Northrip ex rel. Northrip v. Burge, 255 Mo. 641

255 Mo. 641 | Mo. | 1914

OPINION.

I.

BOND, J.

Gift Mortis. (After stating the facts as above).— There are but two possible legal viewpoints from which to weigh the evidence in this case ; whether James Burge made a gift of the personalty sued for in his last" sickness and apprehending death; or, second, whether he executed a trust therein in favor of the plaintiff.

The law on the subject of donations -causa mortis has been given exhaustive research by Woodson. J., speaking for this division. [Foley v. Harrison, infra.] It is essential to such conditional gifts of personal property that they should be made in reasonable expectation of death and that the giver shall transfer the property by an actual or constructive delivery, subject to be defeated by revocation during his life, or by his recovery from his existing illness or by his survival of the donee. [Foley v. Harrison, 233 Mo. l .c. 518; Walter v. Ford, 74 Mo .l. c. 198; 20 Cyc. 1228-9-30-1, and cases cited; 3 Pomeroy’s Equity Jur. (3 Ed.), sec. 1146; 1 Story’s Equity Jur. (13 Ed.), sec. 607A; Seabright v. Seabright, 28 W. Va. 412.]

There is no evidence in this record showing a semblance of delivery, either actual or symbolical, to plaintiff or to any one for him, made by James Burge, in his last sickness or in his lifetime. We may, there-, fore, direct our attention wholly to the relevancy of the evidence and its probative force, as supporting the claim of plaintiff to an executed trust in his favor to the property in controversy.

II.

Express rust. The law on the subject of the creation of express trusts in personal property is clear and definitely settled. There is nothing in the Statute of Frauds which prevents the creation of an express trust in personal property, without any writings, by fit£erms ailc[ action on the part of the settlor of the trust, and such trust, when completed, is an executed one, and will be enforced in equity, although voluntary. Neither is it requisite to the validity of such a trust that a third person should be designated as trustee. For the settlor may constitute himself as trustee of a completed verbal trust of personal property, and if no trustee is named, equity will not allow such a trust to fail for want of a trustee. But in order to create a valid verbal or parol trust in personal property three things are indispensable; first, the words of the settlor must express a declaration and grant by him of an estate or interest containing all the essential elements of a trust; second, there must be a definite subject-matter of a trust; third, there must be a definite object or beneficiary of the trust. These necessary conditions to the existence of a completed verbal trust of personal property, exclude from that category, all voluntary executory agreements for the creation of such a trust, as well as all unexecuted or imperfect gifts of personal property. [Lane v. Ewing, 31 Mo. l. c. 86; Harris Banking Co. v. Miller, 190 Mo. l. c. 670; Goodman v. Crowley, 161 Mo. l. c. 663; In re Estate of Soulard, 141 Mo. l. c. 664; Knapp v. Publishers George Knapp & Co., 127 Mo. l. c. 77; Bank v. McKenna, 168 Mo. App. 254; Watson v. Payne, 143 Mo. App. l. c. 726; Godard v. Conrad, 125 Mo. App. l. c. 175; Mize v. Bates Co. Nat. Bank, 60 Mo. App. l. c. 363.]

The question in this case is not, whether the preponderance of the competent evidence shows that the alleged trust was executed, but is, whether that fact is established by evidence so clear, certain, complete and convincing, as to remove all reasonable doubt in our mind on the subject; for this is the rule when parol or verbal trusts are subjects of investigation. [Allen v. Withrow, 110 U. S. 119; Foley v. Harrison, 233 Mo. l. c. 584; Smith v. Smith, 201 Mo. l. c. 547; Reed v. Sperry, 193 Mo. l. c. 173; Curd v. Brown, 148 Mo. l. c. 92; Mead v. Robertson, 131 Mo. App. l. c. 196.]

There is no doubt from the evidence in the record that James Burge expressed affection for the plaintiff and preferred to have him rather than an older person sleep at his house in the beginning of his last illness. His sister-in-law, Mrs. Burge, was called in by the doctor who began to visit James Burge oh February 6, 1911. She insisted that her brother-in-law needed some one to sleep in the house (since he had declined to be moved to her house or the hospital), and she mentioned several names. His reply was, “He did not want anybody.” She then asked him if he would let the little boy sleep there, and he replied, “Yes, I believe I would.” She called at the boy’s home and spoke to his mother about it and on the 7th of February a bed was fixed up for him at the home of James Burge and he slept there at night until the old man died.

