Bliss v. Bliss

119 P. 451, 20 Idaho 467, 1911 Ida. LEXIS 132

• Court: Idaho Supreme Court
• Decided: November 2, 1911
• Status: Published

Opinions

AILSHIE, J.

This action was instituted praying a judgment and decree declaring Friend J. Bliss and Adelaide Bliss trustees of the proceeds of a certain life insurance policy for the use and benefit of the plaintiffs, Ida Bliss and Naomi Bliss, a minor. Ida Bliss is the surviving widow of one Ezra Ray Bliss, now deceased, and Naomi Bliss is the daughter and minor child of Ida Bliss and Ezra Ray Bliss. The appellants, Friend J. Bliss and Adelaide Bliss, are the father and mother of Ezra Ray Bliss, deceased. On the 23d day of June, .1904, Ezra Ray Bliss, being then unmarried, took out a life insurance policy in the Bankers’ Reserve Life Co. of Omaha, Neb., for $5,000, and caused his father and mother, the appellants herein, to be named as the beneficiaries under that policy. Thereafter and on the first day of January, 1907, Ezra Ray Bliss was married to the respondent, Ida Bliss. Thereafter and on the first day of November, 1907, there was born to respondent, Ida Bliss, and Ezra Ray Bliss, a daughter, Naomi Bliss, who is the other respondent in this case. The policy of insurance was deposited by Ezra Ray Bliss with the First National Bank of Emmett for safekeeping, and it remained in the custody of the bank from that time until after the death of the insured, which occurred on the 3d day of February, 1908. The policy was thereafter delivered to the appellants herein and was by them collected from the insurance company. This suit was subsequently instituted by the wife of the deceased and the infant daughter to have the beneficiaries named in the policy declared to be trustees for the use and benefit of the wife and daughter of the deceased. The trial resulted in a judgment in favor of the plaintiffs, and the defendants prosecuted this appeal.

The question to be determined on this appeal is: Was there sufficient evidence to justify the trial court in decreeing and declaring a trust in this ease, and does the evidence show that the beneficiaries named in the policy were ever constituted trustees, or did they take- the absolute title to the benefits under the policy? The evidence in the ease is entirely oral. No evidence of any trust was ever reduced to writing. The oral testimony furnished is exceedingly meager and desultory. It all revolves about and refers back to a conversation which took place between Ray, the insured, and his father, one of the beneficiaries, shortly subsequent to the birth of respondent’s child, Naomi. Ida Bliss testified that after the death of her husband her father in law told her that a short time after the birth of Naomi, when he and Ray were out duck hunting, that he approached his son on the subject of changing the beneficiaries in his insurance policy. She testifies that her father in law repeated the conversation to her as follows:

“ ‘While Ray and I were out duck hunting one time,’- — I believe it was in October or November, I am not sure which, probably September, 1907, ‘I insisted on Ray changing the policy since he had a wife now’ — and I believe it was after the baby was born. He said, ‘You have a wife and family now; you should change your policy; you can’t tell what is going to happen to you.’ And Ray said, ‘No, father, I am perfectly satisfied the way it is; I intend to leave it that way. ’ He insisted on his changing it, hut Ray said he knew — in his exact words, ‘I know you and mother will take care of my family in case of my death, and never allow them to want for anything, and you know that would be my wish.’ ”

The appellant, Friend J. Bliss, relates the conversation and transaction as follows: “At the time of my son’s death, I did not know who was named as beneficiary in the policy. The only time I ever saw the policy was when it was first made out. I knew it was made out in the first place to Mrs. Bliss and myself, but I had no further knowledge of the matter. About the 13th of November, 1907, I was going over some papers with my son and I found a policy of his in the Commercial Travelers of Chicago. It was the first I knew of this policy. I looked it over and noticed that he had made his mother the beneficiary. I said, ‘Ray, now you have a wife and child, don’t you think you had better change this and make it to your wife and child?’ He said, ‘No, papa, I want it to stand just as it is.’ He spoke so sharply and quickly that I had no further conversation with him at all. That is the only conversation I had with him at any time with reference to the beneficiary in any policy.” It will be observed that the foregoing has reference to a different policy from that in controversy in this action. This constitutes the entire transaction out of which it is claimed a trust arises.

