In the District of Columbia, it is the rule that when, upon a
purchase of real estate, the conveyance of the legal title is to
one person while the consideration is paid by another, an implied
or resulting trust arises, which may be shown by parol proof, and
the grantee in the conveyance will be held on such evidence as
trustee for the party from whom the consideration proceeds, whose
rights will be enforced as against those claiming under the record
title.
Page 169 U. S. 399
This case comes within that rule, the evidence being clear and
satisfactory that the oral agreement made between Mr. and Mrs.
Avery at the time when the property was conveyed to the latter was
made as asserted by the Smithsonian Institution.
Such being established as the fact, it is the duty of a court of
equity to recognize that agreement as against the legal effect of
the conveyance to Mrs. Avery.
The presumption that, when the consideration for a deed is paid
by a husband, and the conveyance is made to his wife, the
conveyance is intended for her benefit is one of fact which can be
overthrown by proof of the real intent of the parties.
When a testator declares in his will that his several bequests
are made upon the condition that the legatees acquiesce in the
provisions of his will, no legatee can, without compliance with
that condition, receive his bounty or be put in a position to use
it in an effort to thwart his expressed purposes.
On June 4, 1895, the appellant, as plaintiff, filed its bill in
the Supreme Court of the District of Columbia to enforce certain
rights claimed under a will made by Robert S. Avery, on July 22,
1893. In this will, after sundry bequests to his own relatives, is
the following:
"I bequeath to the sister and brothers of my late wife one
thousand dollars (1,000), to be equally divided between them. I
have already given these last over a thousand dollars which my wife
inherited from her father, also clothing and other gifts, thus
equalizing substantially my gifts to her family and to mine. These
bequests are all made upon the condition that the legatees
acquiesce in this will, and I hereby bequeath the share or shares
of any disputing this will to the residuary legatee hereinafter
named."
"All the rest and residue of my estate, of whatsoever nature,
real, personal, or mixed, and wheresoever situate, I hereby give,
devise and bequeath unto the Smithsonian Institute, a body
corporate by virtue of the laws of the United States, of which
institution Samuel P. Langley is now secretary, having its legal
residence in the District of Columbia, unto it and its successors,
forever."
"Having always had a love for the sciences, and having acquired
most of my property while toiling in humble capacities to extend
and diffuse knowledge, I have concluded that
Page 169 U. S. 400
the residuary gift above made to the Smithsonian Institution
will best express my interest in science. As my labors have been
directed to the invention and use of phonetic type, I desire, but
do not require, that the income derived by the Smithsonian
Institution from this gift may be applied, so far as it may
determine, to promoting publications in such type of scientific
publication, especially of such publications as may relate to
phonetic type and printing. I also desire, but by no means require,
that such part of said income as the said institution shall
determine shall be applied to the publication of lectures and
treatises upon and concerning those mechanical laws governing an
etherial medium which are treated of in atomic chemistry, and which
are supposed to govern phenomena of electricity, magnetism, light,
and heat. Prizes might be given for essays on these subjects, and
upon such other kindred subjects as may meet the approval of the
institution. I would like, however, to have published first the
multiplying table and also IV-plate logarithms, publication of the
table of squares, cubes, square roots, cube roots, reciprocals,
prime numbers and factors, some of which I have written out. If the
institution shall approve, the fund derived from the residuary
bequest shall be called the 'Avery Fund' or the 'Fund Contributed
by Robert S. Avery and His Wife, Lydia T. Avery, for the Extension
of the Sciences;' and all publications made from the fund shall
bear this inscription."
"The property known as part of lot 2 (two) in square 787 in the
City of Washington, D.C., being premises No. 326 A street, S.E., is
my property, although the title stands in my wife's name. I include
it in the residuary bequest to the Smithsonian Institution."
The testator died childless on September 12, 1894. The will was
probated February 2, 1895. He and his wife had lived for many years
in Washington, he being in the employ of the government in the
Coast Survey Office. During these years, he lived a quiet and
retired life, devoting himself to scientific research and
experimenting chiefly in the matter of phonetic type. His wife was
younger than he, and was, until shortly before her death, on
November 18, 1890, in apparently
Page 169 U. S. 401
good health. While they were both living, and on April 20, 1885,
the real estate described in the last paragraph quoted from the
will was purchased, the title being conveyed to Mrs. Avery.
