Moore v. Campbell , 113 Ala. 587 ( 1896 )

COLEMAN, J.

When this case was here on former appeal, (102 Ala. 445), we discussed at length the question of engrafting a parol trust upon a devise or bequest, after the probate of the will. In the opinion we used the following language : “The principle that a parol trust may be engrafted upon a devise or bequest after the probate of a will was declared in Bishop v. Bishop, 13 Ala. 475, and followed in Barrell v. Hanrick, 42 Ala. 60. We do' not feel at liberty to depart from the rule declared in these decisions, inasmuch as the statute of wills was re-enacted in the same language, after the rendition of these decisions ; and it is not necessary to a decision of the present case. ’ ’

The bill, as then framed, justified the conclusion, that the trust set up pertained to realty. We held that this was prohibited by statute — section 1845 of the Code of 1886 — citing many authorities. After the remandment of the cause, the bill was amended, so as to charge that the trust related only to personalty. We are constrained by our former ruling following, the cases in 13 Ala. and 42 Ala. supra, to hold that such a trust is not obnoxious either to the statute of frauds or the statute of wills, and may be enforced. The remedy is with the legislature.

Reversed and remanded.

Brickbll, C. J., not sitting.-