Opinion
Aug. 25, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Levi Martinez, Pueblo, for plaintiff in error.
John R. Stewart, La Junta, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
The plaintiff in error filed a claim against the estate of her deceased sister, Margaret McNulty Tombling, asserting that certain shares of stock included within the assets of such estate were held by her sister as a trustee acting on claimant's behalf. As a basis for the claim, it was also aaserted that the deceased sister had orally contracted to cause a transfer of such stock to be made to the claimant in the event claimant survived the deceased. The defendant in error, as executor of the deceased sister's estate, denied such claim, and thereafter the validity of the claim was tried to the court without a jury. From an adverse judgment the claimant has appealed.
Under the law of our jurisdiction, where one attempts to establish the existence of a constructive or resulting trust, he must do so by evidence which is clear and convincing. Botkin v. Pyle, 91 Colo. 221, 14 P.2d 187; Piggott v. Brown, 79 Colo. 11, 243 P. 626. The same burden of proof is imposed where a claimant seeks to recover from an estate under an alleged express contract. Parker v. Hilliard, 106 Colo. 187, 102 P.2d 734; and see O'Byrne v. Lawson, 110 Colo. 304, 134 P.2d 199 for compilation of cases.
Examination of the admissible evidence within the record here reveals that claimant did not meet her required burden of proof.
Judgment affirmed.
COYTE and DWYER, JJ., concur.