Walker, J.
The appellant in this court brought her-suit as plaintiff below to establish her right to a resulting trust in certain lands described in petition, situated in the county of Nacogdoches. The petition was filed -on the sixth day of February, A. D. 1865, and such proceedings were thereinafter had as resulted in a mistrial on the fifth of February, 1869. On March 3,1871, the cause was again tried to a jury, and resulted in a verdict and judgment for the defendants, from which .an appeal is taken to this court. The cause has been managed in the court below with unusual ablity on the part of counsel, both for plaintiff and defendant; nor -does it appear from the record that the court, before whom the case was tried, is at all deficient in a knowledge of the law applicable to the case; and yet our .attention has been seriously occupied with that portion of the charge found on page thirty-seven of the record, a portion of which reads as follows: “Proof of the admissions of Summers, the grantee in the deed, he being now dead, are not (is not) sufficient proof of the fact that the purchase was made with his daughter’s money; there must be other facts and circumstances in proof corroborating the truth of such admissions, so as to establish the main fact to a reasonable certainty.” We do not deny but that this doctrine was once supported by able authority. And for the purpose of showing how far the court below may have been misled by the opinions of an able writer on “Uses and Trusts,” .as well as some earlier decisions; and for the purpose of declaring what we deem the rule now to be, we will introduce a few paragraphs from “Lewin on Trust and Trustees.” “Shouldthe nominal purchaser deny the trust by his answer, there seems to be no reason why [47]*47parol evidence should not be admitted to establish the fact against him; for, before the Statute of Frauds, parol evidence was undoubtedly admissible, and, as trusts by operation of law are expressly excepted from the statute, by what rule is parol evidence to be excluded % ’ ’ In Bartlett v. Pickersgill, 1 Ed. 515, where the defendant denied the trust, Lord Henley said, if the plaintiff had paid any part of the purchase money, he would have admitted the evidence; and see Edwards v. Pike, 1 Ed, 267. Mr. Sanders (Uses and Trusts, C. 3, § 7, Div. 2) dissents from the doctrine ; but the authorities cited by him to the contrary"do‘not appear to warrant his conclusion. But the solemnity of the defendant’s oath will of course require a considerable weight of evidence to overcome its impression. (See Cooth v. Jackson, 6 Ves. 39.) It is laid down by Mr. Sanders, that “if a person at his death leave any papers disclosing the real circumstances of the case, the court will raise the trust, even against the express declaration of the purchase deed. (Uses and Trusts, C. 3, § 7, Div. 3.) We have seen that, according to the latest authorities, parol evidence is, in ordinary cases, admissible against the language of the purchase deed ; but if Mr. Sanders’ opinion to the contrary (Uses and Trusts, C. 3, § 7, Div. 3) were well founded, it does not appear how mere papers would satisfy the requisitions of the statute ; for, to have that effect, the writings ought also to be signed by the party. The cases of Ryall v. Ryall, Amb. 413, and Lane v. Dighton, Amb. 409, which are cited for the position, do not at all turn upon the distinction suggested.
It is observed by the same writer, that “after the death of the supposed nominal purchaser, parol proof alone can, in no instance, be admitted against the express declaration of the deed” (Uses and Trusts, C. 3, [48]*48§ 7, Div. 2); but the cases relied upon in support of this doctrine (Kirk v. Webb, Pr. Ch. 84; S. C. Freem. 229; Heron v. Heron, Pr. Ch. 163; Walcott v. Markant, id. 168; Kinder v. Miller, id. 172; S. C. 2 Vern 440; Deg v. Deg, 2 P. W. 414, per Lord King,) do not distinguish between proofs in a person’s lifetime and after his decease ; they are certainly authorities for the exclusion of parol evidence universally; but in this respect, as before noticed, they have been subsequently overruled. It would seem, upon principle, that the death of the nominal purchaser cannot affect the admissibility of parol testimony, whatever effect it may have in detracting from its weight; and we think this is the rule which must be recognized by this court. In the case of Cuney v. Dupree, 21 T. R., on page 219, Justice Roberts, in delivering the opinion of the court, says : “ For the greater security of property our laws-require contracts for the sale of slaves and lands to be in writing. (Hart. Dig. Art. 1451.) It has been held, that although reduced to writing, a verbal trust may have been annexed to the contract. To be enforced, however, a rule of equity requires that it shall be established with clearness and certainty. Otherwise men would have no security that contracts would stand after they had been reduced to writing with the greatest consideration and solemnity. So guarded have the rules been on this subject, that such verbal trust will not be ' held to have been clearly and certainly established by the direct testimony of one witness swearing to the admissions of the alleged trustee, unless his testimony be confirmed by corroborating circumstances.”
