CONSTRUCTIVE TRUSTS BASED ON PROMISES [Continued] B. THE AUTHORITIES WHERE the existence of unattested directions by testator is not communicated to the legatee or devisee in the testator's lifetime. It is perfectly clear that where a legatee or devisee takes by the terms of the will absolutely, but a document not attested as a will, and not incorporated into the will, is found with the will, or in some other way is brought to the attention of the legatee or devisee for the first time after the testator's death, and discloses the intention of the testator that the devisee or legatee should not hold absolutely but in trust, chancery will not make the legatee or devisee hold as trustee.56 "Such a memorandum may or may not influence him as a man of honor, but no legal effect can be given to it." 57 The legatee or devisee could not be made to hold in trust 56 Schultz's Appeal, 80 Pa. St. 396 (1876); Juniper v. Batchelor, [1868] W. N. 197; Ames, Cases on Trusts, 2 ed., 189. See Scott v. Brownrigg, 9 L. R. Ir. 246 (1881); In re Boyes, L. R. 26 Ch. D. 531 (1884); Bryan v. Bigelow, 77 Conn. 604, 60 Atl. 266 (1905). Cf. Hodnett's Estate, 154 Pa. St. 485, 26 Atl. 623 (1893); Flood v. Ryan, 220 Pa. St. 450, 69 Atl. 908 (1908). But in Gore v. Clarke, 37 S. C. 537, 16 S. E. 614 (1892), where a bequest was made to a stranger with intent on the testator's part to evade the state bastardy statute by having the stranger hold for testator's mistress and bastard children more property than the statute permitted him to give them as against his wife and lawful children, it was held that the stranger must hold in trust for the wife and lawful children, despite the fact that he was not informed before testator's death of any secret trust attached to the bequest. Pope, J., for the court, said of the legatee (p. 550): "If he should disregard this palpable intention of his benefactor, he would be lost to all shame. If he should regard it and execute it, he thus contravenes the positive laws of his country forbidding such a course. Under our view of the law, he shall not be required to elect either course." Schultz's Appeal, supra, which is contra, seems a sounder decision. It allowed the legatee to keep free from any trust as he was "entirely innocent of any complicity in the fraud of the testator." 57 Cozens-Hardy, L. J., in In re Maddock, [1902] 2 Ch. 220, 230. Cf. Flood v. Ryan, supra. for the intended cestui que trust, because the statute governing wills makes it impossible to ascertain against the objection of the legatee or devisee, by competent evidence, who he is, since to let the document name him would be to give it, though unattested as required of wills, the effect of a will; and the legatee or devisee could not be held to be a trustee for the next of kin, residuary legatee, heir, or residuary devisee, without a finding that he was intended to be trustee, and the statute governing wills makes that finding impossible, against his objection, for want of competent evidence of such intent. Since he has taken in ignorance of the testator's intentions, and since those intentions have not been evidenced in the manner required by the statute about wills, chancery says that he may do as he pleases with the legacy or devise.58 Where the legatee or devisee promises the testator to hold for or to pay or convey to others whose names are not communicated to him in the testator's lifetime. -It is also well settled that a legatee or devisee, who by the provisions of the will is to take absolutely, cannot be compelled to hold in trust for intended cestuis que trust merely because he promised the testator that he would hold for the benefit of persons to be named later by the testator. A document signed by the testator and containing the names of the persons and the terms of the secret trust, but not attested as a will and not communicated to the legatee or devisee in the testator's lifetime, cannot be enforced as a document without violating the statute governing wills.5 But that does not mean that the legatee or devisee may hold for himself free from any trust. Since he agreed to take only as trustee, and thereby either induced the making of the devise or legacy to himself or, if the will containing it was already in existence at the time of the promise, secured its continuance without revocation or qualification, he cannot on principle be allowed to hold for 59 58 In In re Pitt Rivers, [1902] 1 Ch. 403, Vaughan Williams, L. J., said (p. 407): "It has been discussed very often what are the essentials which are necessary in order to induce the courts to give effect to a trust which has not been expressed in the way in which the Wills Act requires that testamentary intentions should be expressed. . . . I suppose one may state shortly and concisely that the court never gives the go-by, if I may use the expression, to the provisions of the Wills Act by enforcing upon any one testamentary intentions which have not been expressed in the shape and form required by that Act, except for the prevention of fraud. That is the only ground upon which it can be done." 59 In re Boyes, supra. Cf. McCormick v. Grogan, L. R. 4 H. L. 