Robinson v. Powell

59 A. 1078, 210 Pa. 232, 1904 Pa. LEXIS 877

Opinion

Opinion by

Mb. Justice Thompson,

The appellant undertook to impress upon a gift made to appellee a parol trust. In the statement filed by her appellant avers that on February 19,1898, Thomas Robinson, since deceased, placed in the hands of the appellee a sum of money, $29,360, upon the trust to pay the same to the appellant upon the death of decedent, and that appellee accepted the trust, received the money and agreed to pay the same to the appellant.

Thomas Robinson, who had accumulated a fortune of $250,000, died April 4, 1898. Appellee had a bank account in her name in the First National Bank of Allegheny. On February 19, 1898, decedent closed his own account with that bank and deposited in the same, to the credit of the appellee, $19,364.37, and on the same day ho credited her account with $10,000, thus crediting appellee with the total sum of $29,364.37. The last sum of $10,000 he drew from the Farmers’ National Bank of Pittsburg. Appellee’s account was to bear interest at the rate of three per cent. Her account had been running for some time previous to these two deposits, and money had from time to time been deposited to her credit. The deposit of $29,364.37 to the credit of appellee, the delivery of the bank book and the unqualified declaration of decedent to appellee in the presence of Mr. Brown, his counsel, that the money was for her “ to keep,” clearly evidence an absolute gift to her. Appellant, however, sought to strike down this gift as such and so evidenced by the writing, and so to modify it as to establish in her favor a parol trust of the money so deposited. Thomas Robinson died April 4,1898. Appellant testified that in December, 1897, he told her that he intended to leave her something, and that about this time he paid the sum of $4,800 for her on account of an indebtedness which she had contracted; that she went to see him in March, 1898, and that he was so sick that she was unable to do so. Several of appellee’s witnesses testified that decedent had declared in an emphatic manner that he had done enough for appellant and would give her no more money. One of appellant’s witnesses testified that decedent said to appellee : “ I want to leave $25,000 with you here for Annie at my death, and I do not want Thomas or anyone else to know anything about it.” He is unable to fix the date of the interview, but thought it not later than February 1, 1898. It is somewhat significant that he took occasion subsequent to the death of decedent, at the instance of appellant for whom he was acting as a quasi legal adviser, to call upon appellee. That he did so, he said, after Squire Robinson had told him a lady in Allegheny had stated to him (Robinson), that appellee had a check for that amount for appellant. It is also significant that Squire Robinson, the husband of appellant, was the executor of the decedent’s estate for more than a year before his death and never mentioned or suggested a trust to his coexecutor. The appellee testifies positively that this witness was not at decedent’s house in the year 1898, but had been there a year previous. She denies expressly that any such convei'sation took place. With the distinctive denial of the appellee, coupled with a reasonable doubt as to the interview irx questioxx, axid its date, this testimony lacked substantial weight! But at xnost it would only ixidicate an intention to do something for appellant, who was not a relative by blood but the widow of his nephew, and if he once had such intentioxi the proofs were uncontro'verted that having givexi appellant $4,800 he repeatedly declared that he would give her no more, and manifestly changed his’xnind if he ever had any intention to give her more.

Appellant substantially rested her proof of a parol trust upon the testimony of Miss Rollins. She testified that she called upon decedent about the middle of March, 1898, while decedent was in bed sick, and he said to her: “ I give Jane Powell (appellee) here the homestead and xnoxiey to keep her as long as she lives. I have also given her in her baxik account $29,360, which she is to give Annie Robinsoxi upon my death.” She states that she gave axi account of this interview to appellant in Septexnbei’, 1898, yet she was not called by appellaxit as a witness when the case was before arbitrators and whexi it was on trial once before the present one and no reasonable explanation therefor is givexi by the appellant. Her action in this regard throws around the testimony of this witness an atmosphere of suspicion axid doubt. She testifies that she called upon decedent and remained with him about fifteen minutes and this was the only time she had ever called upon him. The evidence shows that at that time decedent was so ill that strangers were not admitted to see him. There is no proof whatever corroborating her in regard to the visit in question, and appellee testifies that she was not at the house at that date or any other date and had never visited the house. That during the three weeks prior to decedent’s death appellee, decedent’s niece and a little girl were in constant attendance upon him. That during the last two or three weeks of his illness he was very ill and no strangers were permitted to see him. With the testimony of Miss Rollins uncorroborated as to the visit; with circumstances that point with suspicion as to its reliability; with the fact that at the time that it was alleged to have taken place decedent was in a condition of critical illness that permitted only near relatives to see him and with the clear and explicit denial by the appellee, it is plain that the proof of a parol trust was not clear, precise and indubitable. But even if doubt be raised by this testimony, it was absolutely dissipated by the testimony of Mr. Brown, the attorney of decedent. He testifies: “ He talked to me quite at length about her. He said that she had lived with him a great many years, worked hard, taken care of the home, looked after himself and brothers and he wanted to know that she would be provided for beyond any question, and in no sense dependent upon his relatives after ho was dead and gone. At the same interview he sent Jane Powell out to get the bank book and she came in with that bank book that was in her own name, as I recollect it, in that First National Bank of Allegheny, and the explanation of that was because I was remonstrating about the provision he had made for this girl, and he wanted to assure me that he had done far more than that for Jane Powell, and that bank book I recall distinctly had at least one, and I think two deposits of $10,000 each, and then on a date, which was probably in February of the same year, there was deposited the sum of $29,000 and odd dollars in cash, and when I saw the deposit I was literally amazed, and I undertook to try to persuade him that he was doing himself an injustice, that he might get well and might regret that, and that it ought to be undone, and he said no, that he wanted to be sure that she would be provided for, and it was then that he told me of the three gifts that he made to the nephews.” And again, when asked whether anything luid been said by decedent about his intending this money as a gift in trust for Annie Robinson, he replied : “ I have said to you distinctly that he informed me that he had made this deposit for Jane Powell.” When asked whether there was anything said about making provisions for Annie Robinson, he said: “Never.” “ The only expression he ever gave was the one I gave you in 1896, when he said that was the end of his gifts to her,” and in response to the question whether decedent called witness’ attention to the deposit of $29,000 he said: “Yes, sir, he did that by way of justifying the gift that he was making to this Bowers girl, and to my knowledge he gave her $20,000.”