On the 14th of February a night nurse, Mrs. Lane, was procured, who stayed there at night until the 23rd day of February when she was discharged for alleged cause. Mrs. Burge was constantly at the home of her brother-in-law during his illness and often spent the night there, and was advised with by him before and during his sickness, and transmitted at his direction money to New York, and was directed by him, during the early part of his illness, to deposit a check which he gave her, in their joint names, and to summon his brother who lived in New York and other relatives. She was sixty-nine years of age and was his only connection who lived in Springfield. She seems to be a childless and charitable woman of excellent character. The brother and other relatives arrived in Springfield -about the 21st day of February, 1911.

Oh the 14th of February, at the request of Mrs. Burge, the deceased made a deed of a lot to the Methodist Church. On the 15th of February, at her suggestion, he made a warranty deed to the boy, then about twelve years of age, conveying the house and lot in which he lived, worth about five or six hundred dollars. Upon the suggestion of Mr. Davies, the real estate agent, that a trustee was necessary, and at the request of the grantor, Mrs. Burge was made trustee. The deed was read over and signed and the real estate agent who prepared it was told to have it recorded that day, February 15, 1911, which was done. It contained simply a grant of the property described and made no mention of anything else. The account of the making of this deed is thus given by the draftsman:

“Q. Tell the jury about what you know about the writing of that deed? A. Well, I don’t just recall the occasion of my being there and writing that deed, but I was in the room and Mrs. Burge was there and if I recollect properly the first expression, Mrs. Burge says: ‘James, if you want to do something for this boy, why not deed him this place?’ And he kind of hestitated a little. I don’t remember what he said. ‘Well-,’ he says, ‘I don’t want to be out of a home,’ And she says, ‘You know this isn’t worth probating/ And she says: ‘You ought to do something for him/ or something to that effect, and she says: ‘Why not give him this?’ Now I won’t say positive this was an expression from him, but one time I heard this. He says: ‘I want to give him some little something.’ Anyhow, that expression came in during some of these conversations and I think it was at this time. She was asking him to make a deed to a woman who had been doing his washing. It was an invaluable piece of property and I think she was asldng him to make a deed to an old colored fellow down close to ‘Happy Hollow,’ and she says: ‘He is bad off and it isn’t worth much, and make him a deed to that.’ And I think that was about all, and he consented to make this deed to this boy, and I says, ‘The boy is under age and possibly needs a trustee,’ and he might have suggested that, but anyhow he says, ‘Will Ellen do?’ and I says, ‘I guess so,’ and he says, ‘Ellen, will you act?’ and she says, ‘I don’t care,’ and I wrote the deed and put in Mrs. Burge as trustee for this boy.

“Q. He signed the deed? A. Yes, sir. He says, ‘I don’t know whether or not I can sign my name,’ and I says, ‘Well, it would be better for you to sign it than to sign by a mark,’ and there was a box close to him and he rested his arm on that and wrote his name. ’ ’

Davies then stated that James Burge after signing the deed handed it to him and said: ‘ ‘ Davies, hold the deed as long as I live, and if I get well I want it destroyed as though never made. ’ ’

No person was present when this deed was made except Mr. Davies, the real estate agent who prepared it, his wife, Mrs. Burge, and the grantor. It was finished late in 'the afternoon of the 15th of February. ■The night nurse, Mrs. Lane, states that she had returned for duty before it was signed and observed the signing and completion of the transaction. Mr. Davies and wife and Mrs. Burge testified that nothing was said by the grantor when he executed the deed about giving the boy the “contents” of the house or furniture.

On February 21st the relatives of James Burge arrived at his house, his brother Frank and wife from New York, and his nephew William Ayers and wife from Colorado. His brother was about eighty-four years old and his presence was anxiously desired by James Burge during his illness. He also attended to the investment of about $13,000, which money he had inherited upon the death of his sister in New York.

