Boughman v. Boughman ( 1903 )

It has long been established in this state, and counsel for the plaintiffs in error concede, that a parol trust may be in-grafted upon a deed absolute. But wherever this doctrine prevails it is required that the parol evidence by which it is sought to establish the trust must be clear and convincing. This is conformable to the general rule of equity that it will not, by any form of decree, upon mere suspicion or conjecture, abate the legal conclusiveness of a written instrument. Not only does the doctrine which plaintiffs below invoked make this requirement as to the probative character of the evidence to be by them produced, but it dispenses with none of the elements of a valid trust. To the creation of an express trust in lands in any mode it is indispensable that contemporaneously with the execution of the deed the beneficiary be designated and the terms and conditions of the trust declared. These doctrines are elementary, and they have been frequently explained and applied by this court. Fleming v. Donahoe, 5 Ohio, 255; Miller v. Stokely, 5 Ohio St., 194; Stall v. Cincinnati, 16 Ohio St., 169; Russell et al v. Bruer et al, 64 Ohio St., 1. In order that we may determine whether the judgment of the circuit court is in conformity with these views, it is necessary to analyze, though not to state at length, the evidence which was presented for its consideration. It was admitted that the property was purchased about the time alleged in the petition, and a deed absolute executed by the vendor to Malcolm; that the cash payment was made by Malcolm, his mother and his brother Marquis; and that a mortgage for the unpaid balance was executed by Malcolm. It was both admitted, and overwhelmingly proved, that Malcolm afterward conveyed to Marquis a portion of the land in recognition of an obligation arising out of the circumstances of its purchase and the payment therefor, and that until he died Edward had received a portion of the proceeds of the land and had contributed to the payment of taxes and making of repairs, and had delivered to the holder of the mortgage given on the purchase some small sums of money toward its discharge, including the ultimate payment. Numerous witnesses testified to admissions by Malcolm, some of them being distinct as to Edward’s interest in the proceeds of the land, and some of them vague as to his interest in the land itself. But of the numerous persons who were present when the purchase of the land was arranged for, none was called by the plaintiffs below. There was no evidence tending to show that Edward had contributed to the payment of the purchase money except by delivering the concluding payments upon the mortgage. In short, the evidence offered in support of the claim of the plaintiffs below left an express trust to mere conjecture. It wholly failed to show a resulting trust, for it did not tend to show any payment by Edward of purchase money at the time of the transaction, nor the assumption by him of any obligation with respect thereto.

The several persons who were present when the purchase was agreed upon were called by the defendants. Their testimony clearly established the purchase by Malcolm, his mother and his brother Marquis, the payment by them of the entire purchase price, and that the money which Edward had delivered to the holder of the mortgage was furnished by the mother, and delivered by him as her messenger. After the purchase the mother had consented that Edward should have her share of the proceeds of the land, and with her consent he continued to receive them while he lived. In view of this fact the testimony with respect to the admission of Malcolm, which occupied so much of the time of the trial court and exercised so much influence, upon its decision, loses its significance, for it is quite immaterial whether Malcolm misunderstood the arrangement between his mother and Edward, or the witnesses misunderstood the import of Malcolm’s alleged admissions.

It is urged by counsel for defendants in error that, it being admitted that Malcolm held an undivided two-thirds of the land in trust, only a preponderance of the evidence was required to establish the right of Edward as a beneficiary; and that this requirement was met by the evidence offered upon the trial, or, at least, that it can not be said here that it was not. Obviously this position ignores both the rule and the evidence. There can be no express trust without the contemporaneous designation of the beneficiary, that is, of the person who claims as beneficiary. Nor could there be the claimed preponderance of the evidence since all the clear and convincing evidence with respect to the contemporaneous arrangement, the designation of the beneficiaries and the declaration of the terms of the trust, showed affirmatively that Edward, was not a beneficiary.

It seems clear that the circuit court did not properly apply the rules which govern in cases of this character.

• Judgment reversed and judgment for plaintiffs in error.