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recover from his injuries. After a little HART, J. (after stating the facts as above). while he rallied and began to talk to his (1) Section 3666 of Kirby's Digest reads as children about the disposition of his proper- | follows: ty. He called over his farms by name, and “All declarations or creations of trusts or told which one he wanted each of his chil. I confidences of any lands or tenements shall be dren to have. He also spoke of the timber manifested and proven by some writing signed lands which he owned, and directed how by the party who is or shall be by law enabled they should be divided. He also directed to declare such trusts, or by his last will in how the corn and cotton, which was being writing, or else they shall be void; and all raised on his various farms that year, should

la grants and assignments of any trusts or confibe divided when gathered. He told them

| dences shall be in writing, signed by the party

granting or assigning the same, or by his last how to divide his horses and cattle, and the will in writing or else they shall be void.” money and other personal property which he possessed. He wanted his wife to keep Under this section all declarations of trust the home place and certain stock on it and which are not proved by some writing are $10,000 in money. His idea seemed to be void. But the court has repeatedly held that

vide up his property among his child the statute in question refers to express dren and to give his wife sufficient to live

trusts, and has no reference to what are on in comfort, so that she would not have

called trusts ex maleficio, which are a speto work any more, or be worried with look

cies of implied or constructive trusts, which ing after a lot of property.

equity impresses upon property in the hands On the next morning it was suggested that of one who has obtained it through fraud, he was too weak to be bothered with the in order to administer justice between the details of dividing his property, and that parties. Ammonette v. Black, 73 Ark. 310, he should make a will, leaving all his prop- | 83 S. W. 910; La Cotts v. La Cotts, 109 Ark. erty to his wife, and that she could divide it 335, 159 S. W. 1111; Spradling v. Spradling, after his death in accordance with the di- | 101 Ark. 451, 142 S. W. 848; McDonald v. rections which he had already given. Such a Tyner, 84 Ark. 189, 105 S. W. 74; Ussery v. will was executed on Friday morning. On

Ussery, 113 Ark. 36, 166 S. W. 916; Veasey v. their way home, the lawyers who had writ

Veasey, 110 Ark. 389, 162 S. W. 45; Hunter ten the will remembered that it was void

v. Field, 114 Ark. 128, 169 S. W. 813; Har

bour v. Harbour, 103 Ark. 273, 146 S. W. 867. under our statutes, because the children had

A clear statement of the rule that a trust not been mentioned in it. They returned

ex maleficio is not within the prohibition again on Saturday, and explained this defect

contained in a section of a statute of frauds to the parties interested. J. W. Stuart was

similar to our statute is made in Church v. better then, but executed another will, leav

Ruland, 64 Pa. 432. At that time that court ing all his property to his wife as in the

was composed of Thompson, C. J., and Agnew first one. He died on the following Friday,

and Sharswood, JJ., all being leamed and living only one week after executing the

able judges. Judge Sharswood delivered the first will. After his death his wife executed

opinion of the court, and in regard to the deeds to the various children and grand

question under consideration said: children to the improved farms, as had been directed by her husband in his lifetime; "Indeed, it is not easy to see how such a but she refused to execute a deed to her

trust ever could be made out, except by parol

evidence, and if this is not competent a statdaughters and her grandchildren to any of

ute made to prevent frauds would become a the timber lands, or to divide the personal

most potent instrument whereby to give them property equally between all the children.

success. That this doctrine is applied to cases She expressed her intention of holding the arising under wills, where a person procures a property absolutely and dividing it among devise to be made in his favor on the distinct her children as she liked. She denied that

declaration or promise that he will hold the she had received the property in trust, but

land in trust, either in whole or in part, for claimed it absolutely as her own under the

another, may be seen in the cases referred to

in 1 Jarman, 356, and 1 Story's Equity, 8 256. will. Hence this lawsuit. Other facts will | It is not affected by the statutory provisions be stated and referred to in the opinion. on the subject of wills. The proof offered is The chancellor found that the trust at

not of any alteration, revocation, or cancella

tion, which must be evidenced in a particular tempted to be established by the will was

manner. It gives full effect to the will; and void under our statute of frauds, and it was every word of it, and to the conclusiveness of decreed that the complaint of appellants the probate, where it is conclusive. It fastens should be dismissed for want of equity. The upon the conscience of the party, having thus case is here on appeal.