The respondent, Ida Bliss, testified to hearing a number of conversations which took place between her husband, who was an insurance agent, and other persons with reference to his own insurance. This evidence was introduced for the purpose of showing that Ray Bliss thought his insurance was in such condition and status that in case of his death it would inure to the benefit of his wife and child. The following is a fair sample of this line of evidence: Ida Bliss testified to a conversation which took place between her husband and a Mr. Dewey as follows: “Mr. Bliss told Mr. Dewey he should have an insurance, if he did not have already, to protect his wife in case he died, the same as he was protecting his own wife. I am not sure whether Mr. Dewey had a wife or not. He was living at Pocatello at that time. .... That is the only conversation I heard between my husband and Mr. Dewey. Mr. Dewey was working for- my husband with headquarters at Pocatello, and was under the direction of my husband. My husband was manager of the company. This conversation was at our home in Pocatello. Mr. Dewey was frequently there. This was the only time I heard any conversation between my husband and Mr. Dewey relative to insurance.” Other conversations with different persons concerning which she testified were of the same general character and equally as vague and indefinite. Prominent among the list is a man named Marquis of Portland, Oregon, whose deposition appears in the record.

The only further evidence in the case on behalf of the plaintiffs was concerning the acts and declarations of the appellants subsequent to the death of their son. There is naturally a conflict between the parties as to just what was said at these various conversations. This perhaps grows out of the usual and well-known difference of construction placed by different parties upon the language used and different degrees of accuracy and memory. There is no dispute hut that many conversations took place between- them. Ida Bliss testifies to several had with the appellant, Friend J. Bliss, and perhaps an equal number with the appellant Adelaide Bliss, subsequent to the death of her husband, in which they assured her that they were going to take care of her and that she need have no worry over financial matters. For instance, she says at one time that Mr. Bliss said to her, “Ida, you don’t need to worry about your financial condition. You are well provided for. Ray has left you well provided for, and you will not want for anything as long as I live.” After the policies were collected, she says she had a talk with her father in law, Mr. Bliss, and wanted an agreement or understanding with him and asked him to give her a written agreement, and he declined to do so. He then said, “I will tell you what I will do. I will pay you $1,000 a year, $500 every six months ; and he asked me if I was satisfied-with that and I told him I was.” It seems that in pursuance of this understanding, he paid hills and accounts for her and furnished her cash to the amount of about $574. She also testifies that Mrs. Adelaide Bliss gave her like assurance as had been given her by the father in law, and she says that on several occasions Mrs. Bliss told her that she and her husband never expected to use a cent of Ray’s insurance, but that they would use it for the benefit of their son’s wife and daughter. She says that she did not know how the policies were made out until after her husband’s death.

It is clear from the evidence of both the appellant and respondent that the main consideration which was moving and prompting the father in law and mother in law, the appellants herein, was to have the daughter in law také up her residence with them. It is conceded that they were deeply interested in the baby. They were at the time building a new home which they named “Naomi,” after the granddaughter. Bay Bliss was their only child and they seemed to have been deeply affected over his loss. At every conversation which they had concerning which any testimony has been given, it seems that the question arose about Ida coming and bringing the baby and living with Mr. and Mrs. Bliss. They prepared rooms in their new home for her. It also appears that Ida Bliss was an only child, the daughter of one John Cook. Cook was a man in very good circumstances, worth about $75,000, as appears from the record. He was set down by all parties who ventured an opinion as a miser, and this was the estimate the son in law Bay placed upon him. Cook and Bay Bliss were not on good terms, and Bay appears to have cordially disliked the old man. The inference is pretty strong from this record that as soon as this insurance question came up after the death of Bay Bliss, Cook began to take a hand in the matter and urged his daughter to insist on getting hold of the insurance money. The differences and misunderstandings began to grow and were magnified from that time on. Ida refused to go and take up her residence, even for a part of the time, with the appellants. They in turn insisted on her coming and keeping the baby with them, at least a part of the time, and asked that they be permitted to provide for it and look after its education. During this time the old man Bliss was making inquiry and investigation as to where he could invest this insurance money in a permanent security such as bonds, or bank stock, that would pay a fair rate of interest or income. In the meanwhile, this action was commenced to have the beneficiaries named in the policies declared trustees and to have them removed and the money paid over to the cestuis que trust. It should be borne in mind that there is no evidence in the record and no contention is made that any conversation ever took place between Bay Bliss, the insured, and Adelaide Bliss, one of the beneficiaries named in the policy, with reference to the insurance or the disposition of any money that might ever be received under the policy, or anything of that kind. All the conversations which it is claimed ever took place prior to the death of the insured were between Ray Bliss, the insured, and Friend J. Bliss, his father, who is named as one of the beneficiaries.