On February 22, 1911, James Burge talked about the disposition of his affairs in the presence of his relatives and some other persons. The boy’s mother, Mrs. Lane, the night nurse, Mrs. Keen, Mr. Frank Burge and Mrs. Frank Burge, were present.

For the plaintiff, Mrs. Lane, the night nurse, testified that the doctor had explained that Mr. Burge was in condition to attend to any business that he had. That she was the- “director” of the inquiries made of James Burge, and she would state what he said to the wife of Francis Burge, who would then repeat it to her husband, who was hard of hearing. She uses this language as conveying what James Burge said to her: “Well, he said to tell his brother that there was nothing here for his heirs, that it was all for the boy, and what was to be divided among the heirs was in New York.” She was then questioned, and answered as follows:

“Q. When he said that, whom did you tell? A. Francis Burge’s'wife and she would tell her husband. James and Francis was hard of hearing.. I could understand James and she couldn’t, and he would tell me and I would tell her and she would talk to Francis.

“Q. When he made that statement what did he do? A. They didn’t do anything.

“Q. Was that all there was to that? A. That is all there was to it. I told them.

“Q. What was the condition of his mind all along then? A. It was just perfect. He had full possession of his mind; yes, sir.

“Q. That was on Wednesday, the 22nd, Washington’s birthday ? A. Yes, sir.

“Q. Did Mr. Burge know what day that was? A. Yes, sir.

“Q. Tell the jury how? A. When'I was giving him his bath that morning he seemed to be so much better. I asked him if he knew what day of the week it was, and he said: ‘Wednesday.’ And I says: ‘You can’t tell what day of the month.’ And he says: ‘It is the 22nd of February, and the .greatest man that was ever born was born on that day.’

“Q. When was the first time they mentioned the property? A. The 22nd.

“Q. That was on Wednesday afternoon? A. Yes, sir. •

“Q. Have you told the whole conversation that took place Wednesday afternoon? A. I think so.

“Q. Was anything said about his property in New York? A. Yes, sir. He said the property in New York was for the heirs.

“Q. Did he mention any real estate besides the house and lot there? A. He said the contents of the building.

“Q. Did he mention any other real estate? A. No, sir; just the contents.

“Q. Did he say anything about any other, house and lots? A. Not there that day.

“Q. Did he mention any other house and lots beside that one he made the deed to? A. No, sir.

“Q. Did he say anything about money in the bank there? A. No, sir; there wasn’t any money in the bank that I know of.

“Q. He didn’t mention any? A. No, sir.

“Q. Did he tell you about what form his property was in? A. No, sir; he never said anything about that.

“Q. Did he tell you'whether or not he owned any bills of any kind? A. No, sir.

“Q. Or any notes or mortgages? A. No, sir.

“Q. Did he ever tell you how much property he had and how much money he had? A. No. sir.

“Q. Did he ever tell you how much he had given the boy? A. No, sir.

“Q. Did he ever ¡bell you the worth of the property he gave the boy? A. No, sir; said money and the contents of that house. . . .

“Q. Did Mrs. Burge say anything? A. No, sir.

“Q. Did Mrs. Francis Burge say anything? A. No, sir.

“Q. Did Francis Burge manifest any surprise? A. No, sir; they didn’t know there was a boy until I mentioned it.

“Q. They had been there a couple of days? A. Yes, sir.

“Q. How long were you there? A. I was there about half an hour.”

Mrs. Northrip, the mother of the plaintiff, states the occurrences of- the 22nd of February to have been in substance that, after the doctor had informed the relatives that James Burge did not have long to live but was in full possession of his .faculties, and that they had better have him attend to any necessary business, Mrs. Frank Burge asked Mrs. Lane to talk for James Burge and she would talk for her husband Frank Burge, as they were both hard of hearing. The witness adds:

“A. Mrs. Lane asked him if there was any business he wanted to tend to, that the relatives was there, and his brother was there, and she asked him to tell Mr. Frank Burge what he had done for this little boy. And so he says: ‘Well, this little boy, I have déeded my home house and lot and give Mm the contents of the house, is what I have give to the little boy.’ And he says: ‘What I have in Troy, New York, that goes to the relatives.’ And he says.: ‘There is notMng else here for the relatives, in Springfield.’