procured a will, and then fraudulently refusing

or neglecting to fulfill the promise on the faith Tom D. Patton, of Muskogee, Okl., and of which it was executed, a trust or confidence, Block & Kirsch and Huddleston, Fuhr &

which a court of equity will enforce by comFutrell, all of Paragould, for appellants.

pelling a conveyance when the proper time for

it has arrived; and with us in Pennsylvania Lamb & Frierson and Hawthorne & Haw- I such a conveyance will be considered as having thorne, all of Jonesboro, for appellees. | actually been made, whenever it ought to have

been made. The cestui que trust will be enti- It is well settled by the above authorities tled to recover in ejectment against the trustee, I that the parties seeking relief must estaband all in privity with him. This was decided | lish the trust by clear and satisfactory eviin Hoge v. Hoge, 1 Watts [Pa.) 163 (26 Am.

dence. It is equally well established by them Dec. 52], a case fully and ably argued and considered, both by the counsel engaged in the

that, while a promise is essential, it need cause and by the court, as appears in the elabo

not be expressly made, for actual co-operarate opinion by Chief Justice Gibson. It was tion or silent acquiescence may have the there held that if a testator be induced to make same effect as an express promise. Applying a devise, by the promise of the devisee that the principles of law above announced to it should be applied to the benefit of another, a the facts of this case, the question is whethtrust is thereby created which may be estab

tab. er or not appellants have established their lished by parol evidence, and that this is not

| case by clear and satisfactory evidence. contrary to the statute of wills. 'It is contended,' said Gibson, C. J., 'that parol evidence

It is contended by counsel for appellees of a trust is contrary to our statute of wills, that J. W. Stuart under the terms of his which corresponds, as far as regards the point will left his property absolutely to his wife, in dispute, with the British statute of frauds. and that, on account of his confidence in Undoubtedly every part of a will must be in her, he placed his whole property within her writing: and a naked parol declaration of trust | unlimited control. They point to the fact in respect of land devised is void. The trust insisted on here, however, owes its validity,

that this is not surprising, when it is connot to the will or the declaration of the testa

sidered that they had lived together 48 tor, but to the fraud of the devisee. It be- / years, and that she was the mother of his longs to a class in which the trust arises ex children, having the same interest with himmaleficio, and in which equity turns the fraud- self in making provision for their wants. ulent procurer of the legal title into a trustee They claim that there is nothing whatever to get at him; and there is nothing in reason

in her acts or conduct, either before or after or authority to forbid the raising of such a trust, from the surreptitious procurement of

the making of the will, that can be cona devise.' To the same effect is Jones y. Mc-| strued as a fraud upon the rights of appelKee, 3 Barr, 496 [45 Am. Dec. 661]; s. c. 6 | lants. It is true she did not solicit her hus. Barr, 425, a case the same in principle and band to make a will in her favor, but in devery similar in its facts to that presented upon ciding the question of fraud we must take this record."

into consideration the position, condition, and

relation of the parties at the time the will Other cases sustaining the rule are the

was executed. following: Ransdel v. Moore, 153 Ind. 393,

When told that there was no hope of him 53 N. E. 767, 53 L. R. A. 753; Owings' Case,

recovering from his injuries, J. W. Stuart 1 Bland (Md.) 370, 17 Am. Dec. 311; Gaither

at first broke down and wept. But he soon v. Gaither, 3 Md. Ch. 158; Williams v. Vree

recovered, and began to talk about how he land, 32 N. J. Eq. 734; Trustees of Amherst

wanted his property disposed of. He had College v. Thomas G. Ritch, 151 N. Y. 282,

talked at various times about making a will 45 N. E. 876, 37 L. R. A. 305; Gilpatrick

and disposing of his property, but had negv. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A.