The bill alleged that the lot was paid for with the money of
Robert Avery; that the title was taken in the name of Mrs. Avery
because it was supposed that she would outlive her husband, and
upon an understanding and agreement that the property should, after
their deaths, pass to the Smithsonian Institution, in pursuance of
a mutual desire to make their gift to this institution as large as
possible; that, notwithstanding these facts, the defendants, other
than the executrix, claimed title to the property as the heirs of
Mrs. Avery, and had demanded possession. The prayer was for a
finding and decree that the equitable title was in Robert Avery,
and passed to the plaintiff by his last will; that the defendants
be enjoined from claiming any title thereto, and that the executrix
be directed to treat the $1,000 bequeathed to the sister and
brothers as forfeited for breach of condition annexed to said
legacy, and as having fallen into the residuum. After answer,
testimony was taken and the case was heard before Justice Hagner,
of the supreme court, who rendered a decree in accordance with the
prayer of the bill so far as respects the lot, but denying the
relief sought as to the legacy on condition of the defendants
executing a release of all claims to the realty. On appeal by all
of the defendants except the executrix, the Court of Appeals
reversed the decree of the supreme court, and remanded the case,
with directions to dismiss the bill. 8 App.D.C. 490. Whereupon the
plaintiff appealed to this Court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The legal title to this property passed by the conveyance
Page 169 U. S. 402
in 1885 to Mrs. Avery. She died without will.
Prima
facie, therefore, the title then passed to her heirs, the
appellees. The plaintiff insists that in fact the purchase price
was paid by Mr. Avery, and paid under an oral agreement whereby a
resulting trust was created which changed the course of the title,
and the first questions are whose money paid for the lot and was
there such an agreement, and if so, what were its terms?
That the money which was used in making payment for the lot was
the money of Mr. Avery is not seriously questioned. Both Mr. and
Mrs. Avery lived very economically, and this money was accumulated
out of savings from the salary he received from the government. At
the time of their marriage, Mrs. Avery had a small amount of money
on deposit in a savings bank in Connecticut, and the books of the
bank showed that no part of that amount was drawn out at or near
the time of this conveyance. Her repeated declarations were to the
same effect, and that Mr. Avery's money had paid for the
property.
The trial court also found that there was an oral agreement --
an agreement made at the time the property was conveyed to Mrs.
Avery -- that she should hold the property during her lifetime and
that she should make a will by which it should pass at her death to
the Smithsonian Institution. The Court of Appeals held that the
testimony did not establish the alleged agreement so clearly as to
justify a court of equity in recognizing it as against the legal
effect of the conveyance. We are constrained to differ with the
Court of Appeals, and to agree with the justice of the Supreme
Court. In a careful and exhaustive opinion, Justice Hagner reviewed
the evidence, and his conclusions therefrom commend themselves to
our judgment. In view of this opinion, it seems unnecessary to
recapitulate all the testimony, and we shall content ourselves with
stating the salient features thereof.
Mr. Avery was for some 32 years in the employ of the government,
and an enthusiast in the scientific studies which he was pursuing
in connection with such service. Prior to the purchase of the lot
in controversy, and on September
Page 169 U. S. 403
13, 1882, he had made a will in which, after giving to his
"wife, Lydia T. Avery, if she outlives me, in trust while she
lives, all my real estate and personal property, . . . to hold and
to use for her support a long as she lives, and to keep in good
condition for its final disposition,"
he declared:
"Having always had a love for the sciences, and having acquired
most of my property while toiling in humble capacities to extend
and diffuse knowledge, I have concluded to giving all my real and
personal property, with such exceptions as I may make hereafter in
this will or in codicils annexed thereto, to the Board of Regents
of the Smithsonian Institution, to provide for its safekeeping, and
to use the income from it in extending the sciences by
publishing,"
etc.
And again:
"This fund may be called the 'Avery Fund,' or the 'Fund
Contributed by Robert S. Avery and His Wife, Lydia T. Avery, for
the Extension of the Sciences,' and all publications made with this
fund must have a note thereon stating that they have been thus
published."
"After the death of my wife, the Board of Regents of the
Smithsonian Institution will be expected to select an executor of
this will, and provide for making the fund as useful as possible,
limiting its use as much as they can to the objects specified."