“Q. Did he mention anything about this money that had been taken out of the house at that time? A. No, sir; I don’t remember anything being said about the money then.

“Q. Did the nurse speak of it? A. That that was taken out?

“Q. Yes, madam. A. No, sir; not that I remember.

“Q. Did you mention it? A. No, sir; I never mentioned anything’. I just listened.

“Q. Was anything said about his other real estate, in Springfield? A. No, sir.

“Q. Do you know he owned other real estate? A. I heard it.

“Q. Did he say anything about the money he had in the bank there? A. Nothing more. All T heard him say about any money he said he had money to bear his expenses, but he pointed to some clothes there and says, ‘I want to be buried in that suit.’ And he says, ‘I have money besides what I give the boy to bear my expenses.’

“Q. Did he say where that was, or how much it was? A. No, sir; he didn’t. He left the impression as though it was in the bank, but I didn’t know.

‘ ‘ Q. Did any member of his family, his relatives, ask any question when he said there wasn’t anything in Springfield for them? A. No, sir.

“Q. They didn’t say anything? A. No, sir.

“Q. Did they manifest any surprise? A. No, ■sir; I wouldn't call it any surprise.

“Q. Nothing was said about the fact he gave the boy everything there was in Springfield? A. The relatives didn’t say anything. Mr. Burge told them he had.

“Q. I will ask you if he didn’t say there at that time he wanted his brother Francis to take his personal property and divide it up among his brothers, nephews, nieces, share and share alike? A. No, sir.

“Q. Didn’t he say it was as simple as this: ‘If you had three men and six dollars to divide, you would give two to one, and two to another and two to the third one? A. I didn’t hear that.

“Q. You would have heard it if he had said it? A. I didn’t hear him say them words. He was telling he deeded his home house and lot to the little boy and give him the contents, and says: ‘ There is nothing else here for the relatives.’ He said what was in New York was what he give the relatives, and says: ‘Divide that out between the relatives.’

“Q. Did he say how it was to be divided? A. No, sir; I didn’t hear it.

“Q. Did anybody ask him to make a will? A. No, sir.

“Q. "Was anything said about a will? A. No, they didn’t ask him to make a will. They just asked him, Mrs. Lane asked him, to explain to his brother how he wanted his business tended to.

“Q. Have you told all the conversation as far as you remember? A. Yes, sir. Mrs. Lane then left and ’phoned for Mr. Davies to come down and explain about that deed that went to the boy.

“Q. You knew at that time Mr. Davies helped rob this house? A. Yes, sir.

“Q. Why did you send for him? A. I don’t know why they sent for him. I had nothing to do with it.

“Q. Did Mr. Davies come up? A. Yes, sir.

Mrs. Luella Keen, a witness for' plaintiff, testified as to the statements of James Burge on the 22nd of February as follows:

“A. So Mrs. Lane taken her chair and sit by Mr. James Burge and told him what the doctor said, and she says: ‘What do you want the little boy to have?’ And he says: ‘I have given this little boy the house and lot and the contents.’ And she says: ‘How soon do you want him to take possession?’ And he says: ‘As soon as I am gone.’ And Mrs. North-rip was standing in the door and I turned to her and made the remark, that I heard he had done this and now I know it, I hear it for myself. And someone suggested that they ’phone for Mr. Davies, and we had a ’phone, and I says, ‘I will go with whoever goes.’ And I went and didn’t go back.’

“Q. Now, this statement of Mr. Burge in which he said he had given the house and lot and all the contents of the house to the little boy, who was present then? A. Mrs. Northrip, Mrs. Lane, Mr. Frank Burge, -Mrs. Frank Burge, Jim Burge and myself.

“Q. Did they do anything or say anything when •he made that statement? A. Nothing more than Mrs. Frank Burge explained to her husband.”

