Haskell v. First National Bank

NOURSE, P. J.

Plaintiffs sued to have it established that certain real property standing in the name of Lois Atwell (deceased) was held by the defendant bank, as trustee under the will of Mrs. Atwell, as a constructive trustee for these plaintiffs because of an express or resulting trust created by the deceased whereby she undertook and assumed to hold the property as a voluntary trustee for these plaintiffs. The property in suit was purchased by the deceased for the benefit of the plaintiffs, and they were put in possession under an oral promise of the deceased that she would hold the property as trustee for them. The bank holds under a testamentary trust of all the residue, the particular property in suit not having been described in the testamentary trust.. The plaintiffs had judgment subject to the equities of the heirs of the deceased arising out of payments advanced under the testamentary trust.

Appellants argue that the judgment should be reversed because their special demurrer, raising the issue of ambiguity, and that several causes of action were improperly united and not separately stated, should have been sustained. Their theory is that the respondents should have been compelled to tie their cause of action to either an express or a resulting trust in Mrs. Atwell, and that they could not rely upon both in the same cause of action. Of course, the cause of action is based upon the claim of a constructive trust in the appellants. The allegations objected to relate to the circumstances leading up to the creation of that trust. But one cause of action is stated, and the appellants were fully informed before the trial of the circumstances upon which the respondents would rely to prove their case. We will not reverse a judgment on the ground that a special demurrer should have been sustained when it appears that the matters objected to did not affect the conduct of the trial and that the error complained of has not “resulted in a miscarriage of justice”. (Const., art. VI, sec. 41/2.)

[401]

By the same reasoning, if the trial court erred in finding a resulting trust in Mrs. Atwell, and the evidence discloses the existence of an express trust in the same person, for the same purposes, and for the same beneficiaries, the error is unsubstantial, because the ultimate fact upon which the cause of action is based is the constructive trust in appellants. This fact having been found as alleged, the right to the relief sought is established, and that closes the ease so far as appellants are "concerned.