The opinion of the court was delivered by
Magie, C. J.
This appeal is from a decree that appellant' shall hold certain lands, the legal title to which is in her, in trust for herself and husband'during their joint lives, and for the survivor of them, [381]*381his or her heirs or assigns, and subject to an agreement on her part to devise said lands by her will to respondent, his heirs and assigns. It further enjoins her, while respondent is living, from making a will devising said lands to any other person than him, and directs that if she shall die before him her heirs and devisees shall forthwith convey said lands to him.
The parties are husband and wife.
Appellant’s appeal is from the whole decree.
The opinion of Vice-Chancellor Reed, who advised the decree, contains so full a statement of the pleadings and proofs that it will serve no useful purpose to repeat more than seems essential to make intelligible the conclusions we have reached.
The prayer of the bill of respondent was in the alternative. He asked relief by a decree that the lands in question were held by appellant in trust for him and directing a conveyance thereof to him, and also relief by a decree compelling appellant to perform an agreement to execute a last will and testament devising said lands to him, with such incidental restraints and directions as would compel such performance.
The decree does not direct a conveyance of the lands to respondent, and he has not appealed.
The lands in question were conveyed to appellant by three deeds. The first deed was made June 12th, 1890. Respondent held a contract for the tract thereby conveyed, but satisfied his contract by requesting the owners to make the conveyance to which he was entitled to his wife. He paid the whole purchase-price, and thereafter expended large amounts of his own money in erecting a dwelling-house and making improvements on that tract. The second deed was made September 2d, 1891, and the husband furnished the purchase-money. Thereafter he spent much of his money in the erection of stables and other conveniences for use in connection with the residence on the lot first conveyed. The third deed was made July 29th, 1892, and the consideration paid for it was money which had been awarded to appellant for a part of the lot first conveyed to her upon a condemnation by a railroad company.
When lands are purchased by one person, who pays the pur[382]*382chase-price, and they are conveyed to another person who is a stranger, a trust in the lands is implied or results in favor of him who has paid the consideration. But where a husband purchases and pays for lands and takes the title in the name of his wife, such a trust does not necessarily result. On the contrary, a presumption arises that the husband has caused the conveyance to be made to his wife by way of a settlement upon her. Such a presumption may be rebutted and overcome by proof of facts accompanying the transaction which show that the intention of the parties was that the lands should not be held by the wife as settled upon her, but in trust for the husband. Her subsequent acknowledgment and recognition by words or acts may be given in evidence. If from all the evidence it is clear that the presumption of settlement is rebutted, a trust will then result which can be enforced. This well-settled doctrine is illustrated in many cases in our courts. Peer v. Peer, 3 Stock. 432; Persons v. Persons, 10 C. E. Gr. 250; Lister v. Lister, 8 Stew. Eq. 49; S. C., 10 Stew. Eq. 331; Read v. Huff, 13 Stew. Eq. 229.
The appeal, therefore, first presents the question whether the proofs in the case clearly show that the presumption that these lands which were paid for by the husband were conveyed to the wife as a settlement in her favor has been overcome, and that the parties to the transaction had other intentions.
It has been already stated that the decree does not direct a conveyance to the husband under the prayer of his bill asking that relief. Although he has not appealed from the decree, it is proper' to say that the conclusion in the court below, that he was not entitled to that relief, was entirely correct. It is true that respondent testified that, before the purchase of the first lot, his wife and he had conversations which expressed the intentions of both that the title which she was about to acquire should be conveyed to him whenever he desired.
If the transaction when finally completed was with the intention thus expressed, I think a trust in favor of the husband for the whole interest in the land must have resulted. But appellant denied that such conversations took place between them, and there is no such corroboration of the husband as to justify a [383]*383determination that it is clearly made out that such was and continued to be the intent of the parties when that purchase was completed by conveyance to her.
But it is obvious from the proofs that if the previous intentions of the parties had been such as would be indicated by the conversations detailed by the husband, those intentions were changed before the completion of the transaction. The testimony of Cannon, the New York lawyer, and of respondent, and the proof of subsequent admissions made by appellant, render it entirely clear that although the land was to be conveyed to her she was to devise it to him by her last will and testament.
From this view of the evidence it results, in my judgment, that the settlement made thereby upon appellant was not of the whole estate in the land, but of a limited interest therein. It can probably be best expressed as being a settlement of a life estate in the land with a remainder in fee, contingent upon her surviving her husband. ' Therefore, there remained unsettled upon her the estate in the land which would result in case the fee was not cast upon her by the happening of the contingency contemplated. If she died before her husband the intention was that her heirs should have no interest whatever in the lands.
Since the husband paid the purchase-price, and the evidence shows with clearness that the settlement intended was limited, does a trust result with regard to so much of the estate as was not settled ?