The cases of Miller v. Thatcher, 9 T. R. 482; Mead v. Randolph, 8 T. R. 191, and McClenny v. Floyd, 10 T. R. 159, are referred to in approbation of this opinion.
We also concur in the antecedent opinions of this. [49]*49courtbut we deem it not unwise to suggest that too strict an adherence to stringent and rigid rules, as formerly laid down by the courts of England, might result in the same vice in our jurisprudence which has been so carefully guarded against, by enabling fraudulent trustees to cover up and conceal from their cestuis que trust, the interests to which they are in justice and equity entitled.
We quote with great approbation the opinion of" Chancellor Kent in J. & H. Boyd v. McLean and wife, (1 Johnson’s Chancery R., top page, 245) ; also, Bottsford v. Burr (id., 440). In these cases the doctrine of resulting trust is most ably expounded. In the former-case, the Chancellor uses this language: 1 ‘ This parol evidence is admissible, not only against the face of the deed itself, but in opposition to the answer of the trustee, denying the trustand that, it seems, after the death of the nominal purchaser.
Such evidence, however, it is remarked by the Chancellor, is to be received with great caution. This is undoubtedly the correct rule, as laid down by the late English and American authorities.
We can see, however, that the degree of caution meant should not go to the exclusion of the evidence, or the impeachment of the witness, who otherwise stands fair and unimpeached before the jury or the Chancellor.
The witness should be tried by the light of surrounding circumstances; the motive for his evidence should be examined, any special circumstances under which he testifies, his relations to the parties, his opportunity of knowing the truth of that to which he testifies, as well as his own character for truth and veracity.
As for those corroborating circumstances which are to substantiate the testimony of one witness, we find it-[50]*50difficult to lay down any rule for the government of juries. They may exist in the relation of the trustee to the cestui que trust, in their known pecuniary circumstances, in the character of the estate which forms the subject of the alleged trust.
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Walker, J.
The appellant in this court brought her-suit as plaintiff below to establish her right to a resulting trust in certain lands described in petition, situated in the county of Nacogdoches. The petition was filed -on the sixth day of February, A. D. 1865, and such proceedings were thereinafter had as resulted in a mistrial on the fifth of February, 1869. On March 3,1871, the cause was again tried to a jury, and resulted in a verdict and judgment for the defendants, from which .an appeal is taken to this court. The cause has been managed in the court below with unusual ablity on the part of counsel, both for plaintiff and defendant; nor -does it appear from the record that the court, before whom the case was tried, is at all deficient in a knowledge of the law applicable to the case; and yet our .attention has been seriously occupied with that portion of the charge found on page thirty-seven of the record, a portion of which reads as follows: “Proof of the admissions of Summers, the grantee in the deed, he being now dead, are not (is not) sufficient proof of the fact that the purchase was made with his daughter’s money; there must be other facts and circumstances in proof corroborating the truth of such admissions, so as to establish the main fact to a reasonable certainty.” We do not deny but that this doctrine was once supported by able authority. And for the purpose of showing how far the court below may have been misled by the opinions of an able writer on “Uses and Trusts,” .as well as some earlier decisions; and for the purpose of declaring what we deem the rule now to be, we will introduce a few paragraphs from “Lewin on Trust and Trustees.” “Shouldthe nominal purchaser deny the trust by his answer, there seems to be no reason why [47]*47parol evidence should not be admitted to establish