His wife was fifteen or twenty years younger than he, and the
expectation of both was that she would outlive him, though in fact
she died some four years before he did, he living to be 86 years of
age. After her death, and on December 20, 1892, he prepared a
codicil to the will of 1882, in which he recited that the
conveyance of the property in question was made to his wife with
his consent, and upon the express understanding and condition that
she should make a will in his favor, and that he had, as evidence
of this, filed several affidavits of her statements in respect to
the matter. Subsequently he executed the will of July 22, 1893,
under which this suit was brought. The wills and codicil above
referred to furnish indisputable evidence that, prior to the
purchase of
Page 169 U. S. 404
the real estate in controversy, Mr. Avery intended that all his
property, after certain legacies were paid, should go to the
Smithsonian Institution and that he understood that when the deed
of this property was made to his wife, it was upon the agreement
described. That the agreement was made is clearly and positively
testified to by one witness, Leland P. Shidy, who was associated in
the government service with Mr. Avery, was the intimate friend of
both Mr. and Mrs. Avery, living in the house with them from time to
time during the years from 1873 to her death. We quote from his
testimony:
"Q. Do you recollect the circumstance of the purchase by Mr.
Avery of the property No. 326 A Street southeast, in this
city?"
"A. Yes; I do. I was at their house at the time when they began
talking about making the purchase, and they discussed it, in the
first place, as to the advisability of getting the property at all,
and, after that was decided, they discussed as to how the deed had
better be made out, and Mrs. Avery thought it would be best to put
the deed in her name, although her husband's money was paying for
it exclusively, and he thought best to do so, and had the deed made
out in her name."
"Q. Did Mrs. Avery state any reason why the deed should be made
out in her name?"
"A. Yes; she wanted it in her name, in the first place, because
she wanted to have the control of that property, as it was
immediately contiguous to her own home, and then she thought she
would be pretty certain to outlive her husband, and that it would
be better, in case of his death, to have the title in her name than
in his name."
"Q. state what final disposition, if any, was agreed upon by
these two persons in your presence."
"A. It was agreed that she should have the property during her
lifetime, and that she should make a will transferring it at her
death to the Smithsonian Institute."
"Q. I understand that this conversation which you are now
testifying to took place at or about the time of the actual
purchase
Page 169 U. S. 405
and the making of the deed. Was any reference made to the
ownership of this property that you can now recollect subsequent to
the date when it was bought?"
"A. After that, they referred to it in a number of interviews
while I was present, and every time, they alluded to it with the
same understanding -- that is, that the property was to be hers
during her lifetime, and was to be disposed of at her death, in
accordance with the will of Mr. Avery, with the rest of his
property."
In addition, there was the testimony of several witnesses of
repeated conversations with Mrs. Avery in which she made statements
to the same effect. In a lease of the property made in 1887, Mr.
Avery was named as the lessor. The receipts for rent given monthly
for several years were signed by him alone, and so signed in her
presence. There is nothing to contradict or discredit this
evidence. While it may be true that no witness but the one was
present at the time the agreement was entered into between Mr. and
Mrs. Avery, yet his testimony is corroborated in the various ways
to which we have referred. There is no arbitrary rule requiring the
direct testimony of any particular number of witnesses to the
ultimate fact. It is enough that there be a certainty in respect to
it, and that certainty may result from an accumulation of direct
and indirect evidences. The law is content if, from a perusal of
the entire record, the mind is sure that there was a distinct
agreement as claimed. That Mr. Avery understood that the agreement
was made as stated the documentary evidence places beyond doubt;
that it was in fact made Mr. Shidy's testimony attests, and that
Mrs. Avery understood that it was so made is evident not merely
from Mr. Shidy's testimony, but from her statements to many others.
The will executed in 1882, and before the purchase of this lot,
discloses his intent that all his property, save a few specific
bequests, should go to the Smithsonian, and that the fund created
thereby should bear his wife's as well as his own name, and the
evidence makes it clear that she shared in his desire to make this
fund as large as possible. While we agree to the proposition that
parol testimony to overthrow the legal effect
Page 169 U. S. 406
of conveyances must be clear and satisfactory, yet we think this
case comes within the scope of that rule, and that it is certain
that just such an agreement was made between husband and wife as
the appellant asserts. Even if it were a criminal case, we should
not hesitate to hold that the evidence was sufficient to establish
the fact beyond a reasonable doubt. It is true, Mr. Avery, in the
codicil, speaks of of the agreement on the part of Mrs. Avery as
one to make a will in his favor, while Mr. Shidy says that the
agreement was that she should make a will transferring the property
after her death to the Smithsonian; but this slight difference is
immaterial, and does not discredit the testimony. The Smithsonian
was to be the ultimate beneficiary, and the manner in which this
should be accomplished was merely a matter of detail, in respect to
which the memory of the witnesses might differ. Indeed, Mr. Shidy
does not purport to give the exact language used, but merely states
the substance of the agreement.