lected to do so. His wife and children were 662, 10 Am. St. Rep. 215; Collins v. Hope,

around his bedside. He began to discuss the 20 Ohio, 492; Towles v. Burton, Rich. Eq. disposition of his property, and mentioned Cas. (S. C.) 146, 24 Am. Dec. 415; Richard- what improved farms he wanted his children son v. Adams, 10 Yerg. (Tenn.) 273; Brook and grandchildren to have. Ile then told v. Chappell, 34 Wis. 405; Robinson v. Lewis, how he wanted his timber lands divided, and 68 Miss. 69, 8 South. 258, 10 L, R. A. 101, 24 took up his personal property in detail, and Am. St. Rep. 256; Curdy v. Berton, 79 Cal. provided for a division of that. He recog. 420, 21 Pac. 858, 5 L. R. A. 189, 12 Am. St. nized that his wife had been a hard-working Rep. 157; Winder et al. v. Scholey et al., woman, and seemed to wish to give her such 83 Ohio St. 204, 93 N. E. 1098, 33 L. R. A. an amount of his property as would support (N. S.) 995, 21 Ann. Cas. 1379, and note; Cald- her comfortably, and would entail upon her well v. Caldwell, 7 Bush (Ky.) 517; Laird v. but little care and labor in looking after it. Vila, 93 Minn. 45, 100 N. W. 656, 106 Am. St. Hence he decided to give her the home place Rep. 420; Dowd v. Tucker, 41 Conn. 197; and sufficient personal property to stock it Ragsdale v. Ragsdale, 68 Miss. 92, 8 South. and some money. It was first thought that 315, 11 L. R. A. 316, 24 Am. St. Rep. 256; $4,000 would be sufficient, but upon the sugBenbrook v. Yancy, 96 Miss. 536, 51 South. gestion of his brother it was made $10.000. 461.

His mind continued to dwell upon a division [2, 3] So it may be said that in all such of his property until the next day, when he cases the right of relief is founded on fraud; was told by his son J. A. Stuart that he for, as said by Lord Eldon in Strickland v. was too weak to make a division of his propAldridge, 9 Ves. 516:

erty among his children, and that it would "The statute was never permitted to be a be best to make a will leaving all his prop. cover for fraud upon the private rights of in-erty to his wife, and that she could make dividuals."

| the division in accordance with the directions he had already given. His mind at have not attempted to set it out in detall. that time was necessarily greatly weakened There is little dispute among the witnesses, as the result of his injuries. He had been however, in regard to this point. accustomed for the past 8 or 10 years to re 1 [4] A careful consideration of the whole ly upon his son J. A. Stuart as to the legal record convinces us that it was established forms necessary to the transaction of his by clear and satisfactory evidence that J. business. He even signed all of his checks. W. Stuart was induced by the promise of his Under such circumstances it was natural wife, coupled with the suggestion of his that he would rely upon his son as to the son that a devise of all his property to her best method of disposing of his property in was a prudent plan in his weakened condihis weakened condition. He had already told tion of securing a division of all his prop. his children in the presence of his wife howerty among all his children. To hold otherhe wanted his property divided, and they wise would allow her to make a fraudulent all perfectly understood his wishes in the advantage of the weakness and necessities of matter. He was induced by the confidence her husband. It does not make any differhe had in his son and his wife to make a ence that she intended that the fraudulent will, in which he left all of his property to advantage secured should be for the benefit his wife and made his son his executor. of her son, instead of herself.

