Hardman v. Orr

5 W. Va. 71

• Court: West Virginia Supreme Court
• Decided: July 15, 1871
• Status: Published

Opinion

Maxwell, J.

The appellants insist that the bill should have been dismissed upon the pleadings and proof, because there is no such trust or other equity as can be enforced.

The tract of land in the bill described was purchased by Hardman in his lifetime, by the direction of Hickman, paid for with money furnished by the said Hickman, and by his direction the conveyance was taken to the said Hardman, to be held by him for the use and benefit of Mrs. Orr, the natural daughter of the said Hickman. It is claimed that this constitutes a merely voluntary contract which cannot be enforced. If it is merely a voluntary executory contract it cannot be enforced. Story’s $q. Jur., s. 973 and 706 a and 433. When the land was paid for with the money furnished by Hickman, and the legal title vested in Hardman, the trustee, for the benefit of Mrs. Orr, a perfected and complete gift was made to Mrs. Orr, which may be enforced against the trustee, or his heirs. Story’s Eq. Jur. and 706 a; Minchin vs. Merrill, 2 Edwards, ch. R. 333; Pulvertoff vs. Pulvertoff, 18 Vesey Jr., 84; Pye, exparte, 18 Vesey, Jr., 140; Ellison vs. Ellison, 6 Vesey, Jr., 656; Bum vs. Winthrop, 1 Johnson ch. R., 329; Jeffreys vs. Jeffreys, 1 Craig & Phillips, 138. It is competent to prove the object of the trust by parol evidence, as is done in this case. Boyd vs. McLean, 1 Johnson, ch. R. 582; Bank of U. S. vs. Carrington, 7 Leigh, 566; Hill on Trustees.

This disposes of the second assignment of error, as well as the first.

There can be nothing in the objection raised that it was improper to read certain depositions in evidence against the infant defendants, with the consent of the guardian ad litem.

It is claimed that Mrs. Plardman is entitled to dower in the tract of land in dispute, and that the court erred in not assigning it to her. Mrs. Hardman is not entitled to dower in the property, as her husband held the naked legal title without any beneficial ^interest.

The decree complained of will have to be affirmed with damages and costs.

The other judges concurred.

Decree affirmed.