71 Colo. 473 | Colo. | 1922
delivered the opinion of the court.
Florence J. Vosburgh was the plaintiff below and brings the case here on error,, complaining of the decree whereby the court charged upon her and her sister, the defendant Grace B. Knight, a trust on certain property and directed how the title thereof should go.
The essential facts are as follows: The defendant in error, Mary K. T. Burnham, is the widow of the late Dr. Norman G. Burnham of Denver. The plaintiff and Grace B. Knight are their daughters, and the defendants in error, Genevieve K. Smith and W. Burnham Knight are the children of Grace B. Knight. The plaintiff has no children.
Dr. and Mrs. Burnham, in his lifetime, gave to each of their said daughters a dwelling-house which does not concern us now, but not long before his death they conveyed to their daughters all their property, amounting, perhaps, to $100,000 in value.
February 19, 1920, sometime after Dr. Burnham’s death, Mrs. Knight and Mrs. Burnham came with a notary to Mrs. Vosburgh’s house, bringing a deed which they persuaded her to sign with Mrs. Knight. By this deed the plaintiff and Mrs. Knight purported to convey to Mrs. Knight’s children all the said property except- the two dwellings above named, reserving, however, to each of the grantors an estate in an undivided half thereof for her life.
Repenting of her act, Mrs. Vosburgh that night consulted ' an attorney, and shortly after brought suit to set aside this deed, alleging undue influence by reason of her sister’s dominating character and her own weakness from illness and consequent mental incapacity. The defendants allege that the purpose of the original conveyance to the sisters was that they should take care of their parents during their lives, retain life estates fop themselves, with remainder to their children and that the deed sought to be set aside was. made in pursuance of that understanding.
Mrs. Burnham intervened alleging that up to the begin
The decree is in accordance with this prayer. It adds, however, a provision in accordance “with the answer that a life estate in said property, subject to said trust, is vested in the plaintiff and the defendant Mrs. Knight, remainder to the child or children of their bodies them surviving.
Plaintiff in error argues a number of points all of which we have examined with care, but find it necessary to mention only two: First, that the evidence does not support the finding; second, that the court has established a trust upon oral testimony only.
As to the first proposition it is enough to say that the evidence was conflicting. As to the second we think the court was right. It would require strong evidence to prove that Dr. Burnham' and his wife denuded themselves of all their property by deed to their daughters without an understanding of some kind, e. g., that they were to be supported out of the income; and, in view of the confidential relations between the parties, that must be said to be sufficient to create a constructive trust. Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790. It follows that the trust was rightly established by the court so far as the life estates are concerned. As to the remainder to the grandchildren, the plaintiff is in no position to object, for she has parted with her title thereto.by deed which the court has declined to cancel; but the life estates and the remainder constitute the whole estate; therefore the validity of the trust cannot be denied.
The judgment is affirmed.
Mr. Chief Justice Scott, Mr. Justice Campbell and Mr. Justice Wpiitford not participating.