Under the laws of this state, sec. 2676, Rev. Codes, if no trusteeship be established, one-half the receipts of this policy would become the separate property of the wife, Adelaide Bliss, and under the provisions of sec. 2677, Rev. Codes, she would have the management and control of her share of the proceeds from this policy, and would have the absolute power and right of disposition of the same. One-half would, therefore, go to her absolutely, and in order to impress that half with a trust the same proof is necessary as to Adelaide Bliss as is necessary with reference to Friend J. Bliss.

This action has been prosecuted on the theory that the trust was established and created by the declarations of the insured made to the beneficiary Friend J. Bliss, during the lifetime of the insured. It is only upon this theory that a recovery is sought or could be had. If, indeed, it were attempted to establish the trust by reason of the acts and declarations of the beneficiary or beneficiaries after the collection of the fund, the case would shift entirely from one of trust to one of gift, and we would then be confronted with the controlling question in such cases that a declaration of intention to make a gift, unaccompanied with a transfer or delivery of the property, is no gift at all, and cannot be enforced by the courts. It is merely the declaration of an intention, unaccompanied by the acts necessary to execute such intention. If a trust is to be established in this fund, it is necessarily an express trust declared by the insured or settlor and accepted and concurred in by the trustee, who is the beneficiary named in the insurance policy. This action has been prosecuted on that theory, and if maintainable at all, must be maintained upon that principle. Indeed, there is no element in this case of a trust arising by operation of law.

Now, we may safely proceed to the further consideration of this question upon the theory which we think is well established, that no exact words or terms are necessary to establish a trust. It is well settled, however, that no trust can arise or be implied “if there is uncertainty as to the property to be subjected to the trust or to the persons to be benefited by the trust, or as to the manner in which the property is to be applied.” (1 Perry on Trusts, sec. 116.)

In Young v. Young, 80 N. Y. 437, 36 Am. Rep. 634, the court said: “A voluntary trust must be created by the donor, and not by the court.” And again, in the same case, the court said: “Three things, it has been said, must concur to raise a trust: ‘Sufficient words to create it, a definite subject, and a definite object,’ and to these requisites may be added another, namely, that the terms of the trust should be sufficiently declared.” (See Pitts v. Weakley, 155 Mo. 109, 55 S. W. 1062.) A voluntary trust could not be complete unless there be certainty as to the property to be subjected to the trust, nor would it be complete unless there be certainty as to the cestuis que trust, nor would it be complete unless there be certainty as to the terms of the trust, or, in other words, as to the use to which the trust fund is to be applied and the manner in which it is to be used. A somewhat different rule applies with reference to implied and resulting trusts (1 Perry on Trusts, sec. 112), but with that subject we are not called upon to deal at this time.

Beach on Trusts and Trustees, see. 52, says: “In the creation of a trust in personalty, as well as in real estate, the language employed must be definite and positive. The property which is the subject matter of the trust must be clearly and definitely described; the purposes of the trust must be plainly indicated, and as well the person or persons who are to be beneficiaries. Ambiguous or vague and indefinite expressions will not be held to create a trust. In addition to this, the proof of the trust must be unequivocal. The declaration of a purpose to create a trust is of no value, and a promise to make a donation at some future time, where there is no consideration, at best Is only an imperfect gift, and will not be upheld as a trust. ’ ’

In the light of the foregoing general principles applicable to cases of this kind, we turn to the evidence in this ease to see if it is reasonably certain and definite on the principal requisites to a valid trust. In the first place, if the language used or the transaction which took place can be held or construed to look to a trust, it is reasonably certain as to the property to be administered, namely, the receipts from the insurance policy. It is likewise equally certain as to the beneficiaries of that trust, namely, Ida Bliss and her daughter, Naomi Bliss. As to the terms and conditions of the trust, however, it is by no means certain. It is conceded by all parties that it was not intended by Bay Bliss that this fund should be paid over to or handled by his wife, Ida Bliss. She was considered by all parties on account of her youth and inexperience to be an unfit person to have the handling of any considerable sum of money. It is therefore clear that the husband never intended that the money should be paid over to his wife. It is also evident that he feared if it should be paid to her that his father in law, Cook, would get hold of the money, and that was a very important consideration with him. There is no attempt to show, however, that if this money was to be used for the benefit of the wife and daughter, whether the principal was to be kept continually intact and the interest and income only used for their benefit, or whether the principal itself was to be used from time to time, and if so to what extent and in what amount.

