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prevent the unjust enrichment of the legatee or devisee through his fraudulent retention of the legacy or devise in violation of his promise. 64

In Massachusetts, at least, it has been intimated by way of dictum that a constructive trust will be enforced even though the legacy or devise was expressly "upon a trust which is inconsistent with the secret trust.” 65

tort. Was there such a tort in the absence of an actual fraudulent intent on the part of the husband at the time when, by his conduct, he induced the testator to make the devise to the wife?

64 In O'Hara v. Dudley, supra, 413, 414, Finch, J., for the court, said:

“Equity acts in such case not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest is to perpetrate a fraud upon the devisor which equity will not endure. The authorities on this point are numerous. . . . All along the line of discussion (in the authorities) it was steadily claimed that a plain and unambiguous devise in a will could not be modified or cut down by extrinsic matter lying in parol, or unattested papers, and that the Statute of Frauds and that of wills excluded the evidence; and all along the line it was steadily answered that the devise was untouched, that it was not at all modified, that the property passed under it, but the law dealt with the holder for his fraud, and out of the facts raised a trust, ex maleficio, instead of resting upon one as created by the testator. The character of the fraud which justifies the equitable interference is well described in Glass v. Hulbert (102 Mass. 40; 3 Am. Rep. 418). It was said to consist ‘in the attempt to take advantage of that which has been done in performance or upon the faith of the agreement while repudiating its obligations under cover of the statute.'

Cf. Smith v. Attersoll, 1 Russ. 266 (1826) where the writing signed by the trustees and handed to the testator to evidence the trust was properly recognized as a valid declaration of trust, although it had not been proved as a testamentary paper.

The traditional attitude of courts of equity towards the Statute of Frauds and the Statute of Wills was expressed by Lord Westbury in McCormick v. Grogan, supra, p. 97, as follows:

"The Court of Equity has, from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside the Act of Parliament, but it fastens on the individual who gets a title under that Act and imposes upon him a personal obligation, because he applies the Act as an instrument for accomplishing a fraud. In this way the Court of Equity has dealt with the Statute of Frauds, and in this manner also it deals with the Statute of Wills."

“Fraud” in that passage should be interpreted to cover all unjust enrichment rectifiable in equity.

65 Ham v. Twombly, supra, 172. If the express trust is inconsistent with the secret trust, it would seem that the secret trust must be communicated to the express cestui que trust for it to serve as a basis for raising a constructive trust. Unless the conscience of the express cestui que trust is charged by a communication to him of the testator's secret trust wishes, his equitable interest, derived under the statute as to wills, cannot properly be taken from him. If his conscience is so charged a construc

Illegal promises. — If the legacy or devise induced by the promise is for an illegal purpose, as where the intended cestui que trust cannot take because of the Statutes of Mortmain, the legatee or devisee cannot keep for himself without being unjustly enriched and by the weight of authority must hold on a constructive trust for the next of kin, residuary legatee, heir, or residuary devisee,66 unless the latter is a party to the illegal arrangement.67

Where there is active solicitation, fraudulent intent at the time of promising, or a special confidential relationship. - In some jurisdictions it is only where the legatee or devisee is active in inducing

tive trust will be raised whether the testator's secret trust wishes were communicated to the express trustee or not.

66 Muckleston v. Brown, 6 Ves. Jr. 52 (1801); Strickland v. Aldridge, 9 Ves. Jr. 516 (1804); Edwards v. Pike, 1 Eden 687 (1759); Springett v. Jenings, L. R. 10 Eq. Cas. 488 (1870); Sweeting v. Sweeting, 10 Jur. N. S. 31 (1864); O'Hara v. Dudley, supra; Fairchild v. Edson, 154 N. Y. 199, 48 N. E. 541 (1897).

Cf. Gore v. Clarke, and Schultz's Appeal, in n. 56, ante.

In Jones v. Badley, L. R. 3 Eq. Cas. 635, L. R. 3 Ch. 362 (1876); Rowbotham v. Dunnett, L. R. 8 Ch. 430 (1878); and Flood o. Ryan, supra, no illegal trust was proved.

In Flood o. Ryan, supra, as there was no secret illegal trust, the fact that the devisee felt in conscience bound to apply the property as if there had been such a trust was deemed not to defeat the devise, since the statute raising the question of illegality applied only to devises to charity where the testator died within thirty days after making the will and did not forbid gifts to charities by devisees under such wills. One justice dissented.

In Stirk's Estate, 232 Pa. St. 98, 81 Atl. 187 (1911), the residuary estate was given on a secret trust in fraud of a charitable bequest statute, and the gift was simply declared void for fraud and the residuary estate directed to be distributed under the intestate laws of the state. In Edson v. Bartow, supra, a trust of part of the residue for the next of kin was declared.

