There is no declaration of trust, no indication of the property to be embraced within the trust, no designation of either of the plaintiffs as a beneficiary of a trust, and no declaration of the nature or quantity of the interest of the purported beneficiaries. See Seran v. Davis, 174 Okla. 433, 50 P.2d 662. Even if it be assumed that Leo Alan III is a third party beneficiary under the 1929 contract, that does not entitle him to any recovery under the first claim. All his grandmother, Helen Parkinson Neal, agreed to do was to "make provision for her children, the grandchildren of the said Frank A. Parkinson."
In summary, South Community Hospital Trust d/b/a South Community Hospital is not a public trust of the City of Oklahoma City because: Seran v. Davis, 174 Okla. 433, 50 P.2d 662, 667 (1935). G. Bogart and G. Bogert, "The Law of Trusts and Trustees," p. 127 § 161 (2nd ed. 1984).
Our further inquiry will therefore be directed to the question of whether plaintiff's action was one for the enforcement of a resulting trust. In all species of resulting trusts, intention is an essential element, although that intention is never expressed by any words of direct creation; Seran v. Davis, 174 Okla. 433, 50 P.2d 662; 54 Am.Jur. Trusts, Sec. 193. A resulting trust cannot be predicated merely on the breach of a contract; 54 Am.Jur. Trusts, Sec. 195. Stated another way: intention, although only presumed, implied or supposed in law from the nature of the transaction or from the facts and circumstances accompanying the transaction, is always an element of a resulting trust, 54 Am.Jur. Trusts, Sec. 195. There is usually no element of fraud in a resulting trust, and the presence of fraud makes the trust a constructive one; 54 Am.Jur. Trusts, Sections 193 and 218. In the case now before us, plaintiff's own uncontradicted evidence was that at the time he executed and delivered the deed in question, it was his intention that it should convey all of his one-half interest in the land to his daughters, with no reservations of any kind. Also, about five months before this suit was filed, he wrote a letter to his daughter, Sperry, in which he said "that house is as much yours and Marcia's as it is Mary's". The
Although a distribution to the heirs was ordered, it was done because there was no clause in the will which could be described as having disposed of the trust property. So, too, in the case of Seran v. Davis, 174 Okla. 433, 437, 50 P.2d 662, 666, the court stated, "'If the conveyance be by deed, the trust will result in the grantor, if it be by will, the trust will result to the testator's residuary devisees or legatees, or to his heirs or personal representatives, according to the nature of the property and of the dispositions.'" As the case excerpts indicate, the opinions in Witten, supra, and Seran, supra, can hardly be considered as cogent authority for the proposition of law recited above from American Jurisprudence.
The plaintiffs have cited numerous authorities to sustain their position but we do not think they are applicable to the case at bar. They rely on the case of Seran v. Davis, 174 Okla. 433, 50 P.2d 662, but that case is not of any help here. It involved an insurance policy where the beneficiary had been changed from a wife to another person who was to act as a trustee. There are no marks of similarity between that case and this one here.
" J.I. Case Threshing Machine Co. et al. v. Walton Trust Co. et al., 39 Okla. 748, 136 P. 769.' "See, also, Warren v. Dodrill, 173 Okla. 634, 49 P.2d 137; Seran v. Davis, 174 Okla. 433, 50 P.2d 662." Dorrance v. Dorrance, 196 Okla. 195, 163 P.2d 973.
' " To the same effect but discussed from the standpoint of a gift inter vivos is the case of Sands v. Dildine et al., 175 Okla. 520, 54 P.2d 171. Also, see Cameron v. Cameron, 96 Okla. 98, 220 P. 889, and Seran v. Davis, 174 Okla. 433, 50 P.2d 662. In the case at bar, the rejected testimony, if admitted, would not have entitled plaintiff to a judgment for the lockbox and its contents.
This would result in a trust in favor of the devisees of the mineral interests. Seran v. Davis, 174 Okla. 433, 50 P.2d 662. In Pauly v. Pauly, 198 Okla. 156, 176 P.2d 491, we held that where in such a trust the trustees disavowed and repudiated the trust, the cestui que trust was entitled to have his interest in the property conveyed to him outright.
The court, as a part of its judgment, further stated that the intention of the testator was to give to Helen Herndon ten acres of ground which surrounded his residence, and there being no conflicting descriptions, the trial court's description in setting apart a definite ten acres merely gives normal expression and force to the will. It does not conflict with any other purpose and it fixes boundaries to adjacent lands and gives finality to the whole. Under the 4th proposition the plaintiff contends that the trust provisions are void because they are not reasonably certain as to the amount each of the beneficiaries are to receive and are uncertain as to the manner in which the trust is to be performed, and cites as authority therefor, Seran v. Davis, 174 Okla. 433, 50 P.2d 662, and many cases from other states, which follow the rule in Pomeroy's Equity Jurisprudence, vol. 3, sec. 1009, as follows: "The declaration of trust, whether written or oral, must be reasonably certain in its material terms; and this requisite of certainty includes the subject-matter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quantity of the interests they are to have, and the manner in which the trust is to be performed. If the language is so vague, general or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail."
" See, also, Warren v. Dodrill, 173 Okla. 634, 49 P.2d 137; Seran v. Davis, 174 Okla. 433, 50 P.2d 662. Defendant relies on the rule that in order to establish a resulting trust the party claiming such trust must establish the same by clear, cogent, and convincing evidence.