We pass, therefore, to the further question: if it is true that
the purchase price was paid by Mr. Avery, and the title conveyed to
Mrs. Avery under an oral agreement, such as is described, will
equity enforce this as against those claiming the record title?
The Court of Appeals was of the opinion that the agreement on
the part of Mrs. Avery created an express trust which, resting only
in parol, was invalid under the statute of frauds. It recognized
the doctrine that an implied or resulting trust arises by operation
of law whenever one person buying and paying for an estate has the
title placed in the name of another, but held that where the title
is conveyed to a wife or child, or other person for whom the one
paying the purchase money is under an obligation, legal or moral,
to provide, no presumption of a trust arises, and that it is
incumbent on one who claims the existence of such a trust to
establish it by clear, positive, and unequivocal proof, and that
this had not been done in the present case. It did not
substantially disagree with the trial court on the propositions of
law laid down by him, but differed mainly as to the strength and
effect of the evidence.
Page 169 U. S. 407
The general proposition is unquestioned that where, upon a
purchase of property, the conveyance of the legal title is to one
person, while the consideration is paid by another, an implied or
resulting trust immediately arises, and the grantee in the
conveyance will be held as trustee for the party from whom the
consideration proceeds.
"This rule has its foundation in the natural presumption, in the
absence of all rebutting circumstances, that he who supplies the
purchase money intends the purchase to be for his own benefit, and
not for another, and that the conveyance in the name of another is
a matter of convenience and arrangement between the parties for
collateral purposes, and this rule is vindicated by the experience
of mankind."
1 Perry on Trusts (4th ed.) § 126.
The nature of this trust may be shown by parol evidence. This is
in express accord with the provisions of the statute of frauds.
Comp.St.D.C. 231, §§ 8, 9. The first of these sections requires
that all declarations or creations of trust or confidence in
respect to real estate shall be manifested and proved by some
writing. Section 9 reads:
"
Provided always that where any conveyance shall be
made of any lands or tenements by which a trust or confidence shall
or may arise or result by the implication or construction of law,
or be transferred or extinguished by an act or operation of law,
then and in every such case, such trust or confidence shall be of
the like force and effect as the same would have been if this
statute had not been made; anything hereinbefore contained to the
contrary notwithstanding."
There is no statute in force in this District, such as is found
in some states, putting an end to implied and resulting trusts. It
is true that when the consideration is paid by a husband, and the
conveyance made to his wife, there is a presumption that such a
conveyance was intended for her benefit; but this is not a
presumption of law, but of fact, and can be overthrown by proof of
the real intent of the parties.
"Whether a purchase in the name of a wife or child is an
advancement or not is a question of pure intention, though presumed
in the first instance to be a provision and settlement.
Page 169 U. S. 408
Therefore any antecedent or contemporaneous acts or facts may be
received either to rebut or support the presumption, and any acts
or facts so immediately after the purchase as to be fairly
considered a part of the transaction may be received for the same
purpose. And so the declarations of the real purchaser, either
before or at the time of the purchase, may be received to show
whether he intended it as an advancement or a trust. Such
declarations are received not as declarations of a trust by parol
or otherwise, but as evidence to show what the intention was at the
time."
1 Perry on Trusts (4th ed.) § 147.
See also 2 Pomeroy's
Eq.Juris. § 1041, and cases cited in notes.
This is in accord with the general proposition so often
enunciated that the statute of frauds was designed to prevent
frauds, and that courts of equity will not permit it to be used to
accomplish that which it was designed to prevent. As said in
Wood v. Rabe, 96 N.Y. 414, 425:
"There are two principles upon which a court of equity acts in
exercising its remedial jurisdiction. . . . One is that it will not
permit the statute of frauds to be used as an instrument of fraud,
and the other that when a person, through the influence of a
confidential relation, acquires title to property or obtains an
advantage which he cannot conscientiously retain, the court, to
prevent the abuse of confidence, will grant relief."
And in
Haigh v. Kaye, L.R, 7 Ch.App. 469, 474:
"The words of Lord Justice Turner in the case of
Lincoin v.