82 (1869); In re King's Estate, L. R. 21 Ir. Ch. 273 (1888). himself, for that would be unjust enrichment such as equity cannot properly tolerate. While chancery could make him hold for the intended cestui que trust, since chancery, if it wants to, can select as its constructive cestui que trust anyone who ought to fill that position, the chancellors have so far felt that to select the intended cestui que trust in this kind of a case would be to go contrary to the intent of the statute governing wills. Accordingly, in most jurisdictions, the legatee or devisee will be made to hold in trust for the next of kin, residuary legatee, heir, or residuary devisee.60 In some jurisdictions, however, he will be allowed to keep for himself, if he did not solicit the legacy or devise, if he made his promise in good faith, and if his action is not in violation of a special confidential relationship.61 It would seem that since he is compelled to hold in trust for anybody only because he promised as he did, and because he cannot be allowed to be enriched by a breach of that promise, he should be allowed to hold for the intended cestuis que trust if he so prefers. This view does not ignore the policy of the statute regarding wills, but recognizes the truth that there can properly be no constructive trust at all if the legatee or devisee carries out the testator's wishes, for he is then not unjustly or at all enriched.62 It is quite sound to say that the legatee or de 60 In re Boyes, supra. Cf. Thayer v. Wellington, 9 Allen (Mass.) 283 (1864). Such a trust has usually been applied by testators to the whole estate, or to the residue, and hence there has been no chance for a residuary legatee to claim against the next of kin or for a residuary devisee to claim against the heir. The wording of the residuary clause, and the attitude of the given jurisdictions on lapsed and void legacies and devises, would be factors in determining any conflicting claims. That the residuary legatee or devisee must be reckoned with when a proper occasion arises is recognized in the sentence from Jarman on Wills, quoted in n. 91, post. 61 See cases in n. 68, post. 62 See n. 42, 43, and 45, ante. No court seems yet to have taken such advanced ground, but in reference to an analogous supposititious situation, that of a devise expressly "in trust" but the trust not being stated in the will and not being communicated to the trustee in the testator's lifetime, an English judge has recently stated that apart from authority he sees no reason why a trust for the intended cestui que trust should not be enforced if the testator communicated his intentions to some one. See Eve J., in In re Gardom, Le Page v. Attorney-General, [1914] 1 Ch. 662, 672-3. His statement in regard to that point will be found quoted in n. 90, post. The argument is that communication to the devisee is needed only to establish that he is to hold in trust for some one, a fact which in the expressly "in trust" cases the will itself establishes, and that communication by the testator to any one will serve to designate the cestui que trust, i. e., to show "what the trust is." A letter of the testator to the devisee found among the testator's papers, as was the case in visee cannot be forced to carry out the uncommunicated wishes of the testator not attested as required by the statute as to wills, since to force him to do so would be to give those uncommunicated wishes the operative effect of a will. But it would seem to be just as sound to say that he should be allowed to carry out those wishes if he wants to, since nothing but his refusal or neglect to carry them out would justify the enforcement of a constructive trust against him in favor of anybody. 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 promise induces the giving of the legacy or devise. By the great weight of authority a constructive trust will be declared and enforced against a legatee or devisee, and in favor of the intended cestui que trust, if the testator gave the legacy or devise because of the legatee's or devisee's express or tacit promise to use the legacy or devise for the intended beneficiaries, provided the testator's intentions are legal and the names of the beneficiaries are communicated to the legatee or devisee by the testator in his lifetime.63 The minority decisions are discussed under the second In re Boyes, supra, would serve the same purpose. But in the absence of communication to him in the testator's lifetime, the devisee should not be compelled to hold in trust for the intended cestui que trust, but he should be permitted to hold for the intended cestui que trust if he desires to do so. 63 Drakeford v. Wilks, 3 Atk. 539 (1747); Thynn v. Thynn, 1 Vern. 295 (1864); In re Fleetwood, L. R. 15 Ch. D. 594 (1880); O'Brien v. Tyssen, L. R. 28 Ch. D. 372 (1884); Sharry v. Garty, 2 Ir. Ch. Rep. 351 (1850); O'Brien v. Condon, [1905] 1 Ir. R. 51; Buckingham v. Clark, 61 Conn. 204, 23 Atl. 1085 (1891); Caldwell v. Caldwell, 7 Bush (Ky.) 515 (1870); Chapman's Ex'r v. Chapman, 152 Ky. 344, 153 S. W. 434 (1913); Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464 (1888); Owings' Case, 