Opinion
No. 39665.
May 9, 1955.
1. Deeds — wills — mental capacity — undue influence — fraud — constructive trust — evidence — insufficient to establish.
In suit by heirs asserting title to land and to cancel as clouds on title ancestor's deed of land and will devising land, on alleged grounds of mental incapacity, undue influence, and fraud in procurement thereof arising out of confidential relationship existing between grantee-devisee and ancestor, resulting in creation of constructive trust whereby recipient held property for benefit of heirs-at-law, evidence was wholly insufficient to show mental incapacity of ancestor at time of execution of instruments, or that instruments were procured as a result of undue influence exerted by recipient, or to establish a constructive trust of the land in recipient's hands.
2. Trusts — constructive — burden of proof.
In order to maintain contention that a constructive trust of lands in hands of grantee-devisee arose, heirs of testator and grantor had burden to establish by proof, facts and circumstances giving rise to the constructive trust in an extraordinary degree of certainty and clarity.
3. Trusts — constructive — fiduciary relationship — abuse of confidence.
In order for a constructive trust to be held to have arisen, the mere existence of a fiduciary relationship is not sufficient, and such relationship, plus an abuse of confidence imposed, authorizes a court of equity to construct a trust for benefit of the party whose confidence has been abused.
Headnotes as approved by Holmes, J.
APPEAL from the Chancery Court of Hinds County; L. ARNOLD PYLE, Chancellor.
Clarence R. Scales, Swep S. Taylor, Jr., Jackson, for appellants.
I. The Lower Court erred in holding that the evidence adduced on the trial of this cause was insufficient to establish a constructive trust in appellee, Mrs. Irene Summer. Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Chewning v. Gatewood, 6 Miss. (5 How.) 552; Farish v. Canton Flying Service, 214 Miss. 370, 58 So.2d 915; Hickey v. Anderson, 210 Miss. 455, 49 So.2d 713; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Mobile O.R.R. Co. v. McArthur, 43 Miss. 180; Pitts v. Mississippi Power Light Co., 177 Miss. 288, 170 So. 817; Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717.
II. The Lower Court erred in entering a decree finally dismissing appellants' original bill. Adcock v. Bank of Ellisville, 207 Miss. 448, 42 So.2d 427; Anding v. Davis, 38 Miss. 574; Benbrook v. Yancy, 96 Miss. 536, 51 So. 461; Chichester v. Chichester, 209 Miss. 628, 48 So.2d 123; Coleman v. Kierbow, 212 Miss. 541, 54 So.2d 915; Moore v. Crump, 84 Miss. 612, 37 So. 109; Pitchford v. Howard, 208 Miss. 567, 45 So.2d 142; Ragsdale v. Ragsdale, 68 Miss. 92, 8 So. 315; 54 Am. Jur., Trusts, Secs. 231-34.
III. The evidence adduced by the complainants was sufficient to raise a presumption of fraud or undue influence on the part of the appellee, Mrs. Irene Summer; and the burden is cast upon her in this case to overcome the presumption by clear, positive, and convincing evidence. The fiduciary and confidential relationship between appellee and Mr. A.F. Summer, deceased, is clearly established. Adcock v. Bank of Ellisville, supra; Benbrook v. Yancy, supra; Coleman v. Kierbow, supra; Gilpatrick v. Gidden, 81 Md. 151, 16 A. 466, 2 L.R.A. 664, 10 Am. St. 245; Ragsdale v. Ragsdale, supra; Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346; Triplett v. Bridgeforth, 205 Miss. 328, 38 So.2d 756; 54 Am. Jur., Trusts, p. 177.
Fulton Thompson, Jackson, for appellees.
I. There is no evidence in the record that Mr. Albion F. Summer deeded or devised his property to Mrs. Summer, appellee, in trust for any third person; or that the execution of the will or the deed was induced on the agreement of Mrs. Summer, appellee, to hold the property in trust for a reconveyance or any other purpose; or that there was any active conduct on the part of Mrs. Summer, appellee, to bring about the execution of the will or of the deed. Coleman v. Kierbow, 212 Miss. 541, 54 So.2d 915; Hickey v. Anderson, 210 Miss. 455, 49 So.2d 713; Partee v. Pepper, 197 Miss. 486, 20 So.2d 23.