Counsel for respondent when they commenced this action realized the necessity of definiteness and certainty as to the terms of the trust, and they therefore alleged that the money received should be “held in trust by the defendants for investment by them, and the income and proceeds of said investment provided and paid for the support and maintenance of the plaintiffs herein.” In other words, the action has been prosecuted on the theory that a trust was established whereby the beneficiaries named in the policy were to collect the money and invest it and use the income and receipts therefrom for the maintenance and benefit of the respondents. No evidence whatever was introduced to support this, except proof that the appellant Friend J. Bliss stated on different occasions after he collected the money from the insurance company that he intended to.invest it in stocks or bonds or some safe security and use the interest for the maintenance and support of the wife and daughter of his deceased son. There is nothing, however, to show or indicate that this was a part of any trust agreement or that the son in his lifetime ever mentioned such terms or conditions or indicated any such wish or desire. Again, if this were true, there is an utter lack of even suggestions or indications as to what should eventually become of the principal sum, whether that sum should eventually be divided between the cestuis que trust or become the absolute property of the trustees, or be used in the judgment and discretion of the trustees as they might think best.

The court in this case did the very thing that it is absolutely certain from the record herein that the insured never intended to happen, and that is, it ordered all this money paid over to Ida Bliss, the wife of the insured. This would result In accomplishing the very thing that the insured intended should never happen, that is, render it possible for this money to find its way into the hands of John Cook, the father in law. So we see upon the very threshold of our investigation that this so-called trust is wholly lacking as to the terms and manner of use and disposition of the fund. It might, however, be within the power of a court of equity to direct, as- the trial court did in this case, that the whole fund'be turned over to the cestuis que trust if it were clear and unmistakable from the evidence in the case that the trustor or settlor positively intended that the entire fund should be so paid over or disposed of. It is in evidence by all parties that when the father mentioned the matter to his son of changing the beneficiaries in the policy, that the son declined to do so and said, “I want it to stand just as it is.” Now, it is clear from the evidence, and no one disputes it and no circumstance refutes it, that if the son intended that the wish he expressed to his father should be imperative and mandatory and eonstitute him a trastee, Tie never completed or perfected the trust in that he never gave any directions as to the manner or method of use, payment, or disposition of the trust fund.

It has proven to be one of the most difficult problems which has confronted courts of equity to determine just when expressions of wish, hope, recommendation, or request used by a donor or trustor should be construed as imperative and obligatory or as mere suggestions to be acted upon according to the discretion of the party to whom they are directed. Such expressions have produced a fertile field of litigation in the courts of chancery of both England and this country. (Knight v. Knight, 3 Beav. 148; Berry on Trusts, secs. 113 and 114.)

In Knight v. Knight, supra, Lord Langdale said: “It is not every wish or expectation which a testator may express, nor every act that he may wish his successors to do, that can or ought to be executed and enforced as a trust; and in the infinite variety of expressions employed and of eases which arise, there is often the greatest difficulty in determining whether the act desired or recommended is an act which the testator intended to be executed as a trust.”

In Barrett v. Marsh, 126 Mass. 213, Justice Ames, speaking for the court in considering whether a testator had by his will imposed a trust, said: “It is not every expression of a wish in the interpretation of a will that is to be construed as a command, or as the creation of a trust. In order to have such an'effect, it must appear that the words used were intended by the testator to be imperative.”

In Hess v. Singler, 114 Mass. 56, the court, in considering this question, announced the following general principle as applicable in such cases: “In order,” said the court, “to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence. ’ ’ The foregoing rale was quoted with approval and followed in Sears v. Cunningham, 122 Mass. 538.