The implication of a trust in such cases does not necessarily depend upon its affecting the whole interest in the lands in question. Thus it was held in this court that the payment of part of the purchase-money, if that part be shown with certainty, will create a resulting trust to the extent of that payment. Cutler v. Tuttle, 4 C. E. Gr. 549. So, in that class of resulting trusts which, Mr. Lewin says, arise when, upon a conveyance, devise or bequest, a trust is declared of part of the estate, and nothing is said of the residue, it is settled that the undisposedof equitable interest of the settlor will result to him or his representative. 1 Lew. Trusts *146; 1 Perry Trusts § 150. Lord Hardwicke declared that the reason why the court of [384]*384chancery had allowed a trust by operation of law to arise in that class of cases was that the party by declaring part of the trust to be for another and by saying nothing as to the other part of it, shows his intention to be that the other was to have only one part of the trust, and consequently he himself ought to have the benefit of the other part. Lloyd v. Spillet, Barn. 384.
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The opinion of the court was delivered by
Magie, C. J.
This appeal is from a decree that appellant' shall hold certain lands, the legal title to which is in her, in trust for herself and husband'during their joint lives, and for the survivor of them, [381]*381his or her heirs or assigns, and subject to an agreement on her part to devise said lands by her will to respondent, his heirs and assigns. It further enjoins her, while respondent is living, from making a will devising said lands to any other person than him, and directs that if she shall die before him her heirs and devisees shall forthwith convey said lands to him.
The parties are husband and wife.
Appellant’s appeal is from the whole decree.
The opinion of Vice-Chancellor Reed, who advised the decree, contains so full a statement of the pleadings and proofs that it will serve no useful purpose to repeat more than seems essential to make intelligible the conclusions we have reached.
The prayer of the bill of respondent was in the alternative. He asked relief by a decree that the lands in question were held by appellant in trust for him and directing a conveyance thereof to him, and also relief by a decree compelling appellant to perform an agreement to execute a last will and testament devising said lands to him, with such incidental restraints and directions as would compel such performance.
The decree does not direct a conveyance of the lands to respondent, and he has not appealed.
The lands in question were conveyed to appellant by three deeds. The first deed was made June 12th, 1890. Respondent held a contract for the tract thereby conveyed, but satisfied his contract by requesting the owners to make the conveyance to which he was entitled to his wife. He paid the whole purchase-price, and thereafter expended large amounts of his own money in erecting a dwelling-house and making improvements on that tract. The second deed was made September 2d, 1891, and the husband furnished the purchase-money. Thereafter he spent much of his money in the erection of stables and other conveniences for use in connection with the residence on the lot first conveyed. The third deed was made July 29th, 1892, and the consideration paid for it was money which had been awarded to appellant for a part of the lot first conveyed to her upon a condemnation by a railroad company.
When lands are purchased by one person, who pays the pur[382]*382chase-price, and they are conveyed to another person who is a stranger, a trust in the lands is implied or results in favor of him who has paid the consideration. But where a husband purchases and pays for lands and takes the title in the name of his wife, such a trust does not necessarily result. On the contrary, a presumption arises that the husband has caused the conveyance to be made to his wife by way of a settlement upon her. Such a presumption may be rebutted and overcome by proof of facts accompanying the transaction which show that the intention of the parties was that the lands should not be held by the wife as settled upon her, but in trust for the husband. Her subsequent acknowledgment and recognition by words or acts may be given in evidence. If from all the evidence it is clear that the presumption of settlement is rebutted, a trust will then result which can be enforced. This well-settled doctrine is illustrated in many cases in our courts. Peer v. Peer, 3 Stock. 432; Persons v. Persons, 10 C. E. Gr. 250; Lister v. Lister, 8 Stew. Eq. 49; S. C., 10 Stew. Eq. 331; Read v. Huff, 13 Stew. Eq. 229.
The appeal, therefore, first presents the question whether the proofs in the case clearly show that the presumption that these lands which were paid for by the husband were conveyed to the wife as a settlement in her favor has been overcome, and that the parties to the transaction had other intentions.
It has been already stated that the decree does not direct a conveyance to the husband under the prayer of his bill asking that relief. Although he has not appealed from the decree, it is proper' to say that the conclusion in the court below, that he was not entitled to that relief, was entirely correct. It is true that respondent testified that, before the purchase of the first lot, his wife and he had conversations which expressed the intentions of both that the title which she was about to acquire should be conveyed to him whenever he desired.
If the transaction when finally completed was with the intention thus expressed, I think a trust in favor of the husband for the whole interest in the land must have resulted. But appellant denied that such conversations took place between them, and there is no such corroboration of the husband as to justify a [383]*383determination that it is clearly made out that such was and continued to be the intent of the parties when that purchase was completed by conveyance to her.
But it is obvious from the proofs that if the previous intentions of the parties had been such as would be indicated by the conversations detailed by the husband, those intentions were changed before the completion of the transaction. The testimony of Cannon, the New York lawyer, and of respondent, and the proof of subsequent admissions made by appellant, render it entirely clear that although the land was to be conveyed to her she was to devise it to him by her last will and testament.
From this view of the evidence it results, in my judgment, that the settlement made thereby upon appellant was not of the whole estate in the land, but of a limited interest therein. It can probably be best expressed as being a settlement of a life estate in the land with a remainder in fee, contingent upon her surviving her husband. ' Therefore, there remained unsettled upon her the estate in the land which would result in case the fee was not cast upon her by the happening of the contingency contemplated. If she died before her husband the intention was that her heirs should have no interest whatever in the lands.