1 Bland (Md.) 370 (1826); Olliffe v. Wells, 130 Mass. 221 (1881) (semble); Ham v. Twombly, 181 Mass. 170, 63 N. E. 336 (1902) (semble); Hooker v. Axford, 33 Mich. 454 (1876); Benbrook v. Yancy, 96 Miss. 536, 51 So. 461 (1910); Smullin v. Wharton, 73 Neb. 667, 103 N. W. 288 (1905); Williams v. Vreeland, 29 N. J. Eq. 417 (1878), 32 N. J. Eq. 135, 734 (1880); Yearance v. Powell, 55 N. J. Eq. 577, 37 Atl. 735 (1897) (see Powell v. Yearance, 73 N. J. Eq. 117, 67 Atl. 892 (1907)); O'Hara v. Dudley, 95 N. Y. 403 (1884); Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876 (1897); Edson v. Bartow, 154 N. Y. 199, 48 N. E. 541 (1897); Peters v. Peters, 122 N. Y. Supp. 363 (1910); Golland v. Golland, 84 N. Y. Misc. 299, 147 N. Y. Supp. 263 (1914); Winder v. Scholey, 83 O. St. 204, 93 N. E. 1098 (1910); Vance v. Park, 8 O. C. D. 425 (1898); Hoge v. Hoge, 1 Watts (Pa.) 163 (1832); Jones v. McKee, 3 Pa. St. 496 (1846); McKee v. Jones, 6 Pa. St. 425 (1847); Church v. Ruland, 64 Pa. St. 432 (1870); Socher's Appeal, 104 Pa. St. 609 (1883); Blick v. Cockins, 234 Pa. St. 261, 83 Atl. 196 (1912); Rutledge v. Smith, 1 McCord Ch. (S. C.) 119 (1825); Towles v. Burton, Rich. Eq. Cas. (S. C.) 146 (1831); McLellan v. McLean, 2 Head (Tenn.) heading post in regard to active solicitation, etc. When a trust is enforced it is not the express trust, but a constructive trust to 684 (1859); Stone v. Manning, 103 Tenn. 232, 52 S. W. 990 (1899); Bennett v. Harper, 36 W. Va. 546, 15 S. E. 143 (1892). Cf. Podmore v. Gunning, 7 Sim. 644 (1836); In re Pitt Rivers, supra; Mead v. Robertson, 131 Mo. App. 185, 110 S. W. 1095 (1908); Aumack v. Jackson, 79 N. J. Eq. 599, 82 Atl. 896 (1912). But see Moore v. Campbell, 102 Ala. 445, 14 So. 780 (1893), limited to devises and not applied to bequests in Moore v. Campbell, 113 Ala. 587, 21 So. 353 (1896). For the minority cases, see n. 68, post. That the Indiana rule is the same as the majority view has been doubted in view of Orth v. Orth, 145 Ind. 184, 42 N. E. 277 (1896) (see Ames, Lectures on Legal History, 430 n.), but the case of Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767 (1899) (see Moore v. Ransdel, 156 Ind. 658, 59 N. E. 936 (1901)), although a deed case instead of a will case, and although an instance of the prevention of a deed rather than the securing of a deed, makes it reasonably certain that the Indiana rule will be declared in accord with the majority view. In Ransdel v. Moore the intending grantor was on her deathbed and the court regarded the case as in effect one of prevention of a will. Cf. Ahrens v. Jones, 169 N. Y. 555, 62 N. E. 666 (1902), where a dying grantor gave a deed on an oral trust, and a trust was enforced for the intended cestui on the will theory. A similar case is Pollard v. McKenney, 69 Neb. 742, 96 N. W. 679 (1903). In many of the other deed on oral trust cases the fact that the grantor was dying or acted in contemplation of death, and but for the resort to a deed would have made a will, seems to have influenced the courts to find the breach of a special confidential relationship, or to presume fraud, as a basis for a constructive trust. See, for example, Fisk's Appeal, 81 Conn. 433, 71 Atl. 559 (1908); Larmon v. Knight, 140 Ill. 232, 29 N. E. 116 (1892); Crossman v. Keister, 223 Ill. 69, 79 N. E. 58 (1906); Newis v. Topfer, 121 Ia. 433, 96 N. W. 905 (1903); Scheringer v. Scheringer, 81 Neb. 661, 116 N. W. 491 (1903). Cf. Devemish v. Barnes, Prec. Ch. 3 (1689); McDowell v. McDowell, 141 Ia. 286, 119 N. W. 702 (1909). For cases where it is not clear whether the promise was before or after the making of the will, but a trust was enforced, see Nab v. Nab, 10 Mod. 404 (1717); Oldham v. Litchfield, 2 Vern. 506 (1705); French v. French, [1902] 1 Ir. R. 172; Shields v. McAuley, 37 Fed. 302 (1888); Hughes v. Bent, 118 Ky. 609, 81 S. W. 931 (1904); McAuley's Estate, 184 Pa. St. 124, 39 Atl. 31 (1897); Washington's Estate, 220 Pa. St. 204, 69 Atl. 747 (1908). In Bennett v. Harper, supra, a testator made a will leaving his home place to one of his daughters, after telling her husband that it was on condition that the husband should deed to another daughter a 600-acre tract of land which the testator had deeded to the husband some years before, and after being led to believe, by the husband's failure to object, that he acquiesced. The court declared a lien on the 600-acre tract in favor of the intended beneficiary "to the amount of the value of the 600-acre tract" with interest from the date of the suit and with an option on the husband's part to pay the amount or deed the land. One judge dissented on the ground that the burden should be thrown on the wife, who got the home place under the will, and not on the husband, and on the further ground that if the burden was to be thrown on the husband, he should be held to be a trustee and not merely subjected to a lien on his land. But clearly it was not a case for declaring a trust, as there was no trust res. Robinson v. Denson, 3 Head (Tenn.) 395 (1859). The relief given was the only relief theoretically proper, and if the case is to be sustained at all, it is as the reparation of an equitable |