In Cheston v. Cheston, 89 Md. 465, 43 Atl. 768, the testator inserted in his will the following residuary clause: “All the rest and residue of my property, real, personal, and mixed, I give, bequeath and devise to my dear wife, Sallie C. Cheston, believing that she will manage it judiciously, and perfectly satisfied that she will make a fair distribution of it among our children at her death.” It was claimed by the children that the foregoing declaration constituted the wife a trustee of the residuary estate for the use and benefit of the children as cestuis que trust. .The court.in disposing of the question said: “The testator in so many words devises his estate to her absolutely — and then explains that he does so because he believes she will manage it judiciously and distribute it fairly. In other words, his motive for giving the estate absolutely to his wife, without making any provision for their children, is his conviction, his belief, that she will provide for them judiciously and fairly. It is as though the testator had said: ‘Believing that my wife will make a just and fair distribution of my estate, I devise the same to her. ’

“The words which, it has been suggested, may possibly create a trust in favor of Mrs. Cheston’s children, are not precatory in their character, and therefore the doctrine of precatory trusts cannot be properly applied to them. The testator makes no recommendation and expresses no wish as to the final disposition of his residuary estate to be made by the residuary devisee. He leaves that absolutely to her, because he has entire confidence in her discretion, and believes she will do what is fair and just. If this be the fair construction of the clause under consideration, we think it unnecessary to discuss the application of the doctrine of precatory trusts to the language here used.”

The foregoing case is in many respects very similar to the one under consideration. Here no change of property or position took place. No change in the policy was made in any respect. The policy already named the father and mother of the insured as beneficiaries. The policy was not at the time in the possession of either the insured or the beneficiaries, but was on deposit in the bank apparently available upon demand of either the insured or the beneficiaries. The subject of the change of beneficiaries was not mentioned by the insured, and it seems clear from the evidence that he never would have mentioned it as he did not desire any change. The discussion was brought about by the father. The insured was not prevented or delayed from making a change in the beneficiary by reason of any promise made by the beneficiary previously named. No transfer of any property or right of any expectancy was then made. The only estate then existing which could then be the subject of a trust or trust agreement was a mere expectancy in the benefits of a life insurance policy. It was not then tangible property but only an expectancy dependent upon the demise of the insured prior to that of the beneficiary. According to the evidence, the insured then informed his father, “I intend to leave it that way”; that is, the way it then existed, naming the father and mother as beneficiaries. Then he added, “I know you and mother will take care of my family in case of my death and never allow them to want for anything, and you know that would be my wish. ’ ’ This seems to indicate that the son wanted the policy paid to the father and mother and that-he was willing to rely wholly upon their discretion and sense of the needs of the wife and child in the event of the son’s death. That was a hope and expectation that the father and mother would “take care of his family in case of death and never allow them to want for anything.” It might have required, so far as they could then anticipate or foresee, a great deal more than the proceeds from the insurance policy to accomplish that end, or it might have required little or none of it whatever. It was merely the expression of a sentiment and confidence which any son might well entertain concerning his parents, and the treatment and relation he would expect them to sustain toward his own wife and child in the event of his demise. This sentiment and confidence might equally as well have been expressed had there been no insurance involved in the conversation or had there been no property belonging to the son or over which he had control or dominion referred to in such conversation.

A case very similar and very much in point is that of Pitts v. Weakley, 155 Mo. 109, 55 S. W. 1055. There the plaintiffs sought to establish a trust in stock of a corporation formed to administer their father’s property. The father, in anticipation of early demise, had caused certain stock to be delivered to the plaintiff’s sister, and the only evidence as to the terms and conditions of the delivery was an alleged statement made by the sister to whom the stock was delivered that the father when handing her the stock had told her to keep it, as it was all he had on earth, and statements made by her subsequent to the death of the father as to the terms of the delivery and the fact that she was to hold it for herself and certain of the plaintiffs. The supreme court of Missouri considered the case in detail and reviewed the evidence and the authorities bearing on the subject at great length. In discussing the character of evidence introduced in the ease and upon which it was necessary to predicate a trust, the court said:

“The plaintiff’s testimony tending to establish the trust consists entirely of the statements of witnesses as to admissions that Mrs. Weakley is said to have made. Even in ordinary lawsuits, that is not a high grade of evidence. Every text-writer on the subject treats it rather with toleration than favor. Greenleaf says: ‘With respect to all verbal admissions, it may be observed they ought to be received with great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake.’ (Greenl. Ev., sec. 200.) A note to that section by Judge Redfield is: ‘In a somewhat extended experience of jury trials, we have been compelled to the conclusion that the most unreliable of all evidence is that of the oral admissions of the party, and especially where they purport to have been made during the pendency of the action, or after the parties were in a state of controversy.’ ‘With respect to verbal admissions it may be observed they ought to be received with a great deal of caution.’ (1 Phil. Ev. 479.) ”

