I cannot agree with the majority opinion that the execution of the deeds of April 3, 1922, from Emma Gillett Oglesby to John G. Oglesby and Countess Cenci, the terms of which were reduced to writing by the instrument of April 22, 1925, did not create a trust.
The opinion holds that the deeds of April 3, 1922, from Emma Gillett Oglesby, grantor, to her son John and her daughter, were absolute conveyances and that the written instrument of April 22, 1925, was merely a contract or covenant on the part of the grantees concerning their testamentary disposition of the land and did not create or manifest a trust. It is undisputed that the deeds were made in accordance with and in consideration of the grantees' agreement and promise to the grantor, as evidenced by the written instrument of April 22, 1925, that they would hold and transfer the land to the persons and according to such agreement; and, since there is no contention that there was any fraud, either positive or constructive, practiced upon the grantor to induce the conveyances or that the grantees obtained the conveyances by virtue of any confidential relation or undue influence, there was no implied or constructive trust resulting from the transaction. (Davids v. Davids, 333 Ill. 327, 331;Gilbert v. Cohn, 374 Ill. 452, 459; Neagle v. McMullen, 334 Ill. 168; Sharp v. Bradshaw, 367 Ill. 526; Steinmetz v. Kern, 375 Ill. 616. ) The
agreement upon and in consideration of which the deeds were made was an express trust which, under section 9 of the Statute of Frauds, could not be enforced unless in writing. (Suchy v.Hajicek, 364 Ill. 502, 509; Davids v. Davids, 333 Ill. 327;Monson v. Hutchin, 194 Ill. 431.) But, as the oral agreement, in consideration of which the deeds were made was subsequently, on April 22, 1925, reduced to writing, in which written instrument the grantees stated that the deeds were made in consideration of such agreement and further therein expressly agreed to perform the same and transfer the land to the persons and in accordance with the terms of such agreement, which were fully set out in the instrument, this writing would create and manifest the trust, as required by the Statute of Frauds, and this would be true even though the trust was originally void because not reduced to writing. A person holding the legal title to lands may make a written declaration, which is binding, that he holds the same in trust or for the benefit of another. (Fast v. McPherson, 98 Ill. 496,503.) Where lands have been conveyed to one without any attempt to declare a trust at the time, but a trust was intended, he may afterward, by letter or any other instrument in writing, declare that he holds the same in trust, and such declaration of trust will be binding, since the right to thus declare a trust in the first instance implies the right to make certain and specific a trust before attempted to be declared. (Rankin v. Bancroft Co. 114 Ill. 441, 454.) Thus, the execution by the two grantees of the written instrument of April 22, 1925, was a binding declaration of the trust upon which they had received the conveyances. The release of the daughter's husband and the written approval of the mother, both of which were attached to the written declaration of the grantees, neither prevented nor accomplished the creation of the trust, but the one merely approved and confirmed the written declaration of the terms upon which the conveyances were made and the other was
to remove the husband's inchoate right of dower, which was otherwise an incumbrance or cloud upon the legal title.
The written instrument of April 22, 1925, evidenced the existence of a trust, since the use of the words "trust" or "trustee" or any particular forms of words is not necessary, (54 Am. Jur. 50, sec. 40; Wittmeier v. Heiligenstein, 308 Ill. 434,436,) but the rule is that any expression which shows unequivocally the intention to create a trust will have that effect, and that "Any agreement or contract in writing made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property or a certain fund shall be held or dealt with in a particular manner for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him voluntarily or with notice." Wittmeier v. Heiligenstein, 308 Ill. 434, 437.
The rule of equitable construction announced and adhered to by this court is that any agreement or contract in writing made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property or a certain fund shall be held or dealt with in a particular manner for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement. (Osborn v. Rearick, 325 Ill. 529; Wittmeier v.Heiligenstein, 308 Ill. 434.) A writing which describes with a reasonable degree of definiteness the property, the purposes of the trust and the beneficiaries is sufficient. Such a writing is adequate for the purposes of the Statute of Frauds regardless of its form, and irrespective of whether it was the intention thereby to create a trust. (Tiffany's Real Property, 3d ed. vol. 1, sec. 254, p. 434.) Tested by these principles, the language used in the contract of April 22, 1925, shows unequivocally the creation of a trust. It
sets forth the agreement and understanding between the grantor and grantees under which the deeds were executed, and it was acknowledged therein by John G. Oglesby and Countess Cenci, the parties signing the contract, that they acquired title under the deeds only for the purpose of carrying out such understanding and agreement. The contract of April 22, 1925, obligated both John G. Oglesby and the Countess Cenci to give, devise and bequeath to the survivor for life the property conveyed to them by the deeds, with remainder in fee to some child, children or descendants of a child or children of John D. Gillett. Where an instrument creates the power coupled with or in the nature of a trust to dispose of the property specified among the heirs, such power so given is considered a trust for the benefit of the parties so designated. In cases of this kind the power or trust should be construed according to the intention of the parties as gathered from the whole instrument, and where the trustee does not act before his death and could have distributed the property in such proportions as in his discretion he might decide, having failed before his death to distribute the property so left to him in trust, the court will put itself in the place of the trustee and will exercise the power by the most equitable rule, and distribution will be made per capita so that everybody within the rule will take equally as tenants in common. (Wetmore v. Henry,259 Ill. 84, 85.) The contract specifically described the particular parcels of land constituting the subject matter of the contract and the manner in which, and the persons for whose benefit, the grantees were obligated to deal with the property. This is all that is necessary to raise a trust in a court of equity.