Mrs. Agnes Burge, the wife of Francis Burge, a witness for defendant, relates what took place on the 22nd of February in the following language:

“A. Mrs. Lane came in the kitchen where we were, and said: ‘Mr. Burge, James Burge would make a will.’ And we all went in the room where he was and my husband says: ‘James, do you want to make a will?’ and he said, ‘No.’ And then in a few minutes he asked that they write down something, and they got a card and pencil and Mr. James Burge says: ‘Now Frank you write this: “On the 21st day of February came my brother, Francis Burge, and his wife, Agnes Burge, to Springfield to visit a brother who has been sick for some time.” ’ And he says: ‘Have you got that down?’ And my husband says: ‘Yes, sir.’ Then he says: ‘Now I would like for you to write all the children’s names and ages.’ And Francis put that down. Then he says: ‘Sign your name.’ And Francis signed his name. And he says: ‘Where is that boy they call my nephew?’ And they called William Ayers and his wife with him. And he says: ‘I would like for you to write the children’s names there.’ And Mrs. Ayers wrote their children’s names and ages. And he said: ‘Now don’t that show a little affection for me, that you would come fifteen hundred miles to see me? And we said, ‘Yes.’ And he said: ‘Hang that up on the wall. Some time that might be framed.’ And Mrs. Lane, the nurse, took the paper and hung it up on a nail. . . .

“Q. Was that about all that was said, so far as you remember? A. At that time, yes, sir.

“Q. Was the boy, Orris Northrip, mentioned? A. No, sir; he was not.

“Q. Did you at any time have any conversation, or hear any conversation, between Mr. James Burge and anyone else in regard to the disposition of his property? A. No, sir; I did not at that time.

“Q. At any time? A. Nobody else except my husband and myself.

“Q. What was the conversation that you refer to? A. Well, he told my husband he wanted him to divide all his money equal.

“Q. When was this conversation that you speak of? A. The same day we wrote the paper.

“Q. Was it at that time or later in the day? A. No, sir; it was after dinner.

“Q. Do you know how they came to engage in that conversation? A. Well, Mrs. Lane, the nurse, came out in the kitchen and she said: ‘Now, if you have any business you want to talk over with Mr. Burge you better do it now, because he is in as good condition now as he ever will be, and the doctor thinks if the water reaches his heart he will die, and I want to be there when you talk to him, because he has told me his affairs and I want to be there.’ And she turned and went in the room, where he was sitting in the chair, and so far as I know just my husband and myself and Mrs. Lane was all that was there.

“Q. Did your husband stand up there or sit down by him? A. He sat down by.him and drew the chair close.

“Q. What was the conversation had there? A. Well, he told Francis he wanted him to divide his money equally. It went to Ms brothers, nephews and nieces. He wanted it divided equally.

“Q. Did he explain what he meant by equally? A, Later in the conversation he did.

“Q. Just tell the jury what he said? A. Well, he had been talking something about the money, and he said: ‘Now, Frank, it is as simple as if you had three men sitting there and you had six dollars and give two dollars to one, and give two to that one and two to the other one.’ And he says: ‘Now Frank, if you don’t understand, Mr. Davies knows it all.’

“Q. Did Mrs. Lane say anything? ' A. Mrs. Lane stepped around from his rear where she had been standing. She was rubbing or stroking Ms forehead, and she stepped around to the side and says: ‘Mr. Burge, do you want to make the boy an'heir?’ Then he says: ‘Yes.’ And I says: ‘James, how much do you want to give the boy?’ And he says: “Oh‘if you have ten dollars left, or one hundred dollars left, can’t you give it to him?’ And there was no answer made. Then Mrs. Lane says: ‘Do you want the boy to have the effects here?’ and motioned her hands around that way (indicating), and he said, in a tired kind of voice: ‘If he cares to have them.’ And then she asked: ‘How soon do you want them to take possession? Do you want them to take possession right away?’ And he says: ‘If they want to.’ Then he says: ‘Who is this talking? And she and I both said: ‘The nurse.’ And he said: ‘Oh! the nurse,’ and he didn’t say anything more, and stopped. That was the end of the conversation.

“Did she say anything about the contents of the house further than you mentioned? A. No, sir.

“Q. Did she say anything about having previously given the boy anything? A. No, sir; the boy’s name was not mentioned, and I never saw him speak to the boy while I was there, and I was there five days, and never saw him speak to the boy.