In Hoffner's Estate, 161 Pa. St. 331, 343, 29 Atl. 33, 35 (1894), where a gift to a church made in a will executed within thirty days of the testatrix's death was upheld in equity, despite the statute making such gifts void, because it was shown that the gift was made in pursuance of a bequest to testatrix on a promise given by her to leave the legacy to the church, Dean, J., for the court, said:

“This money goes to the church, not by the will, but because there is no valid will, when there ought to have been one; it is a right of the church, for whose benefit the promise was made, to insist on the fulfillment of the obligation in a court of equity in whose hands is the fund and before whom are all parties in interest."

The possible claim of the residuary legatee or devisee is usually overlooked, because in the cases which have arisen the trust has seemingly related to either the whole property of the deceased or else to part or all of the residue as such. The residuary legatee's or devisee's rights are properly safeguarded in the statement from 1 Jarman on Wills, 6 Eng. ed., quoted in n. 92, post.

In Ford v. Dangerfield, 8 Rich. Eq. 95 (1856), the trust of the residue being illegal and there being no next of kin, the state took “by escheat.”

67 See Ham v. Twombly, supra.

the legacy or devise, i. e., coaxes the testator to give it on the assurance that his communicated wishes will be carried out, or intends at the time of the promise or assurance to repudiate it after testator's death, or is in a relation of special trust and confidence towards the testator, that he will be charged as trustee.68 The requirement of active solicitation before charging the legatee or devisee as trustee is apparently the adoption of the view that such solicitation constitutes undue influence which will not make the legacy or devise void, but will justify equity in enforcing a trust against the wielder of the undue influence. The same idea seems to be back of the view that if a relation of special trust and confidence exists between the testator and the legatee or devisee, a constructive trust should be enforced.69 Indeed, in these cases, as in the fraudulent-intent cases, some jurisdictions seem to proceed on the idea that if there is active solicitation, or breach of confidential relation, or intent at the time of promising not to perform the promise, equity, to prevent fraud, enforces the express oral trust rather than a constructive trust, just as in the part performance of oral contracts for the sale of land cases equity regards itself as enforcing the express oral contract. That equity may en

68 See Moran v. Moran, 104 Ia. 216, 73 N. W. 617 (1897); Evans v. Moore, 247 Ill. 60, 93 N. E. 118 (1910); Sprinkle v. Hayworth, 26 Gratt. (Va.) 384 (1875); Tennant v. Tennant, 43 W. Va. 547, 27 S. E. 334 (1897). Cf. Collins v. Hope, 20 0. St. 493 (1851), but as to the Ohio rule to-day see Winder v. Scholey, supra. In Evans v. Moore, supra, the absence of a fraudulent intent on the part of the promisor at the time of making the promise prevented the enforcement of a trust, but equitable relief was given for other reasons.

69 The undue-influence idea is more clearly developed in the deed on oral trust cases than in the will cases. In Noble v. Noble, 255 III. 629, 635, 99 N. E. 631, 633 (1912), in enforcing a trust because a grantee who took on an oral trust violated a confidential relationship in retaining the property for himself in breach of trust, the court said:

“The term ‘fiduciary and confidential relation' is a comprehensive one and sa breach of the relation] exists whenever influence has been acquired and abused or confidence has been reposed and betrayed.”

That is almost word for word the language used in Leonard v. Burtle, 226 Ill. 422, 431, 80 N. E. 992, 996 (1907), where, in considering whether a will was executed as the result of undue influence, Wilkin, J., for the court, said:

“What constitutes undue influence depends upon the circumstances of each case. To make a good will a person must be a free agent. But all influences are not unlawful. The doctrine of equity, however, concerning undue influence is broad, and it will reach every case and grant relief where influence is acquired and abused and confidence is. reposed and betrayed.”

