Fox v. Fox

The judgment of the Supreme Court was entered, November 11th 1878,

Per Curiam.

There is no evidence to create a trust ex maleficio from acts or promises contemporary with the making and execution of the will. The evidence relates to conduct and promises made long afterwards, and when the testator was lying on his deathbed. The act relating to wills, of 8th April 1833, § 13, declares that no will shall be repealed, or its devises and directions altered, except by a will, or codicil, or other writing executed and proved in the same manner as a will, or by burning, cancelling, obliterating, or destroying it by the testator, or in his presence and by his express direction. It is evident, if the alleged promises and declarations of Levi Fox can be used to raise a trust, their effect would be to alter and destroy the devises and bequests in the will in a manner wholly at variance with the provisions of the law, and would lead to the most disastrous frauds. We see nothing in the testimony which would justify the raising of a trust of any kind which can operate to alter the will of John Fox. Doubtless it may be a hard case, and expectations may have been raised in the minds of the other children, but this is insufficient to repeal a will contrary to the express words of the law.

Decree affirmed, with costs to be paid by the appellants, and the appeal is dismissed.