Wright, 4 De G. & J. 16, where he said, 'The principle of
this Court is that the statute of frauds was not made to cover
fraud,' express a principle upon which this Court has acted in
numerous instances, where the court has refused to allow a man to
take advantage of the statute of frauds to keep another man's
property which he has obtained through fraud."
If Mrs. Avery had during her lifetime conveyed this property to
her sister and brothers, it would have been a fraudulent breach of
trust, and the like result follows if, now that she has died
without executing a will, her heirs are permitted to take the
property which was conveyed to her not
Page 169 U. S. 409
as an advancement, but on an agreement that it should
subsequently pass to this plaintiff.
The existence of an express agreement does not destroy the
resulting trust. It was not an agreement made by one owning and
having the legal title to real estate, by which an express trust
was attempted to be created, but it was an agreement prior to the
vesting of title -- an agreement which became a part of and
controlled the conveyance, and evidence of its terms is offered not
for the purpose of establishing an express trust, but of nullifying
the presumption of an advancement, and to indicate the disposition
which the real owner intended should be made of the property.
In
Robinson v. Leflore, 59 Miss. 148, 151, it was
said:
"If the facts make out a case of resulting trust independently
of the agreement, relief will not be denied because of the
agreement, it being well settled that an invalid agreement cannot
destroy an otherwise good cause of action, and this is no less true
of resulting trusts than of other legal rights."
Keller v. Kunkel, 46 Md. 565.
It may not be amiss to notice a few of the authorities.
Sherman v. Sherman, 20 D.C. 330, is in point. In that
case, the husband made an agreement with his wife to buy real
estate in her name, and that she should execute a will devising it
to him. He bought one piece of real estate in her name, and she
made a will so devising it. Subsequently he in like manner bought
another piece, and, under the supposition that the will covered
this after-acquired property, she made no new will, but died
intestate as to that property, and it was ruled that a minor
daughter, who inherited the title, held it in trust for him. In
Livingston v. Livingston, 2 Johns.Ch. 537, it appeared
that husband and wife agreed orally that he should purchase a lot
in her name and build a house thereon, and that he should be
reimbursed the cost thereof out of the proceeds of another house
and lot of which she was seised, which should be sold for that
purpose. The husband having executed the agreement upon his part,
the contract failed by the sudden death of the wife, who left
infant children, to whom the legal estate in both lots descended,
and
Page 169 U. S. 410
it was held that the agreement should be carried into effect,
and the lot which originally belonged to the wife was ordered to be
sold, and the husband reimbursed out of the proceeds. In his
opinion, the Chancellor said (page 539):
"The presumption would undoubtedly be in the first instance that
the conveyance to the wife was intended as an advancement and
provision for her. This presumption was admitted in the case of
Kingdon v. Bridges, 2 Vern. 67, but I do not see why it
may not be rebutted, as has been done in this case, by parol proof.
In
Finch v. Finch, 15 Ves. 43, it was held that though,
when a purchase is made in the name of a person who does not pay
the purchase money, the party paying it is considered in equity as
entitled, yet if the person whose name is used be a child of the
purchaser, it is
prima facie an advancement, but that it
was competent for the father to show by proof that he did not
intend advancement, but used the name of his child only as a
trustee."
Cotton v. Wood, 25 Ia. 43. Here, the facts were that
the husband purchased a lot and had the same conveyed to his wife
under an agreement that she would convey it to him, or to
whomsoever he might assign his interest therein, upon his request.
The wife died without making any conveyance, and it was held that
the husband might maintain a suit to compel a conveyance to him by
her heirs, the court saying:
"Where, upon the purchase of property, the consideration is paid
by one and the legal title conveyed to another, a resulting trust
is thereby raised, and the person named in the deed will hold the
property as trustee of the party paying the consideration.
See Hill on Trustees 91 and authorities cited in notes; 2
Story's Eq.Juris. § 1201. But if the person to whom the conveyance
is made be one for whom the party paying the consideration is under
obligation, natural or moral, to provide, the transaction will be
regarded
prima facie as an advancement, and the burden
will rest on the one who seeks to establish the trust for the
benefit of the payee of the consideration to overcome the
presumption in favor of the legal title by sufficient
evidence."
"This presumption, though strong, is not conclusive. Hill
Page 169 U. S. 411
on Trustees 97 and notes;
Sunderland v. Sunderland, 19
Ia. 328;
Livingston v. Livingston, 2 Johns.Ch. 540; 2
Story's Eq.Juris. § 1203; 2 Washburn, Real Property 173-174, 204;
Welton v. Devine, 20 Barb. 9;
Guthrie v. Gardner,
19 Wend. 414;
Harder v. Harder, 2 Sandf.Ch. 17."