“Q. Did you ever hear him mention his name other than when Mrs. Lane called his attention to the boy? A. I have no recollection of hearing it.

“Q. Did you hear other or further conversation about the disposition of the property? A. Not about the disposition of the property, but I heard him say he wanted my husband to give his boys their share of the money and let them put it into their business and use it, and not to do as he had done. And he said: ‘Let them build a good business with it and carry my name down decently and honorably, and not let my name die out.’ ”

Francis Burge, age eighty-four, the brother from New York, states the occurrences on February 22nd to have been as follows:

“Q. Was there any talk about the property that day? A. He spoke of it. He says, ‘Frank,’ he always called me Frank.

“Q. Do you remember how that conversation came up? A. He brought it up himself.

“Q. Just tell the facts? A. He says: ‘Frank, I want you to divide all my money up between brothers, nephews and nieces. Give your boys theirs now and let them put it in their business, use it and enjoy it and build up a good business. Do not do as I have done, but., that money will make them decent and honorable. ’

“Q. Who was present at that conversation? A. My wife was there part of the time, and I suppose Mrs. Lane came in sometime afterwards. I don’t remember of her being there when James told me that. He brought that subject up without my speaking to him.

“Q. Did he say'what money was to be divided? A. He says: ‘Ellen has the money. If you don’t understand Frank Davies knows it all. It is as simple as it can be; if you had sis dollars and three men to share it, give two to this one, two to that one and. two to that one.’ That was his sentiment.

“Q. Was that the time Mrs. Lane would do the talking with James, and your wife for you? A. When they was speaking of that was the time Mrs. Lane broke in and he thought Mrs. Burg'e was talking and must have discovered the difference in the voice, and says: ‘Who is that talking?’

“Q. What did Mrs. Lane say? A. She says: ■‘Do you want the boy to have the effects?’ stretching out her arms this way (indicating), and James turned his head and looked to see what there was in the room, and says, ‘Yes,’ referring to what was in the room there, the furniture.”

This is the substance of all the testimony touching the declarations of James Burge during his illness.

III.

Jury Trial inEquity base's The testimony did not present issues necessary to be submitted to a jury as in actions at law. It would have been correct practice for the trial W^g® to have submitted particular issues of fact to the jury whose verdict might have assisted him in making his own finding of the facts. But he should not deny the request of the defendant for submission of specific questions of fact, and then relegate the whole controversy to the jury as he did. “General instructions to'jurors or declarations of law when given in equitable actions serve no other purpose than to indicate the mind of the judge sitting as chancellor and the theory of equity applied by him. The verdict of juries in such cases is only advisory and might be wholly disregarded by the trial judge. The questions ordinarily presented on appeal in equity cases are, what does the preponderance of the competent evidence show? But in exceptional cases like the present, the sole question is whether the express trust alleged in personal property is sustained, not merely by the greater weight of the evidence, but by - an amount of credible testimony sufficient to dispel any reasonable doubt- in the mind of the court, as to the existence of a completed trust in reference to definite personalty and in favor of a certain beneficiary.

Gift of House: Contents. It is clear from the evidence in this record that the whole claim of plaintiff of a trust in the money and securities for which he obtained judgment below, is rested solely on the statements of his mother, the night nurse, and Mrs. Hillman and Mrs. Keen, two neighbors who called in to see the sick man during his last illness. The assistant night attendant, and son of Mrs. Hillman, was not called to testify. Not one of these four undertook to state anything said by James Burge before or at the time he signed and delivered the deed conveying the house and lot to the plaintiff. One of them, the night nurse, says she was present when the deceased wrote his name to the deed and acknowledged its execution. But she does not testify to a single expression made by him at the time, as to his intentions or as to the purpose of the deed or as to his purpose to make any other donations to the plaintiff. She says she first learned his intentions in that matter from what he said to her on the next morning when she was about to leave the house.

