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recover from his injuries. After a little
while he rallied and began to talk to his
children about the disposition of his proper-
ty. He called over his farms by name, and
told which one he wanted each of his chil-
dren to have. He also spoke of the timber
lands which he owned, and directed how
they should be divided. He also directed
how the corn and cotton, which was being
raised on his various farms that year, should
be divided when gathered. He told them
how to divide his horses and cattle, and the
money and other personal property which
he possessed. He wanted his wife to keep
the home place and certain stock on it and
$10,000 in money.
His idea seemed to be
to divide up his property among his chil-
dren and to give his wife sufficient to live
on in comfort, so that she would not have
to work any more, or be worried with
ing after a lot of property.

HART, J. (after stating the facts as above). [1] Section 3666 of Kirby's Digest reads as follows:

"All declarations or creations of trusts or confidences of any lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void; and all grants and assignments of any trusts or confidences shall be in writing, signed by the party granting or assigning the same, or by his last will in writing or else they shall be void."

Under this section all declarations of trust

which are not proved by some writing are void. But the court has repeatedly held that the statute in question refers to express trusts, and has no reference to what are called trusts ex maleficio, which are a spelook-cies of implied or constructive trusts, which equity impresses upon property in the hands of one who has obtained it through fraud, in order to administer justice between the parties. Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; La Cotts v. La Cotts, 109 Ark. 335, 159 S. W. 1111; Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848; McDonald v. Tyner, 84 Ark. 189, 105 S. W. 74; Ussery v. Ussery, 113 Ark. 36, 166 S. W. 946; Veasey v. Veasey, 110 Ark. 389, 162 S. W. 45; Hunter V. Field, 114 Ark. 128, 169 S. W. 813; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867.

On the next morning it was suggested that he was too weak to be bothered with the details of dividing his property, and that he should make a will, leaving all his property to his wife, and that she could divide it after his death in accordance with the directions which he had already given. Such a will was executed on Friday morning. On their way home, the lawyers who had written the will remembered that it was void under our statutes, because the children had not been mentioned in it. They returned again on Saturday, and explained this defect to the parties interested. J. W. Stuart was better then, but executed another will, leaving all his property to his wife as in the first one. He died on the following Friday, living only one week after executing the first will. After his death his wife executed deeds to the various children and grandchildren to the improved farms, as had been directed by her husband in his lifetime; but she refused to execute a deed to her daughters and her grandchildren to any of the timber lands, or to divide the personal property equally between all the children. She expressed her intention of holding the property absolutely and dividing it among her children as she liked. She denied that she had received the property in trust, but claimed it absolutely as her own under the will. Hence this lawsuit. Other facts will be stated and referred to in the opinion.

The chancellor found that the trust attempted to be established by the will was void under our statute of frauds, and it was decreed that the complaint of appellants should be dismissed for want of equity. The case is here on appeal.

Tom D. Patton, of Muskogee, Okl., and Block & Kirsch and Huddleston, Fuhr & Futrell, all of Paragould, for appellants.

Lamb & Frierson and Hawthorne & Hawthorne, all of Jonesboro, for appellees.

A clear statement of the rule that a trust

ex maleficio is not within the prohibition

contained in a section of a statute of frauds similar to our statute is made in Church v.

Ruland, 64 Pa. 432. At that time that court was composed of Thompson, C. J., and Agnew and Sharswood, JJ., all being learned and able judges. Judge Sharswood delivered the opinion of the court, and in regard to the question under consideration said:

"Indeed, it is not easy to see how such a trust ever could be made out, except by parol evidence, and if this is not competent a statute made to prevent frauds would become a most potent instrument whereby to give them success. That this doctrine is applied to cases arising under wills, where a person procures a devise to be made in his favor on the distinct declaration or promise that he will hold the land in trust, either in whole or in part, for another, may be seen in the cases referred to in 1 Jarman, 356, and 1 Story's Equity, § 256. It is not affected by the statutory provisions on the subject of wills. The proof offered is not of any alteration, revocation, or cancellation, which must be evidenced in a particular manner. It gives full effect to the will, and every word of it, and to the conclusiveness of the probate, where it is conclusive. It fastens upon the conscience of the party, having thus procured a will, and then fraudulently refusing or neglecting to fulfill the promise on the faith of which it was executed, a trust or confidence, which a court of equity will enforce by compelling a conveyance when the proper time for it has arrived; and with us in Pennsylvania such a conveyance will be considered as having 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, 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 estaber 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 of a trust is contrary to our statute of wills, which corresponds, as far as regards the point in dispute, with the British statute of frauds. Undoubtedly every part of a will must be in writing; and a naked parol declaration of trust in respect of land devised is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It be'longs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee to get at him; and there is nothing in reason or authority to forbid the raising of such a trust, from the surreptitious procurement of a devise.' To the same effect is Jones v. McKee, 3 Barr, 496 [45 Am. Dec. 661]; s. c. 6 Barr, 425, a case the same in principle and very similar in its facts to that presented upon this record."