See also Gray v. Jordan, 87 Me. 140;
Milner v.
Freeman, 40 Ark. 62;
Hudson v. White, 17 R.I. 519;
Persons v. Persons, 25 N.J.Eq. 250.
Somewhat analogous is
In re Duke of Marlborough, L.R. 2
Ch.Div. 133, in which it appeared that the Duchess of Marlborough
conveyed certain property to her husband; that he mortgaged the
property for the purpose of raising money with which to pay his
debts, she joining in the mortgage. Upon his death, the duchess
claimed to be entitled to the property, subject to the mortgage, on
the ground that it was part of the arrangement between them that he
should reconvey to her, and it was held that she was entitled to
such reconveyance.
We think it clear from these authorities and many others that
might be cited (
see White & Tudor's Leading Cases in
Equity [4th ed.], vol. 1, part 1, p. 314, and following, where the
authorities are collated and the question discussed at length),
that the doctrine of an implied and resulting trust applies to a
case in which the husband advances the purchase price for property
which is conveyed to his wife, and that, though it be true there is
a presumption that the conveyance was intended as an advancement
for her benefit, yet such presumption is subject to overthrow by
proof of an agreement that such was not the purpose of the
conveyance. And so the case comes back to the question of fact in
respect to which we have already expressed our conclusions --
whether there was sufficiently clear and positive evidence that
this conveyance to Mrs. Avery was not intended as an advancement,
but was made simply for the purpose of convenience, and upon the
agreement that this lot, together with other property belonging to
Mr. Avery, should pass, after both were dead, to the Smithsonian
Institution.
The remaining question arises upon the condition named in
Page 169 U. S. 412
the will, and its effect upon the legacy to the sister and
brothers of Mrs. Avery. That these legatees did not acquiesce in
the will is clear not alone from the fact that, prior to any suit,
they made demand for the possession of the realty, but also from
the further fact that after the decree in the trial court, which,
while denying any right to the real estate, at the same time
provided for their receipt of the legacy upon filing a written
relinquishment of all claims to the real estate, they persisted in
carrying on the litigation by appeal to the Court of Appeals,
insisting there, as here, upon their right to the property. It is
obvious that, in inserting this condition, the testator had in mind
the specific property hereinbefore considered. In the first will,
made prior to the purchase of the property, no such provision is
found. He was under no apprehension of any dispute as to the
proposed disposition of his entire estate. But in a second codicil
thereto executed after the death of his wife, and when, by her
failing to execute a will as agreed upon, it became apparent that
some question might be made concerning the ownership of this
property, he did incorporate a somewhat similar provision. There
is, however, a marked difference between the language there used
and that here found. That language was:
"These gifts are made on the condition that no attempt be made
to break this will, and that, if such an attempt be made, those who
engage in it are to lose their claims to the gifts here made to
them."
That might be construed to forbid, under the penalty of losing
the bequests, a contest of the will -- any "disputing of the will,"
in the ordinary and natural meaning of those words -- by denying
that it was a lawful will, duly executed and attested by a testator
of sound mind and not acting under undue influence. The language
here used is that
"these bequests are all made upon the condition that the
legatees acquiesce in this will, and I hereby bequeath the share or
shares of any disputing this will to the residuary legatee
hereinafter named."
In other words, acquiescence in the will as a will, and in all
its provisions, is the condition upon which the legatees can take
their bequests. It is not confined to mere acquiescence in his
selection of the residuary
Page 169 U. S. 413
legatee, but in his declaration as to the title to any named
property and his devise of that property. No legatee is to receive
a bequest who shall controvert that which he has stated to be a
fact or attempt to prevent that specific disposition of any
property which he has made. And in case of a failure to comply with
this condition, the bequest is given over to the residuary legatee.
The authorities fully warrant this conclusion.
"When legacies are given to persons upon conditions not to
dispute the validity of or the dispositions in wills or testaments,
the conditions are not, in general, obligatory, but only
in
terrorem. If, therefore, there exist
probabilis causa
litigandi, the nonobservance of the conditions will not be
forfeitures.
Powell v. Morgan, 2 Vern. 90;
Morris v.