It is not claimed and there is no evidence in this record to sustain such a claim, that the deceased, James Burge, was at the time of the making of the deed, on February, 15, 1911, or at any other time during his illness when he spoke of his business affairs, lacking in mental power or full comprehension of all the matters referred to by him, and of his relations-to all persons present. Clearly it was not competent by his subsequent declarations to alter the terms of his previously executed and delivered and recorded deed, or to show that it did not include all that he intended to convey, in the absence of any fraud or imposition upon him in the matter of the execution of the deed, of which there is no evidence whatever in the present record. But even if this evidence of his admissions made on the following morning to the night nurse, and substantially the same admissions to' the other three witnesses for plaintiff, should be received as indicating that he had made such declarations at the time of the deed or subsequently, the question would still remain, whether the testimony as to such admissions so far outweighed the evidence contradicting them contained in this record, as to leave no reasonable doubt of the fact of .the making of such admissions'? We are unable to give that weight to the testimony for the plaintiff.

If there ever was a time when it would have been natural for James Burge to explain his intentions as to the plaintiff, it was when he made a deed of gift to him. His real estate agent was told to prepare the deed and after it ha'd been written it was read over and signed by the grantor, who then directed it to be recorded that afternoon. During the whole transaction, and after its consummation, he did not utter a word indicating that he desired to give the plaintiff anything beyond the house and lot. The wife of the real estate agent was present, Mrs. Burge was present and the night nurse came in before he read over and signed the deed, and observed him doing these things. Yet he gave no hint, at that time, to any of these persons, that he desired to give the boy about $32,000 in money and notes then hidden in his house. On the contrary, within three 'days after the deed, he caused all of his money to be taken out and deposited in the bank. If James Burge had designed to make the plaintiff a gift of all his money and bonds still secreted in his house, and had been in full possession of Ms mental faculties, as is undenied, Ms failure to mention that purpose on the very occasion when he was giving him a deed to his house and lot and when he knew that a part of the hidden money had been taken from the house, is incomprehensible. And when it is borne in mind that he did not rest until he got the remainder of tMs money taken away by Saturday the 18th, it is simply incredible that he intended to create a trust in favor of the boy by transferring that money as the “contents” of the house on the 15th of February, 1911, and making himself the trustee thereof until the boy, or some one for him, should take possession of the house and “contents” after Ms death.

His action in causing the removal of the money before and after the deed, makes it clear to a demonstration, that he did not intend that there should remain in his house at his death any portion of the money and securities which he had previously kept there and in the workbench. We conclude that there is an utter failure of proof in this record that James Burge designed by using (if he did use) the words “contents” “or when I say contents 1 mean everything,” to vest any title in equity in this plaintiff to the money and securities which had been taken from his home or which he caused to be taken from his house within three days after it is testified he used that language. For if he had such intention he would not have defeated it by revealing the secret hiding places, before and after making the deed and causing these ‘ ‘ contents ” to be deposited in the bank without providing that they should be turned over to plaintiff or some one for Mm.