Other cases sustaining the rule are the following: Ransdel v. Moore, 153 Ind. 393,

It is contended by counsel for appellees that J. W. Stuart under the terms of his will left his property absolutely to his wife, and that, on account of his confidence in her, he placed his whole property within her unlimited control. They point to the fact that this is not surprising, when it is considered that they had lived together 48 years, and that she was the mother of his children, having the same interest with himself in making provision for their wants. They claim that there is nothing whatever in her acts or conduct, either before or after the making of the will, that can be construed as a fraud upon the rights of appellants. It is true she did not solicit her husband to make a will in her favor, but in deciding the question of fraud we must take into consideration the position, condition, and relation of the parties at the time the will

was executed.

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 College v. Thomas G. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245; Collins v. Hope, 20 Ohio, 492; Towles v. Burton, Rich. Eq. Cas. (S. C.) 146, 24 Am. Dec. 415; Richardson v. Adams, 10 Yerg. (Tenn.) 273; Brook v. Chappell, 34 Wis. 405; Robinson v. Lewis, 68 Miss. 69, 8 South. 258, 10 L, R. A. 101, 24 Am. St. Rep. 256; Curdy v. Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. 189, 12 Am. St. Rep. 157; Winder et al. v. Scholey et al., 83 Ohio St. 204, 93 N. E. 1098, 33 L. R. A. (N. S.) 995, 21 Ann. Cas. 1379, and note; Caldwell v. Caldwell, 7 Bush (Ky.) 517; Laird v. Vila, 93 Minn. 45, 100 N. W. 656, 106 Am. St. Rep. 420; Dowd v. Tucker, 41 Conn. 197; Ragsdale v. Ragsdale, 68 Miss. 92, 8 South. 315, 11 L. R. A. 316, 24 Am. St. Rep. 256; Benbrook v. Yancy, 96 Miss. 536, 51 South. 461.

[2, 3] So it may be said that in all such cases the right of relief is founded on fraud; for, as said by Lord Eldon in Strickland v. Aldridge, 9 Ves. 516:

"The statute was never permitted to be a cover for fraud upon the private rights of individuals."

wanted his property disposed of. He had talked at various times about making a will and disposing of his property, but had neglected to do so. His wife and children were around his bedside. He began to discuss the disposition of his property, and mentioned what improved farms he wanted his children and grandchildren to have. He then told how he wanted his timber lands divided, and took up his personal property in detail, and provided for a division of that. He recog nized that his wife had been a hard-working woman, and seemed to wish to give her such an amount of his property as would support her comfortably, and would entail upon her but little care and labor in looking after it. Hence he decided to give her the home place and sufficient personal property to stock it and some money. It was first thought that $4,000 would be sufficient, but upon the suggestion of his brother it was made $10,000. His mind continued to dwell upon a division of his property until the next day, when he was told by his son J. A. Stuart that he was too weak to make a division of his property among his children, and that it would be best to make a will leaving all his property to his wife, and that she could make the division in accordance with the direc

tions he had already given. His mind at that time was necessarily greatly weakened as the result of his injuries. He had been accustomed for the past 8 or 10 years to rely upon his son J. A. Stuart as to the legal forms necessary to the transaction of his business. He even signed all of his checks. Under such circumstances it was natural that he would rely upon his son as to the best method of disposing of his property in his weakened condition. He had already told his children in the presence of his wife how he wanted his property divided, and they all perfectly understood his wishes in the matter. He was induced by the confidence he had in his son and his wife to make a will, in which he left all of his property to his wife and made his son his executor.

have not attempted to set it out in detail. There is little dispute among the witnesses, however, in regard to this point.

[4] A careful consideration of the whole record convinces us that it was established by clear and satisfactory evidence that J. W. Stuart was induced by the promise of his wife, coupled with the suggestion of his son that a devise of all his property to her was a prudent plan in his weakened condi tion of securing a division of all his prop erty among all his children. To hold otherwise would allow her to make a fraudulent advantage of the weakness and necessities of her husband. It does not make any difference that she intended that the fraudulent advantage secured should be for the benefit 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, there was enough property for all, and that first suggested the will, and that he was exa 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 advised against the making of the will, and only consented that J. W. Stuart might make it, provided it was a short will, leaving all his property to his wife. After her husband's death, Mrs. Stuart in all things acted upon the advice of her son J. A. Stuart. She prepared the deeds to the improved farms in accordance with the directions of her husband, and finally delivered them to all the children, including the grandchildren, but took no further steps looking to a division of the property. J. A. Stuart, after his father's death, told his sisters that they might induce his mother to make a will leaving out the grandchildren in the disposition of the personal property. Subsequently he had a row with his sisters, and determined to leave them out in the division of the timber lands. Mrs. Stuart acted throughout in conjunction with J, A. Stuart and in obedience to his wishes, no matter what came up. The testimony is very extensive, and we

