Curdy v. Berton

McFarland, J. Madeline Curdy died February 9, 1877, in Alameda County, California. She left a will duly executed, in which, after bequests to several persons, including the plaintiff herein, there occurs the following: “I give in trust to Francis Berton, now Swiss consul in San Francisco, all the moneys I possess in France, and principally my share of the Italian rentes, deposited in the banking-house of Messrs. Hentsch, Lutscher, & Co., of Paris, to be distributed according to the private instructions I give him.” Berton was present when the will was made, and wrote it for the testatrix at her request; and at the time of the making of the will she verbally instructed him to distribute said property or its proceeds to certain relations and others in France, other than the plaintiff herein, and gave him an order for said property. The facts in proof show that he at least impliedly agreed to accept the trust. After her death, and before the commencement of this action, said Berton faithfully distributed said property in accordance with the said instructions of said testatrix. This action is brought, by plaintiff, a brother of the deceased, and one of her heirs at law, to have it decreed that Berton held the legal title to said property in trust for the heirs of said deceased, for an accounting, and for the payment to him of his proportionate share of said property, with interest, profits, etc. Francis Berton died during the [423]pendency of the action, and his executor, George A. Berton, was substituted as defendant. The court gave judgment for defendant, and plaintiff appeals from the judgment, and from an order denying a new trial.

Upon the main point in the case the position of appellant is, in brief, that as the statute law of this state requires a will to be in writing, therefore, “ where a testator devises property in trust to be applied to such uses as the testator has verbally specified to the devisee, the trust attempted to be created by parol fails, and the devisee takes the property in trust for the heirs of the testator.” The contention of respondent is, in brief, that, independent of the statute of wills, where a testator bequeaths property in trust to a legatee, without specifying in the will the purposes of the trust, and at the same time communicates those purposes to the legatee orally, or by unattested writings, and the legatee, either expressly or by silent acquiescence, promises to perform the trust, and the trust itself is not unlawful, there a court of equity will raise a constructive trust in favor of the beneficiaries intended by the testator, and will charge the legatee as a constructive trustee for them, upon the ground that the legatee will not be countenanced in perpetrating a fraud, by encouraging the testator to make a bequest which would not otherwise have been made, and then refusing to execute his promise. We think that respondent’s view of the law, as above stated, is correct. There are some cases which support the proposition of appellant, notably the case of Olliffe v. Wells, 130 Mass. 221; but the weight of authority and the better reason are the other way.