93 A. 533 | Conn. | 1915
The plaintiff purchased in 1889 land in Wolcott with his own money and caused the title to be taken in the name of his wife, upon the parol agreement with her, made prior to or at the time of purchase, that, on account of his own poor health and the probability that she would outlive him, the title should be placed in her, to be held by her in trust for him, and on his request be conveyed to him at any time, and that he should enter into possession, pay the mortgage thereon and maintain and improve the property, and that if she should outlive him the title should vest in her at his decease.
The plaintiff fully carried out his part of this agreement, *245 and has, since the purchase, been in possession of the premises, and his wife, during her life, always regarded and treated the property as his. The plaintiff's wife died in 1906.
The finding recites that at the time of this purchase, or soon thereafter, the wife either executed a deed which conveyed the land to the plaintiff, or executed a writing recognizing plaintiff's title and agreeing to carry out the trust in his favor created by or resulting from their agreement. This instrument remained in the joint possession of the plaintiff and his wife until after her death, when it was lost or destroyed without the knowledge of the plaintiff.
The draft-finding of the defendants recites that the plaintiff, after the purchase and taking of title in his wife's name, told her she should draw up a paper reciting that she held the place for him, and that it, in any event, should come back to him if she should predecease him. This paragraph of the draft-finding is marked "proven."
The finding and draft-finding must be read together; read thus, they, in our view, contain a recital that this instrument was executed subsequently to the purchase and conveyance.
The decree that the title is in the plaintiff is attacked on three grounds.
First, because the facts found do not clearly show that the entire purchase price was paid by the plaintiff. This claim is contradicted by the finding; demonstration of this is omitted, since that would involve merely an analysis of the finding and a reiteration of its facts.
Second, because the trust was in writing, and hence was an express and not a resulting trust. The purchase by the husband in the name of his wife with his money raised a presumption of fact that he intended a gift to his wife, but this presumption was a *246
rebuttable one. The nature of the trust and the real intention of the parties could be proved by parol, and when the presumption of a gift was rebutted the law created an enforceable trust in favor of the husband. "The existence of an express agreement in writing made by the parties subsequent to the transfer did not destroy the resulting trust." For it was relied upon, not to establish an express trust upon which the plaintiff rests, but to rebut the presumption of a gift, by indicating the disposition the parties intended should be made of the property. The trust was not in this case declared in writing at the time of the transaction. Nor does the finding show that such was the intention of the parties. Rather it shows that the trust intended was the trust implied by the law from these circumstances.Corr's Appeal,
Third, because the agreement of the parties is not identical with the agreement presumed by the law. When title is taken in the name of the wife, and the consideration of the conveyance paid by the husband under an agreement which is identical with that which the law implies from the circumstances of the transaction, it rebuts the presumption of a gift, and supports the implied agreement of the law, and a resulting trust arises. When the agreement proven is not identical with that implied by law, it cannot be held that the intention of the parties is identical with that implied by law; hence no resulting trust arises. Wilson
v. Warner,
That part of the agreement affecting her title, if she outlive him, may be disregarded in this action, since it does not affect the title under the trust implied by law, and was received in evidence not to prove an express agreement, but because it was a part of the agreement made, to rebut the presumption of a gift, and to set forth the circumstances and history of the transaction out of which the resulting trust arose.
No attempt is made in this action to establish the validity of that part of the parol agreement which vests title in the wife if she survive her husband. The decease of the wife before her husband made the provision for her benefit incapable of performance. The only part of the agreement which is capable of enforcement is identical with the agreement implied by law. The benefit to the husband under this agreement never *248 has and never could vary. By its terms the contingency of his death could alone prevent the securing of the benefit to him. It would be harsh and unreasonable doctrine which would deny him the benefit of the agreement because a contingency long since incapable of performance was incorporated in the agreement. If Mrs. Wilson had conveyed this property to her heirs and next of kin, it would have been a manifest breach of her trust; were the law to permit these heirs and next of kin to hold this property, it would, by sanctioning their claim, uphold a breach of her trust.
Booth's Appeal,
In Smithsonian Institution v. Meech,
There is no error.
In this opinion the other judges concurred.