The decision of the chancellor seems to have proceeded upon the theory that the principles of law above announced are in conflict with our earlier decisions bearing on the question; and this is the contention of counsel for appellees. We do not think this position is sound. We have carefully examined our previous decisions on the subject, and find them to be in harmony with the views herein expressed, and the rule has been variously applied according to the facts in each case. In McDonald v. Hooker, 57 Ark. 632, 22 S. W. 655, 23 S. W. 678, the court held that oral proof cannot be heard to ingraft an express trust upon a deed absolute in terms. There a few days before his death the grantor, without consideration, conveyed his lands by deed to his son-in-law. He was not induced to do so by any promise made by the son-in-law to hold the lands in trust for the other heirs of the grantor, nor did he acknowledge or declare that he held the lands in trust for them. In Ammonette v. Black,

there was no testimony indicating that the husband induced the wife to have the deed made to him by reason of a promise that he would convey the land to, or hold it for, her children. Thus it will be seen that the rule laid down in the present case was expressly recognized by the court in that case. This is shown by the dissenting opinion in that case. The dissent was not based upon the fact that there was an implied or constructive trust arising by operation of law by reason of the fraudulent conduct of the husband in procuring a deed to be made to himself or his wife's land by promising to hold the land for his wife's children by a former husband, but the dissent was based upon the ground that the facts created a resulting trust within the rule laid down in Leslie v. Bell, 73 Ark. 338, 84 S. W. 491.

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 the lands to a granddaughter of his mother and her daughter. A nephew brought suit, asking that a trust be declared in his favor. It was shown by him that the son, after ascertaining that his mother intended to devise the lands to her grandson, in order to frustrate her intentions, told her that wills were easily overthrown, and advised her that the best way to accomplish such a purpose was to convey the lands to him, and that he would either convey or devise the lands to his nephew, her grandson. The court held that this testimony, standing alone, was sufficient to constitute a trust ex maleficio. Relief was denied the plaintiff, however, on the ground that the evidence introduced in his behalf had been overcome by the evidence in behalf of the defendant. Thus it will be seen that this case clearly recognizes the rule we have laid down in the present case.

So, too, in McDonald v. Tyner, 84 Ark. 189, 105 S. W. 74, the rule herein announced was expressly recognized. In that case a guardian was short in his accounts with his wards and financially embarrassed in other ways. Two of the sureties on the guardian's bond insisted upon his conveying his property to the sureties to indemnify them, and he agreed to do so. One of the sureties had a deed prepared conveying the property to himself, and said that he had purchased it from the guardian after declining to take it in .trust for the sureties. On the other hand, the guardian testified that there was no change in the agreement, but only a change in the form of the transaction; that the deed was made by him to the surety to hold the property in trust for himself and the other sureties. The court said that if it was a sale, as contended by the surety, the evi- | dence justified it in being held in fraud of creditors. The court further said that, if it was not a sale, then it was fraudulently obtaining a title in form of a sale to himself, when in fact it was to be in trust for all the sureties on the guardian's bond; that this being accomplished by fraud constituted him a trustee ex maleficio, instead of a trustee of an express trust, and took the case out of the statute of frauds.

Again, in Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, the land was inherited by the wife from her father, and by agree ment upon the part of the wife, without any inducement on the part of her husband, in the division of the land of her father among his heirs, a deed was made to her husband to her part of the land. The majority of the court held that the evidence showed that the wife made a gift of the land to her husband without any improper influence upon his part, and without any intention that he should hold for her benefit. In that case it was claimed that a trust ex maleficio arose

In the case of Ussery v. Ussery, 113 Ark. 36, 166 S. W. 946, Foster conveyed 80 acres of land to J. M. Ussery, who had married his daughter, Stella. According to the testimony of Foster, no inducement was offered by Ussery for him to execute the deed, and he was not even present when the deed was executed. Mrs. Foster testified that there was an understanding that Ussery and his wife would move on the land and build a house on it, and that she and her husband would move on an adjoining tract, so that they could be near each other. The court properly held that her testimony was not sufficient to warrant the trial court in declaring the exis tence of a trust ex maleficio.

