70 Vt. 19 | Vt. | 1896
(1) The solicitor for the defendants concedes
If the conveyance to Norton had been made for the purpose of having him convey to the wife, Norton would have taken the title in trust for the wife. He would have taken and held it for the sole purpose of transferring it to her, and have held the title in trust for her sole use and benefit. In
By the concession of the parties, the intestate, while Norton held the legal title, was the equitable owner of the property. The property conveyed by the intestate to Norton, by the concession of the parties, became a trust estate. In kind, it was such a trust as arises by implication and operation of law. As said in the American notes to Dyer v. Dyer, 1 L. C. in Eq. 276, “The trust which results by implication and operation of law, from the payment of the purchase money or of apart of it, and without any agreement, is a pure and simple trust of the ownership of the land; it is not an interest in the proceeds of the land, nor a lien upon it for the advance, nor an equity or right to a sum of money to be raised out of it, or upon the security of it.” However created, such was the trust in regard to this property existing between the intestate and Norton, when Norton held the title. By Norton’s deed of this property, when considered by itself, to Mrs. Smith, the same trust continued, or a trust in every essential, a resulting trust. If the conveyance by Norton had been to a stranger under the circumstances .in which it is found to have been made to
Perry uses this language, “Whether a purchase In the name of wife or child is an advancement or not, is a question of pure intention, though presumed in the first instance to be a provision and settlement; therefore, any antecedent
Any legitimate evidence that will rebut such presumption may be received and considered. . Bickford v. Estate of Bickford, 68 Vt., 525. It would be anomalous if she could by parol show that she was the wife of the intestate and that he, being the equitable owner of the property, but not having the title, directed Norton, who held the title for him, to convey it to his wife, to raise the presumption of an advancement, and that he should be
(2) The defendant further contends that the trust found by the master is complicated, other and different from such as results by implication of law. In substance he"urged this contention when this case was before this court astound in 67 Vt. 542, and it was denied. It was a question then in the case on the same facts as now and necessarily considered to uphold that decision; because — notwithstanding Norton held the property for the benefit of the intestate,', as found by the master, if when the property was conveyed by Norton to defendant Elizabeth a new and different trust or an express trust was created between herself and husbánd, then the case could not have been disposed of as it
To the same legal effect are the master’s findings in regard to what the intestate and Elizabeth understood should be done with the property in the case of the death of either. He finds, “if she should survive him,” she was “to reserve her own homestead and dower rights, and to pay up said debts, and if any property remained to distribute it to the heirs at law of said Alfred, in the same shares as they would have taken had he died owner thereof. She was the younger of the two, and expected to outlive him; but it was their common and mutual intent, in case it became apparent that she would probably die first, that she should deed the property back to him or give him some writing whereby he might hold the same.” On this finding, in case of the death of either, they mutually understood the property was to be disposed of just as the law would dispose of it if it were his property. All the findings of the master leave the property' belonging to the intestate when she held the title the same as it did when Norton held it, except she had the added right to first have his notes which she had signed paid out of it. This change could be made by parol.
The pro forma decree is reversed and cause remanded to be proceeded with in accordance with the mandate covering the views herein expressed.