Willats v. Bosworth

[711]

RICHARDS, J.

This is an action brought to establish a trust in real estate, and to remove the trustee for alleged violations of the terms and duties of his trust. The answer of the defendants admitted the substantial facts attending the creation of the trust, but upon the trial of the cause, and upon this appeal, the defendants there and the appellant here deny the sufficiency of those facts to accomplish the creation of a trust, and assert absolute ownership of the premises in question in the defendant Paul H. Bosworth. The trial court found in favor of the plaintiffs and entered its judgment establishing the trust and removing said Paul H. Bosworth as trustee thereof for culpable misconduct in the management of the trust, and appointing another trustee, and directing the execution of a deed to the premises covered by the trust on the part of said Bosworth to the new trustee. Prom such judgment the defendant Paul H. Bosworth prosecutes this appeal.

The only point urged by the appellant upon this appeal is that of the insufficiency of the evidence to justify the findings and judgment of the trial court.

The facts of the case are these: Virginia W. Bosworth was on and prior to the eighteenth day of October, 1911, the owner of the premises in question. She was the mother of Paul IT. Bosworth, and grandmother of the plaintiffs, and also of the defendant Virginia Bosworth, a minor, the latter being the daughter of said Paul H. Bosworth. On said eighteenth day of October, 1911, being on her deathbed, and desiring that- her said property should be devoted to the. maintenance and support of her said grandchildren, and having the fullest confidence in the integrity of her son, Paul H. Bosworth, she executed. and delivered to him a deed absolute in form to the premises in question, and said Paul IT. Bosworth then and there orally agreed and promised that he would hold said real estate in trust for the benefit of the said grandchildren of his dying mother, and for the purposes specifically to be set forth in a declaration of trust to be thereafter prepared and-signed by him. Shortly thereafter said Paul H. Bosworth did prepare and execute a purported declaration of trust.

Upon the trial of the cause practically all of the foregoing facts were admitted by said Bosworth, who then asserted, and undertook to prove, a set of facts tending to show that he had not acted in violation of the terms of his trust. Upon this appeal, however, the appellant contends that the trust itself