The views we have expressed herein were recognized in Davis v. Sparks, 205 S. W. 803; but the facts were found not to bring the case within the rule.

It follows, from the views we have expressed, that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion.

SMITH, J. (concurring). I concur in the opinion in this case, because the widow is seeking to enforce the will and has not, at any time, attempted to elect to take under the statute, and not under the will. Here an estate worth possibly a quarter of a million dollars and wholly a new acquisition has been disposed of by a will which gave the widow-an old woman-"sufficient to live on in comfort so that she would not have to work any more or be worried with looking after a lot of property."

The lawmakers have wisely taken into account the emotions and considerations which influence and sway human conduct, and have given the wife the absolute right to elect to take under the husband's will or to take under the statute, as if there were no will; and, in order that opportunity for deliberate reflection may be afforded, she is given 18 months after the death if her husband with

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The husband cannot, by will, create a trust which disposes of property which, without the will, would go to the wife, and thereby deprive her of her rights under the law. It is immaterial, therefore, that she did not protest to her husband that he was depriving her of the interest in his estate which the law would have given her in the absence of the will. It would have been equally immaterial if, instead of remaining silent, she had spoken, and had given her assent to the disposition of the estate then proposed. right of election is absolute, and cannot be defeated by any act of hers before the will becomes effective as such by the death of her husband.

Her

No doubt the trust could be enforced pro tanto, even though there had been an election; but these questions passed out of the case when the right of election expired, and, as that right no longer exists, I concur in the opinion and judgment of the court.

On Rehearing.

HART, J. [6] It is strongly insisted by counsel in their argument on their motion on rehearing that the opinion of the court is contrary to the rule laid down by Professor Pomeroy and by the decisions of our own court. They refer particularly to 3 Pomeroy's Equity Jurisprudence (3d Ed.) § 1054, and Ammonette v. Black, 73 Ark. 310, 83 S. W. 910. We do not agree with counsel in their contention, but, on the other hand, think the opinion is in exact accord with the rule laid down. We recognize the rule to be that, in order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated. However, in the application of the rule, it is well settled that if the testator is induced to make a will by a promise, express or implied, on the part of the legatee, that he will devote his legacy to a certain lawful trust, a secret trust is created, and equity will compel him to apply property thus obtained in accordance with his promise. Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305, and cases cited in our original opinion. In the lastmentioned case the court said:

"The trust springs from the intention of the testator and the promise of the legatee. The same rule applies to heirs and next of kin who induce their ancestor or relative not to falls to them through intestacy, to dispose of make a will by promising, in case his property it, or of a part of it, in the manner indicated by him. Williams v. Fitch, 18 N. Y. 546; Grant v. Bradstreet, 87 Me. 583 [33 Atl. 165]; Gilpatrick v. Glidden, 81 Me. 137 [16 Atl. 464], 2 L. R. A. 662 [10 Am. St. Rep. 245]. The rule is founded on the principle that the legacy would not have been given, or intestacy alowed to ensue, unless the promise had been made: and hence the person promising is bound, in equity, to keep it, as to violate it would be fraud. While a promise is essential, it need not be expressly made, for active co-operation or silent acquiescence may have the same effect what the testator expects of him, and, having as an express promise. If a legatee knows an opportunity to speak, says nothing, it may be equivalent to a promise, provided the testator acts upon it. Whenever it appears that the testator was prevented from action by the action or silence of a legatee, who knew the facts in time to act or speak, he will not be permitted to apply the legacy to his own use when that would defeat the expectations of the testator. As was said by this court in the O'Hara Case, 95 N. Y. 403, 47 Am. Rep. 53: 'It matters little that McCue did not make in words a formal and express promise. Everything that he said and everything that he did was full of that interpretation. When the testatrix was told that the legal effect of the will was such that the legatees could divert the fund to their own use, which was a statement of their power, she was told also that she would only have their honor and conscience on which to rely, and answered that she could trust them, which was an assertion of their duty. Where in such case the legatee, even by silent acquiescence, encourages the testatrix to make a bequest to him, to be by him applied for the benefit of others, it has all the force and effect of an express promise.' The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing; but it acts upon the gift itself, as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect, by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them. The law, not the will, fastens the trust upon the fund, by requiring the legatee to act in accordance with the instructions of the testator and his own promise. Neither the statute of frauds nor the statute of wills applies, because the will takes effect as written and proved; but, to promote justice and prevent wrong, the courts compel the legatee to dispose of his gift in accordance with equity and good conscience."

It has been, also, said that the character of the fraud which justifies the equitable interference consists―

"in the attempt to take advantage of that which has been done in performance or upon the faith of the agreement, while repudiating its obliga

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