When asked in the course of the prepara (5) It is also contended that it was not tion of the will as to who should be named established by clear and satisfactory evi. as executor, he readily named his son J. A. dence that J. W. Stuart declared his intenStuart. When he was asked as to whether tion of dividing his money and other perhis son J. A. Stuart should give bond, he sonal property among all his children, infirst hesitated, and then said that it would cluding his grandchildren. There was tesbe fair to the other children to require him timony tending to show that he intended to to give bond. Both before and after the will divide his money and other personal propwas executed, he expressed confidence that erty between his living children; but we his wife and J. A. Stuart would carry out do not deem it necessary to comment at his wishes in the division of his property, length on the testimony in this respect. We and told his children that there was enough think it clear from all the evidence that property for all of them. He spoke of his the testator intended that his property grandchildren in the same connection, and should be divided among all his children, and repeatedly said a child was a child, mean that he intended that his grandchildren ing no matter whether it was a child of his should take the part which would have gone own or a child of his children. His wife to their deceased parents, had they been, was constantly at his bedside and acquiesced living. Both before and after he made his in the arrangement. She did not actively do will J. W. Stuart told his children, and other anything to induce her husband to make the friends and relatives who had gathered about will in her favor, but her acquiescence under him, that he had made his will and had the circumstances amounted to action. She made provision for all his children, that knew that her favorite son, J. A. Stuart, I there was enough property for all, and that first suggested the will, and that he was ex

a child was a child, meaning thereby whether tremely anxious that it should be made, even that child was living or dead. though the attending physicians at first ad- The decision of the chancellor seems to vised against the making of the will, and have proceeded upon the theory that the only consented that J. W. Stuart might make principles of law above announced are in conit, provided it was a short will, leaving all flict with our earlier decisions bearing on his property to his wife. After her hus- the question; and this is the contention of band's death, Mrs. Stuart in all things acted counsel for appellees. We do not think this upon the advice of her son J. A. Stuart. position is sound. We have carefully exShe prepared the deeds to the improved amined our previous decisions on the subject, farms in accordance with the directions of and find them to be in harmony with the her husband, and finally delivered them to views herein expressed, and the rule has been all the children, including the grandchildren, variously applied according to the facts in but took no further steps looking to a divi- each case. In McDonald v. Hooker, 57 Ark. sion of the property. J. A. Stuart, after 632, 22 S. W. 655, 23 S. W. 678, the court held his father's death, told his sisters that they that oral proof cannot be heard to ingraft an might induce his mother to make a will leav- express trust upon a deed absolute in terms. ing out the grandchildren in the disposition There a few days before his death the grantof the personal property. Subsequently he or, without consideration, conveyed his lands had a row with his sisters, and determined by deed to his son-in-law. He was not into leave them out in the division of the tim- duced to do so by any promise made by the ber lands. Mrs. Stuart acted throughout in son-in-law to hold the lands in trust for the conjunction with J, A. Stuart and in obedi-other heirs of the grantor, nor did he acence to his wishes, no matter what came up. knowledge or declare that he held the lands The testimony is very extensive, and we in trust for them. In Ammonette v. Black, 73 Ark. 310, 83 S. W. 910, a mother conveyed from the transaction. The court held that her lands to her son. The son by will left there was no testimony indicating that the the lands to a granddaughter of his mother husband induced the wife to have the deed and her daughter. A nephew brought suit, made to him by reason of a promise that he asking that a trust be declared in his favor. would convey the land to, or hold it for, her It was shown by him that the son, after as children. Thus it will be seen that the rule certaining that his mother intended to devise laid down in the present case was expressly the lands to her grandson, in order to frus- recognized by the court in that case. This trate her intentions, told her that wills were is shown by the dissenting opinion in that easily overthrown, and advised her that the case. The dissent was not based upon the best way to accomplish such a purpose was to fact that there was an implied or construcconvey the lands to him, and that he would ei. tive trust arising by operation of law by ther convey or devise the lands to his nephew, reason of the fraudulent conduct of the husher grandson. The court held that this tes- band in procuring a deed to be made to himtimony, standing alone, was sufficient to con. self or his wife's land by promising to hold stitute a trust ex maleficio. Relief was de the land for his wife's children by a former nied the plaintiff, however, on the ground husband, but the dissent was based upon the that the evidence introduced in his behalf ground that the facts created a resulting had been overcome by the evidence in behalf trust within the rule laid down in Leslie v. of the defendant. Thus it will be seen that Bell, 73 Ark. 338, 84 S. W. 491. this case clearly recognizes the rule we have In the case of Ussery v. Ussery, 113 Ark. laid down in the present case.