We attach still less weight to the “terms” said by plaintiff’s witnesses to have been used by James Burge on the 22nd of February, 1911. At that date not a dollar of his hoardings remained in his house. His mind at that time was “perfect” (according to the statement of the night nurse). He was a clearheaded man in his business dealings. His fortune had come by toiling, saving and loaning his earnings on mortgages. He had full cognizance of the amount, nature and location of his estate. He kept the bulk of his securities and cash in this house and in his workbench, and about nine thousand dollars on deposit in Springfield banks, and about thirteen thousand invested in New York in charge of his brother. His brother and his brother’s wife, and his nephew and his nephew’s wife, had arrived at his home the night before. He was deeply touched by their coming to visit him, in fact his brother sat by his side on the 22nd of February and held his hands while he was expressing his wishes as to the disposal of his estate. He required his brother to make a memorandum of the names of all of his children and the names of his nephew’s children, and the night nurse hung it on the wall where he said it could be thereafter framed. The testimony of his brother, his brother’s wife and his sister-in-law, Mrs. Burge, is set out in full above. Their account of what was actually said and done on that occasion bears every mark of truth and naturalness, and is in our opinion substantially correct. The statement of the nurse, to the contrary, and to the effect that he then said that his property in New York was to go to his heirs and every thing he had in Springfield was to go to the plaintiff boy, does not impress us with verity or satisfy our minds that any such declarations were made by him. It could only have been prompted by dislike for his brother and nephew and niece of which there is not the faintest evidence in the record. We do not believe that he made statements so intrinsically improbable as the' one testified to by the night nurse. This witness was shown to be without reputation for chastity and twice divorced and suspected of having been indiscreet in connection with a son of Mrs. Hillman, who was assisting her in waiting on the sick man. She was discharged from service on the 23rd of February for officiousness if not misconduct. Her version of the affair does not show candor, sincerity or disinterestedness. When she was questioned about her knowledge of the case by the attorney for the defendant after the suit was brought, she denied knowing anything about it and refused to give any information whatever. Her story as a whole is an iteration and reiteration of alleged general and indefinite statements of the deceased which are not such as are likely to have been uttered by a man of his habits of life and clearheadedness. According to her testimony he said that his property in Springfield belonged to the boy and Ms property in New York belonged to his blood kin. Yet he specified neither, although he had a perfect knowledge of the kind and extent of the property in lands, notes, money and bank deposits belonging to himself and where deposited and in what names. If her statement is true he made no reference whatever to lots owned by Mm in Springfield, nor the money in the bank, and did not call on the person in charge of it to hold it or turn it over to the boy. Nor did he suggest the making of a deed to three other lots or tracts of land owned by him in that city, although on the 15th of February when he did agree to give the boy the residence, he at once called his real estate agent to come out and prepare the deed, and read it over carefully, signed it, acknowledged it and ordered it tó be recorded. For these reasons we find it impossible to credit the account given by the night nurse and other witnesses for plaintiff, of the sayings of James Burge on the 22nd of February.

On the other hand, we believe that the account given by his brother and brother’s wife, and his sister-in-law, of the events of that day, is in accordance with the facts. His sister-in-law was a very old woman of exemplary life and character. She had donated a hospital of fifty rooms to the City of Springfield. She had never shown the slightest indication of self-seeking in her conduct towards James Burge. She seems to have had ample fortune and to have had a genuine regard for her brother-in-law and to have treated him with great kindness and wholly without any selfish motives. His brother was his chief adviser in his business matters in New York and the two had a strong affection for each other. The statements which he made to these witnesses are clear, simple and direct' and such as are not unnatural to a man of his type, close fisted and penurious in his dealings, but plain and simple in speech, who was telling his brother how his leavings should be disposed of in simple terms and in the most inexpensive manner.

IV.

Credibility of witnesses. Neither have we any confidence in the statements made by the night nurse and Mrs. Northrip, that he said to them on Saturday the 18th of February, in the absence of all other persons, that his house had been robbed by his sister-in-law and the real estate agent and that the boy would have trouble but in the end would get the better of them. The improbability of these statements is 'clear to our minds from the fact that thereafter and up to the time of his death and esp"ecially on the 22nd of February, he showed the fullest trust in his sister-in-law and his real estate agent; and after explaining to his brother the simple process of dividing the money and effects which they had removed, so that his brother’s children and his nephew’s children should share equally with their fathers, he said to his brother, that Davies, the real estate agent, and Ellen, his sister-in-law, knew exactly what he wanted done with it.

V.

We see no escape from the conclusion that the alleged declarations claimed by plaintiff’s witnesses to have been made by James Burge were not proven by testimony so clear and cogent as to banish all reasonable doubt of its truthfulness from our minds. For that reason, if for no other, plaintiff’s case must fail. But we do not wish to be understood by deciding this case on the insufficiency of the proof, that we impliedly admit that a completed verbal trust would have been established in the property sued for, if the words or admissions upon which it was rested had been sustained by that degree of evidence prescribed by law. If that point had been reached, we would not concede that the vague, equivocal, uncertain terms attributed to James Burge would have created a verbal trust in praesenti to the property in suit in favor of the plaintiff. There' is no meaning which can be rationally attached to the alleged admissions or declarations of James Burge, which necessarily carries the idea of an intention and act on his part of present transfer of the equitable title to his money and other personal property to the plaintiff. Without that, self-evidently no completed trust enforceable against him or his estate could arise under the principles of equity governing the creation of trusts in personalty by express oral grant.

The judgment in this case is reversed.

All concur.