust in favor of his sister as cestui que trust? Upon the record this is largely a matter of intention .and interpretation. The letter written to his sister satisfies the require
The deceased did not intend to place the title so that it might become in any way subject to any claims of the sister’s husband. He sought to make an arrangement whereby the title could be transferred so as to be free from any claim of the husband. He sought advice for such purposes. He tried to locate his sister’s husband. He was unable to so do, and nothing in that regard was done. It may not be doubted that he possessed intentions to give his property to his sister. It is apparent that the actual transfer of the legal title in consummation of his intentions was not made, by reason of possible claims that might be asserted by the husband. Did he intend to pass the entire beneficial interest to his sister? We are unable to answer this question in the affirmative. The deceased retained dominion and supervision over the title, which he took in his own name. He paid the taxes, and provided for her a home, and intended to protect her in that home.- Although he intended to give this property to her, the gift was imperfect, and not completed. Accordingly equity must leave the parties as it finds them. Lane v. Ewing, 31 Mo. 75, 86, 77 Am. Dec. 632
It follows that the judgment of the trial court was proper. It is affirmed. ’ -