Since the husband paid the purchase-price, and the evidence shows with clearness that the settlement intended was limited, does a trust result with regard to so much of the estate as was not settled ?
The implication of a trust in such cases does not necessarily depend upon its affecting the whole interest in the lands in question. Thus it was held in this court that the payment of part of the purchase-money, if that part be shown with certainty, will create a resulting trust to the extent of that payment. Cutler v. Tuttle, 4 C. E. Gr. 549. So, in that class of resulting trusts which, Mr. Lewin says, arise when, upon a conveyance, devise or bequest, a trust is declared of part of the estate, and nothing is said of the residue, it is settled that the undisposedof equitable interest of the settlor will result to him or his representative. 1 Lew. Trusts *146; 1 Perry Trusts § 150. Lord Hardwicke declared that the reason why the court of [384]*384chancery had allowed a trust by operation of law to arise in that class of cases was that the party by declaring part of the trust to be for another and by saying nothing as to the other part of it, shows his intention to be that the other was to have only one part of the trust, and consequently he himself ought to have the benefit of the other part. Lloyd v. Spillet, Barn. 384.
In my judgment these principles are applicable to the case before us, and appellant, when she took the conveyance of that land with the intention that a limited interest therein should be settled upon her, took and holds the title to all interest therein not settled upon her in trust for respondent.
This is the trust, as I understand it, the vice-chancellor found established by the proofs.
What has been said so far relates to the circumstances surrounding the transaction whereby the first conveyance was made to her, and the effect on the legal title acquired by the wife.
The vice-chancellor finds in the proofs other ground to support respondent’s claim. His conclusion is that the undertaking of appellant to devise the land to respondent induced him to make the purchase and vest the title in her. The proofs show that respondent commenced to make improvements on the tract first purchased, and finding that appellant was reluctant to make the will which it had been arranged she was to make, notified her that unless she did so he would withdraw his workmen and stop the work. Delay still occurring he did withdraw the workmen, and appellant then went and executed the will which had been drawn at the same time, or shortly after the acquisition of the first title. Thereby she devised her lands to respondent y then he resumed work on the improvement and spent thereon a large sum of money.
That will continued in existence unrevoked until after the acquisition by her of the two other tracts, and after respondent’s improvements on the tract secondly conveyed.
Upon these facts it is plain that it would be inequitable to' permit appellant to disregard her agreement to devise the land to respondent, which agreement had induced respondent to pur[385]*385chase the tract first conveyed to her and to expend large sums of money upon it.
Such an agreement is an enforceable contract, and a court of equity may intervene to require its enforcement. Van Duyne v. Vreeland, 1 Beas. 142; Johnson v. Hubbell, 2 Stock. 332; Parsell v. Stryker, 41 N. Y. 480; Van Duyne v. Vreeland, 3 Stock. 370; Pftagar v. Platz, 16 Stew. Eq. 440; Davison v. Davison, 2 Beas. 246; Young v. Young, 18 Stew. Eq. 27.
In this case the contract is between husband and wife, and therefore only enforceable in equity, and as the wife has repudiated it in her lifetime, and made other testamentary disposition of the lands, the husband is justified in asking the remedial intervention of equity to prevent the violation of the agreement.
All of the court deem the trust and contract applicable to the tract first acquired and enforceable against it. A majority of the court think that the contract is also applicable and enforceable as to the tract secondly acquired. As originally made perhaps that contract might not apply to the second tract, but when recognized and continued by the unrevoked will, it operated to induce respondent to expend his money on the purchase of that tract, to join it to the first tract, and to erect the stables, tank and other conveniences for the use of the residence on the first tract.
A majority also think that the tract thirdly acquired is impressed with the trust, and subject to the agreement as having been acquired with money raised out of the first tract which was in that situation.
The result is that respondent was properly held to have been entitled to relief. It remains to consider whether the relief which was accorded him was appropriate.
But neither the trust nor the agreement of which we find evidence justifies any restriction upon the appellant in the lands during her life. The effect of both is, that so long as she lives she has the estate therein which married women now hold by statute — that is, the same estate that she would have if she were a feme sole. Should respondent die before her, her estate in the lands is discharged from the trust and from the performance of [386]*386the agreement. Should she die before him, the equitable estate in the lands vests in him, and he would be entitled to have them conveyed to him by the owners of the legal estate if she has not devised them to him.
The decree before us'goes farther, and declares that the lands are held in trust for herself and her husband during their joint lives, and for the survivor of them, his or her heirs or assigns. In respect to the provision as to the trust during their joint lives, it exceeds the trust which was intended and the agreement which was made, and it should be added it is not supported by the vice-chancellor’s opinion. This requires a reversal of the decree, and its modification so as to declare that appellant holds the lands subject to a trust in favor of the respondent, whereby, if she should die before him without devising the lands to him, an equitable estate in the lands in fee-simple would vest in him, which would entitle him to have the legal estate conveyed to him by her heirs or devisees. In other respects the decree is approved.
As this modifies the decree in a part to which no attention was directed in the argument, and which seems comparatively unimportant, no costs will be allowed upon the reversal.