at the time of the promise is no more important than fraudulent intent at the time for performance.75

Some unsettled questions. There are some unsettled problems as to what constitutes communication; as, for instance, whether there would be communication if the testator should mail to the legatee or devisee a letter expressing his intentions and die before its receipt, or should hand a letter of instructions to the legatee or devisee and die before it was read; as, for instance, where the testator should instruct the legatee or devisee, who did not know the letter's contents, not to open the letter handed to him until after the testator's death. Probably in neither of the supposititious cases should there be deemed to have been communication.76

75 “Trust[s], in cases of this character, are impressed on the ground of fraud, actual or constructive, and the basis or ground upon which fraud is imputed is that of holding the estate of the testator against conscience. It is not based necessarily on any imputation of fraud, or intention to defraud, at the time of making the promise, but of afterwards holding or attempting to hold the estate, as if the promise, on which the estate was received in its original condition, had not been made. The fraud consists in holding, or attempting to hold, the estate free from the effect or obligation of a promise, subject to which it was intended to be devised and received and which it is obligatory in conscience to carry out. Where the estate or interest therein is thus received by the person who made the promise, the attempt to hold the estate without performing the promise is an actual fraud, for the reason that the recipient, having actually made the promise, knows personally of the obligation and is guilty of actual fraud in holding, or attempting to hold, the estate without performing the promise, so far as his interest in the estate extends. As to such promisor, it is clearly not a question of modifying or cutting down plain and ambiguous devises in a will, by parol evidence or unattested papers, in violation of the Statute of Frauds or of Wills, for the devise to the promisor is not modified, but he is dealt with as a holder by fraud of property under the will, and a trust ex maleficio is raised from these facts." Emery, V. C., in Powell v. Yearance, supra, 126.

"It is conceded that in cases of actual intentional fraud equity will raise a trust, notwithstanding the Statute of Frauds or the Statute of Wills. In equity what difference can there be whether the fraudulent intention existed at the time the testator acted or not until it was time for the devisee to act? In either case the testator acted upon the faith that the devisee would keep his promise; the result of his refusal or failure to do so is the same in either case and equally fraudulent." Summers, C. J., in Winder v. Scholey, supra, 216.

Compare Bailey v. Wood, supra, 43, where Braley, J., for the court, said:

"The transaction may be none the less fraudulent in a court of equity, where the sole heir at law induces the ancestor to die intestate, honestly intending at the time to comply with his requests as to distribution of the estate, but upon receiving the inheritance changes his mind, and in disregard of his express promise deliberately appropriates the property to his own use."

76 In In re Boyes, supra, 536, Kay, J., said:

"If the trust was not declared when the will was made, it is essential, in order to

Another unsettled question is whether information of testator's intentions given in testator's lifetime must be authorized by the testator to be given to the legatee or devisee for the latter to be bound.77 The chances are that it will receive a solution similar to that stated in the revocation of offer of contract cases, where, by a

make it binding, that it should be communicated to the devisee or legatee in the testator's lifetime and that he should accept that particular trust. It may possibly be that he would be bound if the trust had been put in writing and placed in his hands in a sealed envelope, and he had engaged that he would hold the property given to him by the will upon the trust so declared, although he did not know the actual terms of the trust; McCormick v. Grogan, L. R. 4 H. L. 82. But the reason is that it must be assumed if he had not so accepted the will would be revoked." Cf. Morrison v. McFerran, [1901] 1 Ir. R. 360, where the legatee at testator's request signed a promise to pay legacies without knowing what the contents of the paper were other than that they related to the estate, but later the testator told the legatee about some of the payments which were to be made. The legatee was deemed a trustee as regards those payments only about which the testator told her his wishes.

In In re Shields, [1912] 1 Ch. 591, a testator who had provided a legacy of £300 for his housekeeper in his previously executed will drew a check for £300 and wrote a letter to the housekeeper which instructed her to "tell my executors that this is instead of the £300 left you in my will." Without telling the housekeeper what the letter and the check were, the testator, in her presence, sealed them up in an envelope and placed them in a drawer and told her to open the envelope on his death. Later he opened the envelope and took out the check and put the letter in another envelope and told her to keep it and open it on his death. Later he deposited £300 in bank to a joint account in the names of himself and the housekeeper with power to either to draw. On his death the questions arose whether the housekeeper was entitled to the £300 on deposit and whether she was entitled also to the £300 legacy. The court held that the £300 on deposit was the housekeeper's by a good gift inter vivos; that the contents of the letter instructing the housekeeper to tell the executors that the £300 was instead of the legacy were not communicated to her; and that in consequence there was no "ademption," i. e., satisfaction, of the legacy, and accordingly she could keep the £300 and yet claim the legacy. The same theory of what constitutes communication should apply in the constructive-trust cases as was applied in this socalled "ademption" case.

