1859.

MILLER

V.

estate, from which his wife is entitled to a legacy, money, Nov. Term, not as an advance, but under a contract to refund, or an understanding that it is to be employed in part payment of land bought in the wife's name. Savage v. Benham, BLACKBURN. 17 Ala. R. 120.-Barron v. Barron, 24 Verm. R. 375. In the latter case, it is held that the receipt of the money must be the result, or by virtue of his marital rights.

The question of reduction to possession thus depending, in a great measure, upon the husband's intention, acts which, prima facie, would establish a reduction, may be shown by other circumstances, or by his declarations at the time, or subsequently, to have been intended for the benefit of, or in trust for, his wife. Hind's Estate, 5 Whart. 138.-Gray's Estate, 1 Barr, 327.-McDowell v. Potter, 8 id. 191.-Gochenaur's Estate, 23 Penn. St. R. 460.Mason v. McNeil, 23 Ala. R. 201.-Resor v. Resor, 9 Ind. R. 349.

Keeping these authorities in view, and looking at the finding of the Court below, and the evidence which sustains that finding, I dissent from the conclusion arrived at by this Court, namely, that the several acts of the parties, based upon that agreement and heretofore stated, "operated as a reduction to the husband's possession, of money to which he was entitled in right of his wife." This implied or constructive reduction to possession could not exist, in the case at bar, because the intention, upon the part of the husband, to so act, was, so far as the record speaks, entirely absent, at the time he took the deed to the land, and thereby received, in that form, the fund which had been the separate property of the wife. He received it, as we have seen, under an agreement which, I believe, in equity, constituted him a trustee of the property for her use. He could not afterwards, in my opinion, by his own act, change the relation which he bore to the property and the person for whose use he held it, so far as to then make it his own; for the reason that to permit him to do so would be opening the door to a wide field of fraud upon the rights of persons for whose use property is held, and who would thus, without their consent, be deprived of it

V.

Nov. Term, by those standing in a fiduciary capacity towards them. 1859. Having received the property, as a trustee, all his acts, MILLER in reference thereto, must conform to, and be presumed BLACKBURN. to be intended by him to carry out in good faith, that trust; unless that relation should be afterwards changed. The circumstances of the case at bar are such that I am not aware of anything that could have intervened to have changed that relation, unless it might be a subsequent agreement made between him and his wife in reference thereto. How far such an agreement, if made, might have been binding upon her, it is not necessary to inquire, as none such was established.

Having thus shown that the said Amy Blackburn had the right, before her marriage to Robert Miller, to certain legacies, as her own separate property; that the marriage did not, of itself, vest that property in him; that up to the time the deed to the land in controversy was made to him, he had not reduced her property to possession; that by the agreement then made, the intention of the parties was manifested that it should remain her separate property, though vested in his name, but for her use; the only inquiry now to be made is, whether these several propositions were established by legitimate evidence.

It is insisted by the appellants, that the trust, to have been operative, should have been in writing. In this a majority of the Court concur, and make the whole case turn upon that question.

The appellants rely mainly upon the case of Irwin v. Ivers, 7 Ind. R. 308. The facts in that case were that the father and mother of the parties held a certain demand for money, &c., also a tract of land in Ohio, both of which they transferred, by proper instruments in writing, absolute on their face, to the defendant, their son, who sold the land and collected the money. His brothers and sisters sued, charging that he held it in trust for all the children, &c. The charge was sustained by parol evidence. Court held that the parol evidence varied materially both the assignment and the deed, and proved a specific trust, verbally declared, and, therefore, void under the statute.

The

1859.

V.

In that case, the Court also held "that a resulting or im- Nov. Term, plied trust need not be in writing, and [might] be proved by parol, even against the face of the deed or the answer MILLER of the trustee, is a principle too plain to admit of contro- BLACKBURN. versy." The Court held further, as I construe the opinion, that there was no implied or resulting trust, for two reasons; first, that where a trust was declared, there could be no room for implication; and, second, that no money had been advanced by the cestui que trust.