36, 166 S. W. 946, Foster conveyed 80 acres So, too, in McDonald v. Tyner, 84 Ark. of land to J. M. Ussery, who had married bis 189, 105 S. W. 74, the rule herein announced

w 74 the rule herein announced daughter, Stella. According to the testimony was expressly recognized. In that case a of Foster, no inducement was offered by Usguardian was short in his accounts with his

ort in his accounts with his sery for him to execute the deed, and he was wards and financially embarrassed in other not even present when the deed was executways. Two of the sureties on the guardian's ed. Mrs. Foster testified that there was an bond insisted upon his conveying his proper understanding that Ussery and his wife ty to the sureties to indemnify them, and he would move on the land and build a house on agreed to do so. One of the sureties had a it, and that she and her husband would move deed prepared conveying the property to him on an adjoining tract, so that they could be self, and said that he had purchased it from near each other. The court properly held the guardian after declining to take it in that her testimony was not sufficient to war.trust for the sureties. On the other hand, rant the trial court in declaring the exist the

guardian testified that there was no tence of a trust ex maleficio. change in the agreement, but only a change The views we have expressed herein were in the form of the transaction; that the recognized in Davis v. Sparks, 205 S. W. 803; deed was made by him to the surety to hold but the facts were found not to bring the case the property in trust for himself and the within the rule. other sureties. The court said that if it was It follows, from the views we have expressa sale, as contended by the surety, the evi-ed, that the decree must be reversed, and the dence justified it in being held in fraud of cause will be remanded for further proceedcreditors. The court further said that, if it ings in accordance with this opinion. was not a sale, then it was fraudulently ob- | taining a title in form of a sale to himself. SMITH, J. (concurring). I concur in the when in fact it was to be in trust for all the opinion in this case, because the widow is sureties on the guardian's bond; that this

seeking to enforce the will and has not, at being accomplished by fraud constituted him

any time, attempted to elect to take under the a trustee ex maleficio, instead of a trustee

statute, and not under the will. Here an of an express trust, and took the case out of estate worth possibly a quarter of a million the statute of frauds.

dollars and wholly a new acquisition has Again, in Spradling v. Spradling, 101 Ark,

been disposed of by a will which gave the 451, 142 S. W. 848, the land was inherited by

widow-an old woman—"sufficient to live on the wife from her father, and by agree

in comfort so that she would not have to ment upon the part of the wife, without any work any more or be worried with looking inducement on the part of her husband, in after a lot of property." the division of the land of her father among The lawmakers have wisely taken into achis heirs, a deed was made to her husband to count the emotions and considerations which her part of the land. The majority of the influence and sway human conduct, and have court held that the evidence showed that the given the wife the absolute right to elect to wife made a gift of the land to her husband take under the husband's will or to take unwithout any improper influence upon his der the statute, as if there were no will; part, and without any intention that he and, in order that opportunity for deliberate should hold for her benefit. In that case it reflection may be afforded, she is given 18 was claimed that a trust ex maleficio arose months after the death if her husband with

in which to decide. Section 2715, Kirby's “The trust springs from the intention of the Digest.

testator and the promise of the legatee. The Mrs. Stuart sat by the bedside of her hus- same rule applies to heirs and next of kin band and watched his life flow away. It was

who induce their ancestor or relative not to

make a will by promising, in case his property her chief concern to do what she could to as

falls to them through intestacy, to dispose of suage the expiring agony of him who had it. or of a part of it. in the manner indicated been her companion for 48 years, and the law | by him. Williams v. Fitch, 18 N. Y. 546; imposed on her no duty to remonstrate with Grant y. Bradstreet, 87 Me. 583 (33 Atl. 165]; her dying husband that she was not being | Gilpatrick v. Glidden, 81 Me. 137 (16 Atl. 464], given by the will what would otherwise be