77 In Moss v. Cooper, 1 J. & H. 352, 370, 371 (1861), Vice-Chancellor Sir W. Page Wood said:

"When you prove that the testator desired to create a trust, and that this desire was communicated to the legatee by one who had acted as the testator's agent in the preparation of the will, you have primâ facie evidence that the communication was made by the testator's direction. It is not necessary, for the purpose of my decision, to consider what the court ought to do in a case where the testator is proved to have had a particular wish, and that wish is proved to have been communicated to the legatee without the sanction or authority of the testator. That question does not in my opinion arise here, and when it does arise, it may require some consideration, what would be the result if the legatee, after receiving this unauthorized information, abstains from making any communication to the testator as to his acceptance or refusal of the trusts. That will be an entirely new case."

departure from principle, it is said that knowledge of the offerer's inconsistent action in disposing of the offered property to others, even though such knowledge is derived from third persons not authorized to impart it, has the same effect as if those persons were authorized.78

Tacit promises. If what is to be regarded as communication takes place, then a trust will be enforced even though the legatee or devisee did not expressly promise to carry out testator's wishes, but only tacitly did so,79 provided a bind

78 Dickinson v. Dodds, L. R. 2 Ch. D. 463 (1876); Coleman v. Applegarth, 68 Md. 21, 11 Atl. 284 (1887); Frank v. Stratford-Handcock, 13 Wyo. 37, 77 Pac. 134 (1904); Watters v. Lincoln, 29 So. Dak. 98, 135 N. W. 712 (1912).

79 In Amherst College v. Ritch, supra, 324, 325, Vann, J., for the court, said: "While a promise is essential it need not be expressly made, for active coöperation or silent acquiescence may have the same effect as an express promise. If a legatee knows what the testator expects of him, and, having 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, supra [95 N. Y. 403]: '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 cases 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.' . . . As was well said in Wallgrave v. Tebbs, supra [2 K. & J. 321]:

666

'Where a person knowing that a testator, in making a disposition in his favor, intends it to be applied for purposes other than his own benefit, either expressly promises or by silence implies that he will carry the testator's intention into effect, and the property is left to him upon the faith of the promise or undertaking, it is in effect a case of trust; . . .”

See also Russell v. Jackson, 10 Hare 204 (1852); Tee v. Ferris, 2 K. & J. 357 (1856); Jones v. Badley, supra; Springett v. Jenings, supra; Moss v. Cooper, supra; Edson v. Bartow, supra; Stirks' Estate, supra; Washington's Estate, supra.

In Mead v. Robertson, supra, where the court refused to find decedent's half-sister and only heir a trustee because, when she was in an adjoining room and may or may not have heard and when neither she nor decedent understood that her consent or refusal was necessary, her husband promised decedent that his wishes would be carried out, the court, by Ellison, J., said that fraud is the base of the action, since the action's object is "to arrest the consummation of a fraud. . . . Therefore since a wilfully broken promise, made in aid of the promisee's definite intention which thwarts such intention and prevents other action, is a fraud, equity affords relief to the bene

ing obligation to perform was intended and not a mere moral obligation.80

Where the legatee or devisee promises the testator to hold for or to pay or convey to others whose names are communicated to him in the testator's lifetime and the express or tacit promise made prevents the revocation or modification of the legacy or devise. - We have seen that, if a legacy or devise is induced by the promise of the legatee or devisee to carry out the testator's wishes expressed in a form not meeting the statutory requirements for wills, but communicated to the legatee or devisee in the testator's lifetime, a constructive trust will be enforced. By the overwhelming weight of authority a trust will be enforced where the original insertion in the will of legacy or devise was not induced by the promise, but where, after the will was executed, the testator communicated to the legatee or devisee his instructions that the latter should hold for the benefit of persons named and received his express or tacit assent to do so, and in reliance thereon refrained from revoking the gift to the legatee or

ficiaries of the promise. There must not only be an expressed intention, but there musc be a promise made to carry out such intention; otherwise there would be no breach of promise and consequently no fraud by the promisor." (110 S. W., at p. 1096.) The court admitted that "Proof of a promise on the part of the heir or devisee need not be that it was expressly made. The proof may consist in the silence of the promisor on hearing the declaration of the deceased's intentions" (p. 1097), but it considered that no silence could count as a promise unless speech was expected by the one party or reasonably to be deemed expected by the other. While the court could have put its decision on the ground that the testator would not have made a will anyhow, it put it solely on the ground that no promise was intended to be exacted from and none was actually or tacitly given by the heir. Cf. Lomax v. Ripley, 3 Sm. & Giff. 48 (1854). 80 In Amherst College v. Ritch, supra, 323, Vann, J., for the court, said: "While a testator may make a gift to a legatee solely for the purpose of enabling him, if he sees fit, to dispose of it in a particular way, still, if there is no promise by him, either express or implied, to so dispose of it, and the matter is left wholly to his will and discretion, no secret trust is created, and he may, if he chooses, apply the legacy to his own use. When it clearly appears that no trust was intended, even if it is equally clear that the testator expected that the gift would be applied in accordance with his known wishes, the legatee, if he had made no promise and none has been made in his behalf, takes an absolute title and can do what he pleases with the gift. Whatever moral obligation there may be, no legal obligation rests upon him." See Lomax v. Ripley, supra; Rowbotham v. Dunnett, supra; O'Donnell v. Murphy, 13 Cal. App. 728, 120 Pac. 1076 (1911).

