222 N.C. 393
N.C.
1942
Seawell, J.

The paper writing referred to as a letter of Mrs. Taylor was offered for probate in solemn form upon caveat of these defendants; and from an adverse decree in the court below, the defendants appealed. In re Will of Taylor, 220 N. C., 524, 17 S. E. (2d), 654. A new trial was granted, and it is assumed from the record that the issue of devisavit vel non was found against the paper. It is now offered, with other evidence, to establish a parol trust in favor of plaintiff in the lands descended to defendants upon the death, intestate, of the sister, Mrs. Taylor. Since it does not appear from the evidence that the existence of the letter was known to the defendants until some time after the death of Mrs. Taylor, such commitments as they may have made were not based on the letter, and it has, at most, a minor evidential bearing in the case. Plaintiff must establish his right, upon the verity and sufficiency of the alleged promises made by the defendants to Mrs. Taylor. Accepting the evidence of plaintiff as true, for the purpose of discussion, and taking it in the light most, favorable to him, we inquire whether it could possibly have the effect of establishing the suggested trust.

In North Carolina the seventh section of the English statute of frauds has not been enacted into law, and no equivalent has been adopted. Therefore, it is held that an express trust may be impressed on land by adequate parol agreement accompanying the conveyance of the legal title. Peele v. LeRoy, ante, 123; Wilson v. Jones, 176 N. C., 205, 97 S. E., 18; Boone v. Lee, 175 N. C., 383, 95 S. E., 659; Anderson v. Harrington, 163 N. C., 140, 79 S. E., 426; Blackburn v. Blackburn, 109 N. C., 488, 489, 13 S. E., 937; Pittman v. Pittman, 107 N. C., 159, 12 S. E., 61; Riggs v. Swann, 59 N. C., 118; Shelton v. Shelton, 58 N. C., 292.

But we have found no case supporting the view that such a parol trust may be engrafted upon an inheritance, as the plaintiff seeks to do. If the principle should be judicially recognized, the effect would be to substitute a prior parol agreement for a devise by a will, made with the *397 formalities and solemnities by Avhich testamentary dispositions are protected, and open the door to endless frauds upon the laws of inheritance.

The transaction out of which an express parol trust of this nature may arise is necessarily one of contract. In considering the effect of the parol promise or agreement, we must not forget that the principal role in the creation of an express trust is taken by the owner with that intent; the parol promise is complementary and incidental to such action as is taken by the owner and in furtherance thereof. It is effectual only when made in connection with the transfer of title and, by necessary inference, to the party who makes the transfer. Dover v. Rhea, 108 N. C., 88, 13 S. E., 164. It presupposes that such party has control of the subject matter of the trust which he desires to create, and contributes it by conveyance of the land with that intent (Tiffany, Eeal Property, 1939, section 250), the grantee, at the same time, accepting the title as affected by his agreement. Peele v. LeRoy, supra. Devolution of title in. a case of intestacy is no more the voluntary act of the decedent owner than is his own dissolution. It is a thing that will happen if let alone; the resulting inheritance is a gift of the law and not the grant of the decedent. The inheritance law is certainly innocent of any purpose to create a trust in determining the succession, and it imposes no condition of acceptance other than inheritability. There is nothing, in the legal sense, upon which a parol trust may be engrafted.

Moreover, the statute of descents invests the heir with the beneficial interest — in this case the fee — which is inconsistent with the theory of trust. We do not understand that — in the absence of fraud or mutual mistake — an express parol trust, entirely repugnant to its provisions, can be engrafted on a deed unmistakably conveying the beneficial interest. Gaylord v. Gaylord, 150 N. C., 222, 227, 63 S. E., 1028. The plaintiff is in no better position.

It must be assumed that all parties concerned knew that if the defendants survived, and Mrs. Taylor died intestate, the sisters would inherit in their own right. Interpreting the alleged agreement as favorably to the plaintiff as the circumstances will permit, it can be regarded only as a promise to convey the lands to the plaintiff if and when the defendants came into the inheritance. The plaintiff does not seek to recover on that theory, realizing, perhaps, that such a promise would be within the statute of frauds. If the defendants made any commitment to Mrs. Taylor in response to her desire that plaintiff should have the land in case she died intestate, the obligation is moral rather than legal.

Judgment as of nonsuit was properly entered and is

Affirmed.