2 L. R. A. 662 [10 Am. St. Rep. 245). The her share.

rule is founded on the principle that the legacy

would not have been given, or intestacy alThe husband cannot, by will, create a trust

lowed to ensue, unless the promise had been which disposes of property which, without | made; and hence the person promising is bound, the will, would go to the wife, and thereby in equity, to keep it, as to violate it would be deprive her of her rights under the law. It frand. While a promise is essential, it need not is immaterial, therefore, that she did not pro- | be expressly made, for active co-operation or test to her husband that he was depriving

silent acquiescence may have the same effect her of the interest in his estate which the

as 'an express promise. If a legatee knows

what the testator expects of him, and, having law would have given her in the absence of

an opportunity to speak, says nothing, it may the will. It would have been equally imma be equivalent to a promise, provided the testaterial if, instead of remaining silent, she had tor acts upon it. Whenever it appears that spoken, and had given her assent to the dis the testator was prevented from action by the position of the estate then proposed. Her

action or silence of a legatee, who knew the

facts in time to act or speak, he will not be right of election is absolute, and cannot be

permitted to apply the legacy to his own use defeated by any act of hers before the will when that would defeat the expectations of the becomes effective as such by the death of her testator. As was said by this court in the husband.

O'Hara Case, 95 N. Y. 403, 47 Am. Rep. 53: No doubt the trust could be enforced pro 'It matters little that McCue did not make in tanto, even though there had been an elec

words a formal and express promise. Everytion; but these questions passed out of the

thing that he said and everything that he did

was full of that interpretation. When the tes. case when the right of election expired, and,

tatrix was told that the legal effect of the will as that right no longer exists, I concur in

was such that the legatees could divert the the opinion and judgment of the court. fund to their own use, which was a statement

of their power, she was told also that she On Rehearing.

would only have their honor and conscience on

which to rely, and answered that she could HART, J. [6] It is strongly insisted by trust them, which was an assertion of their counsel in their argument on their motion on duty. Where in such case the legatee, even by rehearing that the opinion of the court is con silent acquiescence, encourages the testatrix trary to the rule laid down by Professor Pom

to make a bequest to him, to be by him ap

plied for the benefit of others, it has all the eroy and by the decisions of our own court.

force and effect of an express promise.' The They refer particularly to 3 Pomeroy's Equity

trust does not act directly upon the will by Jurisprudence (3d Ed.) 8 1054, and Ammo

modifying the gift, for the law requires wills nette v. Black, 73 Ark, 310, 83 S. W. 910. to be wholly in writing; but it acts upon the We do not agree with counsel in their con- gift itself, as it reaches the possession of the tention, but, on the other hand, think the legatee, or as soon as he is entitled to receive opinion is in exact accord with the rule laid it. The theory is that the will has full effect.

by passing an absolute legacy to the legatee, down. We recognize the rule to be that, in

and that then equity, in order to defeat fraud, order that the doctrine of trusts ex male

raises a trust in favor of those intended to be ficio with respect to land may be enforced benefited by the testator, and compels the legaunder any circumstances, there must be an tee, as a trustee ex maleficio, to turn over the element of positive fraud accompanying the gift to them. The law, not the will, fastens promise, and by means of which the acquisi

the trust upon the fund, by requiring the lega

tee to act in accordance with the instructions tion of the legal title is wrongfully consum

of the testator and his own promise. Neither mated. However, in the application of the

o of the the statute of frauds nor the statute of wills rule, it is well settled that if the testator is | applies, because the will takes effect as writinduced to make a will by a promise, express ten and proved; but, to promote justice and or implied, on the part of the legatee, that prevent wrong, the courts compel the legatee to he will devote his legacy to a certain lawful

dispose of his gift in accordance with equity trust, a secret trust is created, and equity

and good conscience." will compel him to apply property thus ob | It has been, also, said that the character tained in accordance with his promise. Trus- of the fraud which justifies the equitable tees of Amherst College v. Ritch, 151 N. Y. interference consists282, 45 N. E. 876, 37 L. R. A. 305, and cases in the attempt to take advantage of that which cited in our original opinion. In the last- has been done in performance or upon the faith mentioned case the court said:

of the agreement, while repudiating its obliga

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