And in finally reaching a conclusion, the court said: “It is only upon such vague, equivocal, and shadowy testimony that the plaintiffs ask the court to establish a trust, name its beneficiaries, and define its limits. "We would have to overthrow all precedents, and disregard all rules of evidence, to do so. This we could not do, even if there was an apparent hardship in the case demanding it; but there is none such. ’ ’

The foregoing is applicable to the evidence produced in the case at bar. Here the entire case rests upon the oral statements and admissions of the parties, and those were made at times and under circumstances when they conld, out of the very nature of the case, have had but little bearing upon the specific subject of a trust here under litigation. The insured was an insurance agent and it would be only natural that he should have made the statements with reference to his own insurance where he was seeking to write insurance for others. Besides, there is nothing inconsistent between the statements he is claimed to have made and the fact of his policies running in favor of his father and mother. On the other hand, the statements attributed to the appellants herein were only natural, and might have been expected from parents in comfortable circumstances, even though there was no insurance involved and they did not anticipate receiving anything under an insurance policy. If they were financially able, as they were, they would naturally expect to contribute toward the support of their daughter in law and the education of their granddaughter. Viewing the matter from another standpoint, it is not at all improbable that the son thought it best to carry this insurance in favor of his father and mother, for the reason that his wife, Ida Bliss, was an only child of wealthy parents, and. he may have thought that in the event of his death, the father in law was amply able to take care of his wife and daughter and would do so; and if anything further should be needed, his own father and mother would contribute as the exigencies of the occasion might demand. The fact that he was an insurance agent renders it quite conclusive that he knew the rules and regulations of the company with reference to the change of beneficiary, and that had he intended to change the beneficiary either absolutely or convert the old beneficiaries into trustees, he would have done so in the manner pointed out by the rules and regulations of his company. The insured had ample opportunity to mate any change he desired to make with reference to the beneficiaries and to impose any trust or restrictions he saw fit. It appears conclusively, however, that he did not desire to make any change or alteration, and judging from the evidence as given by both sides, he never would have made any mention of the matter had not his father called it to his attention. Had nothing whatever been said about it and had no conversation taken place, it is clear there would have been no trust relations existing and no court would have assumed to declare a trust under such circumstances. In our opinion, it would be just as easy and just as consistent with well-established rules of equity to have declared a trust had none of the conversations enumerated in the record taken place as it would be for us to undertake to do so as the record stands in this case. Courts of equity may declare and enforce a trust, but they have no authority whatever to, create a trust or to make a contract for the parties where they did not see fit to make the contract themselves; nor can we impose a restriction which the parties themselves did not see fit to place upon the transaction.

We have considered it immaterial for the purposes of this case to discuss the question as to whether or not the bene-ficiaries had acquired such an interest under the policy as to render it necessary to have their consent before a new beneficiary could be named. The view we have taken of the case renders that discussion entirely useless.

•Counsel for respondent have cited us to several cases where courts have held the beneficiaries to be trustees under the expressed wish of the insured for the benefit of third parties. Among those cases the following are the leading and most prominent to which our attention has been called: Kendrick v. Ray, 173 Mass. 305, 73 Am. St. 289, 53 N. E. 823; Clark v. Callahan, 105 Md. 600, 10 L. R. A., N. S., 616, 66 Atl. 618, 12 Ann. Cas. 162; Hirsh v. Auer, 146 N. Y. 13, 40 N. E. 397, affirming 29 N. Y. Supp. 917; Hurd v. Doty, 86 Wis. 1, 56 N. W. 371, 21 L. R. A. 746; Silvey v. Hodgdon, 52 Cal. 363. No one of these cases is parallel with the case under consideration. We will briefly point out the dissimilarity.