The appellants, as heirs at law of Albion F. Summer, deceased, filed their original bill in chancery against the appellees, asserting title to an interest in certain real property in the City of Jackson, particularly described in the bill, and seeking to cancel as clouds upon their asserted title two instruments of writing, namely, a deed dated March 20, 1946, purporting to be a conveyance of the aforesaid property by Albion F. Summer to the appellee, Mrs. Irene Summer, and an instrument of writing dated January 26, 1944, purporting to be the last will and testament of the said Albion F. Summer, and containing a devise of the aforesaid property to the said Mrs. Irene Summer.
The appellants assail the validity of said instruments upon the alleged grounds of mental incapacity, undue influence, and fraud in the procurement thereof arising out of a confidential relationship existing between the said Mrs. Irene Summer and Albion F. Summer, resulting in the creation of a constructive trust whereby the said Mrs. Irene Summer should be adjudged to hold said property for the benefit of the heirs at law of the said Albion F. Summer.
The appellees filed separate answers to the original bill, denying the material allegations thereof. A jury to try the issue devisavit vel non was waived, and by agreement of the parties the entire cause was tried before the chancellor. Upon the conclusion of the evidence for the complainants, the defendants moved the court to dismiss the original bill because of the insufficiency of the evidence to sustain the allegations thereof. The chancellor sustained the motion and dismissed the bill and from this action of the chancellor the appellants prosecute this appeal.
(Hn 1) The proof is wholly insufficient to show the mental incapacity of the said Albion F. Summer at the time of the execution of the aforesaid instruments, or that they were procured as a result of undue influence exerted by Mrs. Irene Summer, and the appellants do not argue to the contrary.
The appellants contend, however, that the facts and circumstances are such as to show the creation of a constructive trust whereby the said Mrs. Irene Summer should be adjudged in equity to hold the property in question for the benefit of the legal heirs of Albion F. Summer, deceased, among whom are the appellants. (Hn 2) In order to maintain this contention, the burden rested upon the appellants to establish by proof the facts and circumstances giving rise to a constructive trust with an extraordinary degree of certainty and clarity. Stovall, et al. v. Stovall, 218 Miss. 364, 67 So.2d 391.
"A constructive trust, or, as it frequently is called, a trust ex maleficio, ex delicto, a trust de son tort, or an involuntary or implied trust is a trust by operation of law which arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy." 54 Am. Jur., Trusts, Sec. 218; Stovall, et al. v. Stovall, supra; Saulsberry v. Saulsberry, 78 So.2d 758.
In 54 Am. Jur., Trusts, Sec. 242, quoted with approval in Stovall, et al. v. Stovall, supra, we find the following: "The general rule is that a constructive trust arises where an heir, devisee, or legatee violates a promise to the testator, expressly made or inferable from words or conduct, to hold an inheritance, devise, or legacy for another or to give it to another, upon which the testator relied in the making or changing his will in order to favor such other person . . ."
There is no proof whatever that the conveyance of the property to Mrs. Irene Summer was made at her suggestion or request, or that she in any manner induced it, or that it was made by the grantor with any understanding, express or implied, that the grantee would hold the property for the benefit of the heirs, nor is there proof that Mrs. Irene Summer, the grantee in the deed, by any act, word, or deed, expressly or impliedly, led the grantor to believe that she would hold the property under the deed for the benefit of the heirs of the grantor. Neither is there proof that Mrs. Irene Summer was guilty of any fraud, actual or constructive, or of any abuse of confidence, in the procurement of the deed, or that she procured the conveyance of the property to her by commission of any wrong or by any form of unconscionable conduct, artifice, concealment, or questionable means.
(Hn 3) It is argued by the appellants, however, that fraud should be presumed under the facts and circumstances of this case because of a confidential relationship existing between her and the grantor in the deed. It is not necessary for us to decide whether such relationship existed. The mere existence of the relationship is not enough. It is the relationship plus the abuse of the confidence imposed that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.
"While the fiduciary relationship is a prerequisite to a constructive trust such as we are here considering, yet the trust does not arise until the relationship has been betrayed or violated. It is the confidential relationship plus the abuse of the confidence thus imposed, that authorizes equity to construct a trust for the benefit of the party whose confidence has been abused." Renshaw v. Tracy Loan and Trust Company (Utah), 100 A.L.R. 872.
We find no proof in this record that Mrs. Irene Summer was guilty of any abuse of confidence, if such was imposed, in her relationship with the grantor in the deed. We are accordingly of the opinion that the decree of the chancellor was correct and it is therefore affirmed.
Affirmed.
Roberds, P.J., and Hall, Lee and Ethridge, JJ., concur.