Wyoming-Montana Development Co. v. Wells Fargo Bank & Union Trust Co.

SPENCE, J.

In this action to establish a resulting trust, defendant had judgment and plaintiff appeals.

Plaintiff is a corporation in which Thomas G. Hutt, deceased, was a large stockholder. Deceased died in 1929 and his estate was distributed in the same year. Certain property was distributed to defendant as trustee under the last will and testament of said deceased. Part of the property so distributed was a fractional interest in an oil and gas prospecting permit issued by the secretary of the interior to Thomas Downing in 1923. This fractional interest had been assigned to said deceased by said Thomas Downing by an instrument dated September 22, 1924. No claim was made by plaintiff against defendant until October, 1933, and this action was not commenced until December, 1933.

In its complaint, plaintiff alleged that the purchase price for the assignment from said Downing to said deceased was paid by plaintiff and that it was intended by the parties that said deceased should hold said assignment in trust for plaintiff. These allegations were denied by defendant and the trial court made findings in favor of defendant upon the issues thus made.

Appellant contends that the evidence was insufficient to sustain these findings but we find no merit in this contention. The burden was upon appellant to prove the essential allegations establishing the trust by clear and convincing evidence.

(Woodside

v.

Hewel,

109 Cal. 481 [42 Pac. 152]; see, also, 65 Cor. Jur. 448 to 453 and cases cited.) This was particularly true in view of the fact that the alleged trustee had died and was unable to testify to the facts.

(Turman

v.

Ellison,

37 Cal. App. 204 [174 Pac. 396];

Walker

v.

Jackson,

48 Idaho, 18 [279 Pac. 293];

Stevens

v.

Fitzpatrick,

218 Mo. 708 [118 S. W. 51, 23 A. L. R. 1528 to 1531].) While appellant produced certain testimony tending to show that it had paid the purchase price, the trial court had the opportunity to see the witnesses and to weigh the testimony