Upon such proofs, giving the widest latitude to the vagaries of the mind, no chancellor with a gleam of intelligence would venture, upon a bill filed, to declare a parol trust in behalf of appellant.

In the case of Earnest’s Appeal, 106 Pa. 310, it was said by Mr. Justice Clark : “ In a long line of cases it has been held that to establish a resulting trust, the evidence must be clear, explicit and unequivocal; the rule is so well established that a citation of the authorities in extenso seems unnecessary. We may refer however to McGinity v. McGinity, 63 Pa. 38; Nixon’s Appeal, 63 Pa. 279; Lingenfelter v. Richey, 62 Pa. 123; Kistler’s Appeal, 73 Pa. 393; Fricke v. Magee, 10 W. N. C. 50 ; Buchanan v. Streeper, 11 W. N. C. 434.

“ Whether therefore a trust is deducible in any given case, from the nature of the transaction as a matter of actual intent, is susceptible of oral proof; but he who alleges the trust, takes the burden of establishing it, and all the essential requisites of that trust must be shown by clear, explicit and unequivocal proof.”

It is contended by the appellant that the learned trial judge erred because he cast the burden of proof upon her when he charged: “ It is a question of evidence, a question of fact to be decided by you under practically two rules of evidence: The first is that to constitute a trust here, the evidence must be clear, precise, unequivocal and satisfactory. It must be such as convinces you that there was a trust for Annie Robinson beyond a reasonable doubt. The ordinary expression is, the evidence must be indubitable. Indubitable means without doubt. That does not mean without any doubt; it means a doubt which rises from the evidence, which is reasonable and would cause an honest mind to -hesitate before arriving at a conclusion.”

The written evidence, the entries and the bank book, clearly establish an absolute gift to the appellee and the appellant undertook to change in effect that writing from such gift to a trust in her favor. When such is sought to be done the rule is well settled that the proof of it must be clear, precise and indubitable.

In the case of Cullmans v. Lindsay, 114 Pa. 166, Mr. Justice Clark said : “ The parol evidence, however, which will be effective to reform a written instrument, in such a case, must, it is said, be clear, precise and indubitable; that is to say, it must carry clear conviction to the minds of the jurors that the witnesses are credible, that the facts are distinctly remembered and are truly and accurately stated; and to the mind of the court, that if the facts alleged are true, the matters in issue are definitely and distinctly established: Spencer v. Colt, 89 Pa. 314; Honesdale Glass Co. v. Storms, 125 Pa. 268; Tritt v. Crotzer, 13 Pa. 451.

This is not a case where the rule that boob entries and bank books are not to be attacked by parol proof, but an attempt to set lip a parol trust to change the effect of a gift evidenced by the entries on' the bank books. The learned trial judge, therefore, cannot be convicted of error in charging as he did, and thus putting the burden of proof upon the appellant. It was also contended by the appellant that, owing to the relations of the appellant with the decedent, this being a gift inter vivos, the burden of proof was upon the appellee to show the fairness of the transaction. It may be said that where there are certain relations of confidence, accompanied by peculiar circumstances, a donee may be required to establish the fairness of the transaction, by which he or she is benefited: Miskey’s Appeal, 107 Pa. 611. But in the present case there was nothing in the relations that existed between the appellee and decedent to occasion any suspicion whatever, and there certainly were no circumstances whatever of a doubtful character connected with the gift in question. The decedent understood and knew exactly what he ivas doing and what he intended to do. Mr. Brown testified that decedent talked to him at length about appellee. He said that she had lived for a great many years in the family, had worked hard, taken care of him and looked after himself and his brothers. That he wanted to know that she would be provided for and in no way be dependent upon his relations after he was gone. Appellee testified that she was treated as a member of the family; that she had had charge of the house for more than thirty years without any stipulated wages and that members of the family were in the habit of depositing money to her credit. The case is therefore simply one in which the decedent, a very old man, realizing that appellee had practically devoted her life to the service of himself and his family and recognizing the value of her services, desired to provide for her in her old age against Avant in the event of his death. It is futile to argue that there are any questionable circumstances connected with the gift or any suspicions surrounding it. If so it is clear that there cannot be the slightest warrant for the suggestion that the burden of proof was cast upon her to show the fairness or the propriety of the gift.

It is also assigned for error that the learned trial judge erred in affirming the defendant’s fourth point, which point was as folloAvs: “ If the jury believe the testimony of John D. Brown, Esq., and do not believe that of Miss Rollins, the verdict must be for the defendant ” because it tended to make the case turn upon a single witness. Such Avas not the result in the present instance and clearly if the jury disbelieved Miss Rollins there was not the slightest foundation for appellant’s claim and if they disbelieved her but believed Mr. Brown, there was no evidence whatever to warrant the conclusion that a parol trust had been established.

The assignments of error are not sustained and the judgment is affirmed.