In Creagh v. Murphy, Ir. R., 7 Eq. 182 (1873), the testatrix told the legatee her wishes but left what was to be paid by him to any one to his discretion. As he had exercised his discretion by making some payments, it was held that no trust would be enforced. But see Jones v. Nabbs, Gilb. Eq. 146 (1718).

devisee.81 In at least one jurisdiction, however, the line seems to be drawn between inducing a will in one's favor by a promise, which action is there deemed to justify raising a constructive trust,82 and preventing by an oral promise the revocation of a legacy or devise, which action is there held not to justify raising a trust.83 Also, in England, where less than all of several, who take

81 Reech v. Kennegal, 1 Ves. 123 (1748); Barrow v. Greenough, 3 Ves. Jr. 152 (1769); Chamberlaine v. Chamberlaine, 2 Freem. Ch. 34 (1678); Tee v. Ferris, supra; Moss v. Cooper, supra (semble); Norris v. Frazer, L. R. 15 Eq. Cas. 318 (1873); In re Maddock, supra; Attorney-General v. Cullen, 14 Ir. C. L. R. 137 (1863); (aff'd Cullen v. Attorney-General L. R. 1 H. L. 190 (1866)); In re King's Estate, supra; DeLaurencel v. DeBoom, 48 Cal. 581 (1874); Dowd v. Tucker, 41 Conn. 197 (1874); Gaither v. Gaither, 3 Md. Ch. 158 (1851) (semble); Ragsdale v. Ragsdale, supra; Belknap v. Tillotson, 82 N. J. Eq. 271, 88 Atl. 841 (1913); Carver v. Todd, 48 N. J. Eq. 102, 21 Atl. 943 (1891); Rutherfurd v. Carpenter, 119 N. Y. Supp. 790 (1909); Hoffner's Estate, supra; Richardson v. Adams, 10 Yerg. (Tenn.) 273 (1837); Brook v. Chappell, 34 Wis. 405 (1874). Cf. Wekett v. Raby, 3 Bro. Parl. Cas. 16 (1724); Van Houten v. Stevenson, 74 N. J. Eq. 1, 77 Atl. 612 (1907); Sims v. Walker, 8 Humph. (Tenn.) 503 (1847).

For cases where it is not clear whether the promise was before or after the making of the will, see Nab v. Nab, supra; Oldham v. Litchfield, supra; French v. French, supra; Shields v. McAuley, supra; Hughes v. Bent, supra; McAuley's Estate, supra; Washington's Estate, supra.

In French v. French, supra, 230, Lord Davey in his concurring opinion said:

"My Lords, it is said that this jurisdiction is based upon fraud, and so it is because if you once get to this, that it is a trust which is imposed upon the conscience of the legatee, then if the legatee betrays the confidence in reliance upon which the bequest was made to him, then it is what I should think everybody would consider a fraud, though I take the liberty to say that the moral turpitude of any particular case must vary infinitely according to the circumstances of the particular case. My Lords, the basis of it is, of course, that the testator has died, leaving the property by his will in a particular manner, on the faith and reliance upon an express or implied promise by the legatee to fulfill his wishes, and your Lordships will at once see that it makes no difference whatever whether the will be made before the communication to the legatee or afterwards, because, as was said, I think by Vice-Chancellor Turner, in one of the cases which were cited, the presumption is that the testator would have revoked his will and made another disposition if he had not relied upon the promise, express or implied, made by the legatee to fulfill his wishes."

82 Blick v. Cockins, supra. Cf. Miller v. Cockins, 239 Pa. St. 538 (1913).

83 Fox v. Fox, 88 Pa. St. 19 (1878); McCloskey v. McCloskey, 205 Pa. St. 491, 55 Atl. 180 (1903). In McCloskey v. McCloskey, supra, a father, after making his will in favor of his wife for life and after her death for his daughters, told the daughters that they were to hold for themselves and their three brothers equally, and they agreed to do so. After the father's death the daughters refused to perform, and it was held that their refusal to perform was not such misconduct as to raise a trust. Brown, J., for the court, said (p. 496):

"Where an absolute devise is procured through the promise of a devisee that he will hold it for such uses and purposes or for such beneficiaries as the testator may desig