In Kendrick v. Ray, the policy was made out, in the first place, to E. A. Taft, trustee. Neither the nature nor character of the trust nor the name of the cestui que trust appeared on the face of the policy. During the lifetime of the insured, however, he declared to the intended cestui que trust the purpose of the trust, and upon his death left written directions with his will as to the terms of the trust and the name of the cestui que trust, so there was nothing left to be determined or ascertained by the court with reference to the nature or character of the trust, and the only duty of the court was simply to declare.the trust and order it executed.

In Clark v. Callahan the certificates were transferred on specific conditions and it was shown to the satisfaction of the court in that case that the transferee, Mrs. Callahan, accepted the substitution of her own name and undertook to carry out the trust, and that this understanding was the moving consideration for Colonel Eaphun (the insured) naming the trust beneficiary and making the substitution.

In Hirsh v. Auer, at the time the policy was issued and Clara Auer was named as the beneficiary, it was agreed and understood between her and the insured that she should collect the policy upon the death of the insured and expend not to exceed $500 thereof in paying the insured’s funeral expenses and for a monument, and to divide the remaining $1,500 equally between insured’s two minor children.

In Hurd v. Doty, the real question which was considered and passed upon by the court is stated as follows in the syllabus:

“Where one, after procuring insurance on her life, payable to plaintiff, had the policy changed so as to make it payable to defendant, the latter agreeing to receive the proceeds in tru-t for plaintiff, who accordingly delivered up for cancellation the former insurance certificate, which had been delivered to him, defendant cannot, after receiving the proceeds, refuse to pay it over to plaintiff on the ground that the latter had no insurable interest in the life of deceased.”

In Silvey v. Hodgdon, 52 Cal. 363, an agreement was had between the insured and the beneficiary named in the policy prior to the issuance of the policy, that the beneficiary should be named therein solely as a trustee without any beneficial interest to accrue under the policy, and that she would collect the policy for the use and benefit of the children of the insured.

In the foregoing and other cases eited by respondent where a beneficiary has been held as trustee for the benefit of a third party, there was some specific understanding between the insured and the beneficiary or some act was done in pursuance of an express or implied trust. In most of the eases, either the policy was taken out on the faith of that understanding or the name of the beneficiary was changed and a new beneficiary substituted in pursuance of such faith and under such understanding and agreement. In every one of the cases some positive act was done or performed or the insured made some change in his position in the belief that the trustee would carry out this wish and execute such wish and desire as an imperative trust.

In the present case, the insurance had been taken out some years before the insured had either a wife or child, and the parents had been named as beneficiaries. In our opinion, the insured never thought of creating a trust or naming his parents as trustees, but rather preferred to rely on their sentiments of love and affection and the ties of consanguinity for the care, protection and maintenance by his parents of the wife and babe in event of misfortune overtaking him. Although his parents strenuously resist this action, it does not appear from this record that these old people will prove recreant to the filial faith and confidence thus reposed, or that they mean to abandon this mother and child or give them no aid or assistance. It is to be sincerely hoped that in the contest between the parents of Ray and Ida Bliss over the right to handle and expend this insurance money, the comfort and welfare of the widow and child may not be entirely ignored or disregarded. The old people, both Bliss and Cook, apparently have abundance and to spare, and both families have only this widowed daughter and grandchild on whom to bestow their care and patrimony, and it occurs to us that if they would do less quarreling and give a little more attention to the neéds of those to whom they owe a paternal duty they would get along much better.

We have been wholly unable to find any evidence in the record which would justify us in affirming the judgment in this case, unless we ignore the most fundamental rules of equity and create and define a trust for the parties which the trustor or donor declined to do himself in his lifetime.

Another thing must not be lost sight of in this case. This suit involves the benefits under an insurance contract which is one of the most sacred contracts that can be made. Such a contract is entered into by the insured in cool deliberation, and not ordinarily under stress of business exigencies or importunities of creditors or business associations. The insured names his beneficiary (a right wholly his own) for reasons wholly his own and which he is never to be called upon to explain or divulge to anyone else unless he sees fit voluntarily to disclose them. The beneficiary nominated in the policy is of the insured’s own naming, and that beneficiary should never be changed or converted into a trustee for anyone else except on clear and convincing proofs. An insurance policy and the benefits thereunder is the property of the beneficiary, and the estate of the insured has no interest whatever therein.

The judgment must be reversed, and it is so ordered, and this case is remanded for further proceedings in accordance with this opinion. Costs awarded, to appellants.

Stewart, C. J., concurs.