From the facts in the case, as stated, proved, and found by the Court, it will be at once seen that the second reason given by the Court, in the case cited, has no application in the case at bar. Here the money was all advanced by Amy Miller, or her guardian for her, out of her separate property, as I maintain, for I cannot concur in the conclusion of the Court that the legacy, &c., was not her separate property after marriage. It is necessary to inquire how far she had the right to control it against her husband's will, or without his consent; for the facts in the case, and the finding of the Court, show, that whatever control she may have exercised over it, was with his full consent as to the disposition thereof; and in such an instance, the authority of STORY, § 1391, is, that he is concluded by that consent, and of course his heirs also. But there are many authorities fully sustaining the position, that a legacy or distributive share of a wife, in the hands of an executor or guardian of the wife, is, before marriage, and continues after marriage to be, her separate property, until reduced to the actual possession of the husband. 5 Ves. 737.-1 Lead. Cas. in Eq., 333, 352.-19 Verm. R. 410.-2 Kent's Comm., p. 146.-1 Ves. 186.-9 N. Hamp. R. 309.-12 id. 164.-6 Met. 537.-6 Johns. Ch. 178.-5 id. 198.-10 Verm. R. 446.-24 id. 396.

A broad distinction, as it appears to me, exists between the case in 7 Ind. and this, in other respects. That was a case in which a specific trust might have been very properly declared by the parties to the original transaction. In this case, the grantor of the land was a stranger to the parties to the mutual arrangement, and had no interest

MILLER

V.

Nov. Term, whatever in declaring a trust. No writing, other than the 1859. deed from such grantor, was necessary to complete the conveyance of the land; so that neither of the parties to BLACKBURN. that agreement had an opportunity to insert such a clause in any writing then executed, or necessary to be executed, unless it should be held that a separate writing to that effect should have been executed. Such a writing, as to an innocent purchaser for a valuable consideration, it appears to me, would form no part of the deed, and could have no more force, nor be any further a notice, than the verbal agreement. It is not a case, therefore, peculiarly or positively requiring a declaration in writing, of the trust intended to be created. It is not necessary to inquire whether the first reason given by the Court in the case cited, is the law to the full extent there indicated, to-wit, that where a trust is declared there is no room for implication. See, on this point, Hill on Trustees, 116, and note. But it is clear to my mind that the facts in the case cited in 7 Ind. were so different from those in the case at bar, that it is not authority in point to sustain the position assumed by the appellant.

If this is a case in which the trust was not imperatively required to be in writing, the next question is, whether there could arise a resulting trust. That the purchase of land, and payment of the consideration-money by one person, where the deed is taken in the name of another, will raise a trust in favor of the purchaser, is a doctrine too well settled to need more than a reference to it. 2 Story's Eq., § 1201. And, going a step further, it might be safely said that there are now so many authorities and adjudicated cases, establishing the doctrine that a trust results to the wife, where the husband buys land with her separate property or the savings of her separate estate, that it can scarcely be classed among questions open to controversy. See 1 Johns. Ch. 450; 3 id. 77; 1 Johns. (Md.) Ch. 523; 1 Sandf. Ch. 214; 15 Verm. R. 525; 24 id. 375; 23 L. J. Ch. 890; 14 Ill. R. 505; 10 Hare, 209; and also the cases in our own Court heretofore cited.

That an implied or resulting trust may be established

1859.

MILLER

V.

by parol evidence, has been so often decided by this Court, Nov. Term, that it is too late now to insist upon the adoption of any other rule of evidence in relation to that point. Indeed, the change of the rule, in that respect, at this day, would BLACKBURN. overrule many adjudicated cases, beginning as far back as Elliott v. Armstrong, 2 Blackf. 198, and continuing down through Jenison v. Graves, id. 440; Blair v. Bass, 4 id. 539; Baker v. Leathers, 3 Ind. R. 558; Fausler v. Jones, 7 id. 277; Barnett v. Going, 8 Blackf. 285; Totten v. Mc Manus, 5 Ind. R. 408; Resor v. Resor, 9 id. 347; and many other cases that might be referred to.

If this current of decisions is sustained, it follows that of a mere resulting trust parol evidence was properly received. That this was a resulting trust I entertain no doubt.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

R. C. Gregory, A. Thompson, and J. Ristine, for the appellants.

J. E. McDonald and S. C. Willson, for the appellee.

MILLER and Others v. BLACKBURN.

ON PETITION for a Rehearing.

WORDEN, J.-Each of the other members of the Court having delivered opinions in this cause when it was decided, it may not be improper for me now to state briefly why, in my opinion, the judgment below should be reversed, and consequently why the petition for a rehearing should be overruled.

The general facts of the case need not be here re-stated, but a portion of the complaint may be adverted to, as well as the findings of the Court in relation to the points, presenting the merits of the controversy.

Tuesday,
May 15, 1860.