the fact against him; for, before the Statute of Frauds, parol evidence was undoubtedly admissible, and, as trusts by operation of law are expressly excepted from the statute, by what rule is parol evidence to be excluded % ’ ’ In Bartlett v. Pickersgill, 1 Ed. 515, where the defendant denied the trust, Lord Henley said, if the plaintiff had paid any part of the purchase money, he would have admitted the evidence; and see Edwards v. Pike, 1 Ed, 267. Mr. Sanders (Uses and Trusts, C. 3, § 7, Div. 2) dissents from the doctrine ; but the authorities cited by him to the contrary"do‘not appear to warrant his conclusion. But the solemnity of the defendant’s oath will of course require a considerable weight of evidence to overcome its impression. (See Cooth v. Jackson, 6 Ves. 39.) It is laid down by Mr. Sanders, that “if a person at his death leave any papers disclosing the real circumstances of the case, the court will raise the trust, even against the express declaration of the purchase deed. (Uses and Trusts, C. 3, § 7, Div. 3.) We have seen that, according to the latest authorities, parol evidence is, in ordinary cases, admissible against the language of the purchase deed ; but if Mr. Sanders’ opinion to the contrary (Uses and Trusts, C. 3, § 7, Div. 3) were well founded, it does not appear how mere papers would satisfy the requisitions of the statute ; for, to have that effect, the writings ought also to be signed by the party. The cases of Ryall v. Ryall, Amb. 413, and Lane v. Dighton, Amb. 409, which are cited for the position, do not at all turn upon the distinction suggested.
It is observed by the same writer, that “after the death of the supposed nominal purchaser, parol proof alone can, in no instance, be admitted against the express declaration of the deed” (Uses and Trusts, C. 3, [48]*48§ 7, Div. 2); but the cases relied upon in support of this doctrine (Kirk v. Webb, Pr. Ch. 84; S. C. Freem. 229; Heron v. Heron, Pr. Ch. 163; Walcott v. Markant, id. 168; Kinder v. Miller, id. 172; S. C. 2 Vern 440; Deg v. Deg, 2 P. W. 414, per Lord King,) do not distinguish between proofs in a person’s lifetime and after his decease ; they are certainly authorities for the exclusion of parol evidence universally; but in this respect, as before noticed, they have been subsequently overruled. It would seem, upon principle, that the death of the nominal purchaser cannot affect the admissibility of parol testimony, whatever effect it may have in detracting from its weight; and we think this is the rule which must be recognized by this court. In the case of Cuney v. Dupree, 21 T. R., on page 219, Justice Roberts, in delivering the opinion of the court, says : “ For the greater security of property our laws-require contracts for the sale of slaves and lands to be in writing. (Hart. Dig. Art. 1451.) It has been held, that although reduced to writing, a verbal trust may have been annexed to the contract. To be enforced, however, a rule of equity requires that it shall be established with clearness and certainty. Otherwise men would have no security that contracts would stand after they had been reduced to writing with the greatest consideration and solemnity. So guarded have the rules been on this subject, that such verbal trust will not be ' held to have been clearly and certainly established by the direct testimony of one witness swearing to the admissions of the alleged trustee, unless his testimony be confirmed by corroborating circumstances.”
The cases of Miller v. Thatcher, 9 T. R. 482; Mead v. Randolph, 8 T. R. 191, and McClenny v. Floyd, 10 T. R. 159, are referred to in approbation of this opinion.
We also concur in the antecedent opinions of this. [49]*49courtbut we deem it not unwise to suggest that too strict an adherence to stringent and rigid rules, as formerly laid down by the courts of England, might result in the same vice in our jurisprudence which has been so carefully guarded against, by enabling fraudulent trustees to cover up and conceal from their cestuis que trust, the interests to which they are in justice and equity entitled.
