132 Wis. 656 | Wis. | 1907
The plaintiff seeks to recover from defendant a one-half interest in the real estate of which Olive Blake Stitt died seised and which defendant now claims as her sole heir. It is averred by defendant that the facts alleged do not constitute a ground for the equitable relief demanded. As appears from the foregoing statement, the complaint contains allegations to the effect that Olive Blake Stitt, deceased, desired to dispose of her property to plaintiff and defendant in equal shares; that to accomplish this end she proposed to make a transfer to plaintiff of a one-half interest in the real estate then owned by her and of which she died seised; and that she, relying on the representations made to her by the defendant, refrained from making such a transfer for the intended purpose, and in place and stead thereof, at defendant’s request and solicitation, she executed a note in plaintiff’s favor, which defendant also signed as a joint maker, and which was made payable “after my demise out of my estate.” It is also alleged that defendant made his will, giving his real and personal estate to plaintiff in case he should survive decedent, and that he did this to influence her to refrain from making her intended conveyance to plaintiff of an interest in her real estate as a testamentary gift, and that she, relying on his assurances and promises, his execution of the note jointly with her, and his testamentary disposition of his estate to the plaintiff, as stated, believed that he would after her decease carry out her intention of securing to plaintiff the one-half interest in her real property, and she therefore omitted to transfer it as she desired. It is also alleged that, since the decease of Olive Blake Stitt, defendant has refused to carry out such promises, and that
The question is whether the trial court correctly held that the facts alleged constitute a good ground for equitable relief to impress the property of decedent’s estate in defendant’s possession or control with a trust in plaintiff’s favor, so as to secure to him the interest which he alleges the decedent intended to give him and which he alleges the defendant prevented by his fraudulent promises, assurances, and acquiescence. There is no question but that the defendant is the heir at law of the deceased, and as such, in view of her intestacy, inherits all of her property, and, unless the trust demanded be imposed upon her estate, that he will be directly benefited by her omission to transfer a part of it to plaintiff, as it is alleged she intended to do. The right to relief by plaintiff is based upon defendant’s fraud in preventing decedent from effectuating a transfer of her property to plaintiff, and is sought to be enforced by impressing a trust on the property of her estate. The principle is stated by Mr. Pomeroy, in his Equity Jurisprudence (vol. 2, § 919, 3d ed.), as follows:
“The land descending to the heir may be impressed with a trust, where he has prevented the testator from making an intended devise by fraudulently representing to the testator that his intention will be carried into effect towards the beneficiary as fully as though the devise were made.”
This jurisdiction has been extended to cases analogous to the fraudulent prevention of the making of intended testamentary gifts, such as preventing persons, through the interposition of fraud, from doing intended acts for the benefit of another. 2 Pom. Eq. Jur. (3d ed.) § 919. Kerr, Eraud & M. 213, states that the adjudications go upon the principle
This principle was recognized and applied by this court in the case of Brook v. Chappell, 34 Wis. 405, which is analogous in its equitable features to the cause alleged in this complaint. There a residuary legatee in a will promised the testator, who contemplated changing his will by making additional bequests to persons not mentioned in the will, that he would pay the sums to the persons testator so intended to add to and include in his will, and he thus induced the testator to omit changing his will or adding such provisions by codicil. After testator’s death he refused to comply with such promise. After an extended examination of the adjudications it was considered and held that under such circumstances equity would grant relief upon the ground of fraud, and would impress a trust on the property so obtained by the residuary legatee for the amount so withheld from the proposed legatees. The opinion of the court in Hoge v. Hoge, 1 Watts (Pa.) 163, an analogous case, was approved as a correct and discriminating statement of the law, which was to the effect that the creation of such a trust and its establishment by parol evidence was not in violation of' the rules of law providing for the transfer of an- intei’est in property in writing. In the case of Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240, the court, speaking on the subject of creating a trust in favor of an intended beneficiary in cases of this nature, observes:
“It must always appear that the decedent relied upon the promise of the heir or devisee as an effective arrangement for the future disposition of his property. This principle is fundamental and universal. Such a trust as this is claimed to be. has its origin in fraud. It is forced, if necessary, upon the conscience of the party to prevent the accomplishment .of a fraudulent result. It is constructed to compel the disponee to do with the estate coming to him as he has induced his ancestor or testator to believe that he will do. It is upheld*662 ■when, and only when, it -would be unconscientious for tbe dis-ponee to retain tbe estate for his own benefit. It exists only because tbe decedent relied upon tbe promise of tbe beir. If tbe decedent did not rely upon tbe promise there is no fraud and tbe trust fails. It is not a fraud not to keep a promise that was not relied upon.”
We deem tbis an accurate and correct statement of tbe elements constituting tbe grounds of tbis equitable relief, and are of opinion that tbe allegations of tbe complaint before us are sufficiently broad to cover these elements of tbe grounds of equitable relief, and that tbe ruling of tbe trial court on tbe demurrer was correct. Other adjudications bearing on this question are: Grant v. Bradstreet, 87 Me. 583, 33 Atl. 165; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464; Williams v. Fitch, 18 N. Y. 546; Hutchings v. Miner, 46 N. Y. 456; In re Will of O’Hara, 95 N. Y. 403; Ahrens v. Jones, 169 N. Y. 555, 62 N. E. 660; Williams v. Vreeland, 32 N. J. Eq. 135, and note; Vreeland v. Williams, 32 N. J. Eq. 734; Devenish v. Baines, Finch, Prec. in Ch. case’ 3; Bulkley v. Wilford, 2 Cl. & Fin. 102; 3 Pom. Eq. Jur. (3d ed.) § 1054; 1 Perry, Trusts (5th ed.) §§ 171-181.
By the Court. — Tbe order appealed from is affirmed.