Burroughs, 1 Atk. 404;
Loyd v. Spillet, 3 P.Wms. 344.
The reason seems to be this: a court of equity does not consider
that the testator meant such a clause to determine his bounty if
the legatee resorted to such a tribunal to ascertain doubtful
rights under the will, or how far his other interests might be
affected by it, but merely to guard against vexatious
litigation."
"But when the acquiescence of the legatee appears to be a
material ingredient in the gift, which is made to determine upon
his controverting the will or any of its provisions, and in either
of those events the legacy is given over to another person, the
restriction no longer continues a condition
in terrorem,
but assumes the character of a conditional limitation. The bequest
is only
quousque the legatee shall refrain from disturbing
the will and if he controvert it, his interest will cease and pass
to the other legatee."
1 Roper on Legacies, 2d Am.Ed. 795, 4th Lond.Ed.
In
Cooke v. Turner, 14 Sim. 493, the testator, after
giving to his daughter certain benefits out of his real estate,
revoked them and gave the estates over in case his daughter should
dispute his will or his competency to make it, or should refuse to
confirm it when required by his executors. The daughter refused to
confirm the will, and, a suit having been instituted to establish
it, the daughter disputed its validity and the competency
Page 169 U. S. 414
of her father to make it. It was held that the clause of
revocation was valid, that the gift over took effect, and that the
benefits given by the will to the daughter were forfeited by that
which had taken place.
It is said in 2 Redfield on Wills, p. 298, in treating of the
rule as to conditions against disputing the will, that "acceptance
of the legacy renders the condition binding upon the legatee upon
the well known doctrine of election." Election is thus defined by
Sir William Grant, Master of the Rolls, in
Andrew v. Trinity
Hall, 9 Ves. 525, 533:
"Where one legatee under a will insists upon something by which
he would deprive another legatee under the same will of the benefit
to which he would be entitled if the first legatee permitted the
whole will to operate."
This thought finds apt illustration in the case at bar. These
legatees insist that the devise of this particular real estate to
the plaintiff shall not stand; that it was not the property of the
testator, and could not lawfully be devised by him, and therefore
that the plaintiff shall not take the property which the testator
proposed to give it. If, however, they had accepted this legacy
burdened with the condition named, might it not fairly be said that
they elected to acquiesce in the will and in the disposition
specifically made by the testator of this property? Redfield, in
the same volume, on page 370, after citing
Morrison v.
Bowman, 29 Cal. 337, in which this subject was considerably
discussed, states as one of the propositions therein
established:
"Although the testator has no legal power to dispose of the
property of another, yet if he assumes to do so by his will, and
such person accepts a devise or bequest under the will, it will be
a confirmation of such disposition of his own property by the
testator."
In
Beall v. Schley, 2 Gill 181, 200, the court
said:
"It is only carrying out a plain intent of the testator, and
giving to the residuary devisee that which the testator intended,
and forbidding the heir from taking property not designed for him.
From the earliest case on the subject, the rule is that a man shall
not take a benefit under a will and
Page 169 U. S. 415
at the same time defeat the provisions of the instrument. If he
claims an interest under an instrument, he must give full effect to
it so far as he is able to do so. He cannot take what is devised to
him and at the same time what is devised to another, although, but
for the will, it would be his; hence he is driven to his election
to say which he will take."
See also 1 Jarman on Wills, 415; 2 Story's Eq.Juris. §
1076.
The propositions thus laid down fully commend themselves to our
approval. They are good law and good morals. Experience has shown
that often, after the death of a testator, unexpected difficulties
arise; technical rules of law are found to have been trespassed
upon; contests are commenced wherein not infrequently are brought
to light matters of private life that ought never to be made
public, and in respect to which the voice of the testator cannot be
heard either in explanation or denial; and, as a result, the
manifest intention of the testator is thwarted. It is not strange
in view of this that testators have desired to secure compliance
with their dispositions of property, and have sought to incorporate
provisions which should operate most powerfully to accomplish that
result. And when a testator declares in his will that his several
bequests are made upon the condition that the legatees acquiesce in
the provisions of his will, the courts wisely hold that no legatee
shall, without compliance with that condition, receive his bounty
or be put in a position to use it in the effort to thwart his
expressed purposes.
The decree of the Court of Appeals will be reversed, and the
case remanded to that court, with instructions to enter a decree in
conformity with this opinion.
THE CHIEF JUSTICE did not sit in this case, and took no part in
its consideration and judgment.