We quote with great approbation the opinion of" Chancellor Kent in J. & H. Boyd v. McLean and wife, (1 Johnson’s Chancery R., top page, 245) ; also, Bottsford v. Burr (id., 440). In these cases the doctrine of resulting trust is most ably expounded. In the former-case, the Chancellor uses this language: 1 ‘ This parol evidence is admissible, not only against the face of the deed itself, but in opposition to the answer of the trustee, denying the trustand that, it seems, after the death of the nominal purchaser.
Such evidence, however, it is remarked by the Chancellor, is to be received with great caution. This is undoubtedly the correct rule, as laid down by the late English and American authorities.
We can see, however, that the degree of caution meant should not go to the exclusion of the evidence, or the impeachment of the witness, who otherwise stands fair and unimpeached before the jury or the Chancellor.
The witness should be tried by the light of surrounding circumstances; the motive for his evidence should be examined, any special circumstances under which he testifies, his relations to the parties, his opportunity of knowing the truth of that to which he testifies, as well as his own character for truth and veracity.
As for those corroborating circumstances which are to substantiate the testimony of one witness, we find it-[50]*50difficult to lay down any rule for the government of juries. They may exist in the relation of the trustee to the cestui que trust, in their known pecuniary circumstances, in the character of the estate which forms the subject of the alleged trust.
The father may have been known to have received money coming to his child by way of advancement, bequest, inheritance, or otherwise, and the conduct of the parties toward each other, or even the conduct of the supposed trustee, in all matters which might relate to the existence of a trust, are circumstances to be considered "by the jury. The case at bar need hardly be discussed upon this principle; for in this case there were three witnesses swearing to the declarations of Joseph W. Summers, which, if true, would have been sufficient in law to establish a resulting trust in his hands, in favor of his daughter Elizabeth to the lands in controversy.
But we have no fault to find with the verdict of the jury, on the ground that it may have been contrary to the weight of evidence.
The jury may have been justified in holding the evidence of each and all of the plaintiff’s witnesses as utterly worthless, or as having been outweighed by defendant’s evidence. The only ground upon which we are justified in reversing the judgment, is that previously indicated in this opinion.
Undoubtedly the court below gave too much significance to the circumstance of the death of the supposed trustee, Joseph W. Summers. We must adopt the rule as previously quoted from Mr. Léwin’s work on Trusts and Trustees. If one, claiming the benefit of a trust, should appear to sleep upon his rights, waiting for the death of one upon whom he intends to charge a resulting trust, it would doubtless be a circumstance of great [51]*51weight upon the mind of the jury in determining the validity of the claim.
Those who represent a deceased trustee, it is true, are deprived of the benefit of his answer; but we cannot attach much importance to the answer of the trustee, who may, by clear and satisfactory parol evidence, be proved to have fraudulently concealed the trust from those entitled to its use.
Lord Coke has defined trust as “a confidence reposed in some other,” annexed in privity to the estate of the land, and to the person, touching the land, for which cestui que trust has no remedy but by subpcena in chancery. Originally, the faith and integrity of the trustee formed the only guarantee for the due execution of the trust; and in case of implied trust, such is yet to a great extent the fact—their due and proper execution must be left to the honor and integrity of the trustee.
Men have doubtless grown much wiser since the reign of Richard II, but we may well doubt if their morals have greatly improved. It was in this reign that Chancellor Waltham, Bishop of Salisbury, originated the writ of subpoena, by which the trustee could be brought into chancery to answer the charges and allegations of his cestui que trust; and we are told by Mr. Lewin, that so soon as this remedy was given, one half the lands in the kingdom of Great Britain vested in feoffees to uses.
Being somewhat familiar with the history of trusts, and knowing the salutary remedial agency which courts of equity have afforded in relieving against the frauds which would have otherwise grown out of them, we are not disposed to close the door against fair and impartial investigation; nor do we intend to relax the rule which we think has been established by an enlightened judiciary. For the reasons given in this opinion, the judg[52]*52ment of the district court is reversed and the cause remanded.
Reversed and remanded.