force against the legatee or devisee the express oral trust, as such, under any circumstances, would seem to be an indefensible proposition, for the express-trust provisions and the will provisions of the Statute of Frauds and the provisions of subsequent statutes about wills were meant to bind equity judges; but, on the other hand, to say that equity should enforce a constructive trust only if there is active solicitation, a special confidential relation, or actual fraudulent intent at the time of the promise, is unduly to limit the constructive-trust jurisdiction and to give too great encouragement to dishonesty. It is the fact that the legacy or devise was given wholly because of testator's reliance on the legatee's or devisee's promise, and not the solicitation or other activity of the legatee or devisee, that is the important element for equity's consideration prior to the legatee's or devisee's repudiation of promise.70 As for a special relation of trust and confidence, what better evidence of one could there be than that the testator, confiding in the promise of the legatee or devisee, made him the gift? Every case of a deed on an oral trust or promise relied on, or of a will on an oral trust or promise relied on, is on principle a case of a relation of special trust and confidence between the grantor and grantee or between the testator and the legatee or devisee. 71 Fraudulent intent at the time of the promise has no bearing on the problem save as showing a legal tort as well as a breach of promise, for the legal tort is not needed to enable equity to act. Equity cares not for mere form, and it should not care whether the unjust enrichment of the defendant through retention of the property in violation of his promise, which properly constitutes an equitable tort, 72 is aggravated by a legal tort or not. Accordingly, in most jurisdictions, the fraudulent intent at the time feature may be ignored,13 except in so far as the presence of a legal tort enables us to confirm our view that the trust should be enforced in favor of the intended cestui que trust.74

70 Accordingly, in Benbrook v. Yancy, supra, where the devisee did nothing that was active to induce the devise to her, and yet but for her promise the devise would not have been made, the court enforced a trust, although in the earlier case of Ragsdale v. Ragsdale, 68 Miss. 92, 8 So. 315 (1890), stress had been laid on the fact of activity as a constructive-trust element in these will cases.

In Gilpatrick v. Glidden, supra, 151, Virgin, J., for the court, said:

“Equity does not interfere with the will. That remains unchallenged. Nor does it assume to set aside the Statute of Frauds which the defendants invoke. But on account of her (the devisee's] conduct in procuring the legal title to herself, equity does declare that she cannot conscientiously hold it or its proceeds for her own exclusive benefit. ...

“We do not mean, however, that it is essential to the upholding of such a trust that a devisee should have been an active agent in procuring the devise to be made in his favor, for the great current of English authority during the last two centuries, as well as that of this country, holds that, if either before or after the making of the will, the testator makes known to the devisee his desire that the property shall be disposed of in a certain legal manner other than that mentioned in the will, and that he relies upon the devisee to carry it into effect; and the latter by any words or acts calculated to, and which he knows do in fact cause the testator to believe that the devisee fully assents thereto and in consequence thereof the devise is made, but after the decease of the testator the devisee refuses to perform his agreement, equity will decree a trust and convert the devisee into a trustee, whether, when he gave his assent he intended a fraud or not, the final refusal having the effect of consummating the fraud.”

It would seem, then, that active solicitation of the testator by the legatee or devisee in inducing the devise is not needed to enable equity to declare a trust; that a special relation of trust and confidence other than that constituted by the trust and confidence actually reposed is also not necessary; and that a fraudulent intent

71 In an anonymous article on “Equity and the Statute of Frauds,” in 21 Bench and Bar 61, at p. 65, it is said of conveyances of oral trusts or promises to convey:

“The confidential relation has been referred to merely to show the abuse of trust which would result if the defendant were permitted to retain the property. But when one person parts with his property to another on the latter's promise to reconvey, he certainly trusts that other or he never would do what he did; and equity, it seems to us, should protect the trust regardless of the exact relations of the parties.”

72 It is called an equitable tort simply because equity has a different estimate of what constitutes fraud from that entertained by the common-law courts. Similarly we have the phrase "equitable waste" just because equity judges construed the words "without impeachment of waste” in a different way than the law courts did.

73 McCormick v. Grogan, supra (semble); Curdy v. Berton, 79 Cal. 420, 21 Pac. 858 (1889) (semble); General Convention v. Smith, 52 Ind. App. 136, 100 N. E. 384 (1913) (semble); Chapman's Ex’r v. Chapman, supra; Gilpatrick v. Glidden, supra; Bailey v. Wood, 211 Mass. 37, 97 N. E. 902 (1912) (semble); Benbrook v. Yancy, supra; Smullin v. Wharton, supra; Yearance v. Powell, supra; Powell v. Yearance, supra; Winder v. Scholey, supra; Blick v. Cockins, supra (semble).

But contra see cases in note 68, ante.

74 "If a devisee fraudulently induces the devise to himself, intending to keep the property in disregard of his promise to the testator to convey it or hold it for the benefit of a third person, and then refuses to recognize the claims of the third person, he is guilty of a tort, and equity may and does compel the devisee to make specific reparation for the tort by a conveyance to the intended beneficiary. If, on the other hand, the devisee has acquired the property with the intention of fulfilling his promise, but afterwards decides to break it, relying on the statute as a defense, he commits no tort, but a purely passive breach of contract.” Ames, Lectures in Legal History, 430-431. See same passage in 20 HARv. L. Rev. 549, 554.

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