McLaughlin, J.:
On the 24th of December, 1900, Mine. Sarah de Vaugrigneuse executed a last will and testament by which, among other things, she gave a legacy of $10,000 to her cousin Mrs. Isabella Rutherfurd and one of $20,000 to the defendant, whom she made her executor and also her residuary legatee. Mrs. Rutherfurd died on the 27th of July, 1903, and three days later the testatrix wrote a letter to the defendant — who had charge of her affairs, and knew the contents and was in possession of her will — in which, after calling attention to the death of Mrs. Rutherfurd, she, among other things, said: “Mow, remember, please, when you get hold of my will to strike out Mrs. Rutherfurd, inserting instead name of Rev. W. W. Rutherfurd and do it as soon as legality permits.” The Rev. W. W. Rutherfurd referred to in the letter is the plaintiff.in this action. Mme. de Vaugrigneuse died on the 22d of April, 1904, without having executed another will or a codicil to the one theretofore made. Shortly after her death the defendant wrote a letter to his attorney, in which he said: “Mine, de Vaugrigneuse quite recently informed me that it was her wish that the legacy mentioned in her will,' to wit, $10,000 to Isabella Rutherfurd, should be paid to [883]*883the Rev. W. W. Rutherfurd, and that from her personal effects the articles enumerated below should be given him; ” (here followed a list of the articles) and the letter concluded : “ Iiindly advise the Rev. William W. Rutherfurd of these facts.” A copy of this letter was forwarded to the plaintiff, and he subsequently received the articles specified, but the defendant declined to pay the legacy of $10,000 to him, and this action was brought to impress a trust for that amount on the residuary estate in the hands of the defendant, which it is admitted exceeds the amount of the legacy. The plaintiff had a judgment for the relief claimed and defendant appeals.
The rule, at least so far as this State is concerned, seems to be settled that where a testator is induced either to make a will or not to change one theretofore made, by a promise either express or implied on the part of a legatee that he will devote his legacy to a certain lawful purpose, a secret trust is created which a court of equity will enforce by compelling such legatee to apply the property thus obtained in accordance with the promise made. (Matter of O'Hara, 95 N. Y. 403; Amherst College v. Hitch, 151 id. 282; Edson v. Bartow, 154 id. 215.)
The question presented by this appeal is whether there was sufficient evidence to sustain the finding of the trial court that the defendant promised to pay to the plaintiff in this action the legacy of $10,000, given by the will to Mrs. Rutherfurd. Aside from the facts already stated, there was no evidence of such a promise, except that the defendant — after his attention had been called to a list left by the testatrix of articles which she desired to have given Hr. Rutherfurd and which did not refer to the $10,000 legacy — testified that as to that legacy “ that had been expressed earlier; ” and the plaintiff’s wife testified that on the day the testatrix died, or the day before, he stated to her that her husband “ was handsomely remembered in the will.” I am of the opinion that the evidence, when all of it is considered, is sufficient to sustain the finding and for that reason the judgment in favor of the plaintiff should be affirmed.
In Matter of O’Hara (supra) a testatrix gave the bulk of her estate to her lawyer, HcCne, and one other absolutely, but explained to them by a letter of instructions contemporaneous with the will that she wished them to devote her property to certain charitable [884]*884uses. Judge Finch, who delivered the opinion of the court, said ; “The finding that Judge McOue ‘made no promise to obtain the bequest or devise ’ cannot be sustained. If anything is rendered certain by the evidence it is that the testatrix made the absolute devise and bequest upon the suggestion of a necessity therefor by Judge McOue, and upon the understanding that he and his associates would faithfully and honorably carry outlier expressed intentions. If we say that McOue made no such promise, that he.came under no such honorable obligation, then we must say that the testatrix was misled into a false belief, upon which, as true, she unmistakably acted. For it is not possible to doubt that if the legatees had said—we will not promise; we will do as we please; we will not be even honorably bound not to take this money for ourselves—the absolute bequest would never have been made. It matters little that McOue did not make in words a formal and express promise. Everything that he said and everything, that he did was full of that interpretation. * * * Where in such case the legatee, even by silent acquiescence, encourages the testatrix to make a beqiiest to him to be by him applied for the benefit of others, it has all the force and effect of an express promise. (Wallgrave v. Tebbs, 2 K. & J. 321; Schultz's Appeal, 80 Penn. St. 405.) If he does not mean to act in accord with the declared expectation which underlies and induces the devise, he is bound to say so, for his silent acquiescence is otherwise a fraud. (Russell v. Jackson, 10 Hare, 204.) ”
In Amherst College v. Ritch (supra) it was said on this subject: “ While a promise is essential it need not be expressly made, for active co-operation or silent acquiescence may have the same effect as an express promise. If a legatee knows what the testator expects of him, and having an opportunity to speak, says nothing, it may he equivalent to a promise, provided the testator acts upon it.”
In the present case the fact cannot be disputed that the testatrix when she made her will did not intend that the legacy in question should ever be paid to the defendant, and it is equally clear that after the death of Mrs. Rutheffnrd, to whom this legacy had been given in her will, she desired-the same should be ¡laid to the plaintiff. Her letter to the defendant not only shows this, but his letter to his attorney immediately following the death of the testatrix also [885]*885shows it. But it is suggested by counsel for the appellant that when she wrote the letter to the defendant she had already made her will and such letter was but the expression of an intention to change it by substituting the plaintiff instead of her cousin, and there was no proof offered that she refrained from making such change because of any promise by the defendant that he would carry out her wish by paying the legacy to Mr. Rutherfurd. If the letter .which she wrote to the defendant immediately after the death of Isabella were all the evidence there would be force in this suggestion, but it is not. She left a list of the articles which she desired given to Mr. Rutherf urd, and while the legacy is not included therein the defendant himself, as already stated, testified, referring to it, “ that had been expressed earlier.” That there had been some understanding between him and the testatrix shortly before her death to the effect that this legacy would be paid to the plaintiff is evidenced by the defendant’s own letter to his attorney. In this letter he stated that she had “ quite recently informed me that it was her wish that the legacy mentioned in her will, to wit, $10,000, to Isabella Rutherfurd, should be paid to the. Rev. Wm. W. Rutherfurd.” The confidential relation existing between the defendant and the testatrix' must not be overlooked.
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McLaughlin, J.:
On the 24th of December, 1900, Mine. Sarah de Vaugrigneuse executed a last will and testament by which, among other things, she gave a legacy of $10,000 to her cousin Mrs. Isabella Rutherfurd and one of $20,000 to the defendant, whom she made her executor and also her residuary legatee. Mrs. Rutherfurd died on the 27th of July, 1903, and three days later the testatrix wrote a letter to the defendant — who had charge of her affairs, and knew the contents and was in possession of her will — in which, after calling attention to the death of Mrs. Rutherfurd, she, among other things, said: “Mow, remember, please, when you get hold of my will to strike out Mrs. Rutherfurd, inserting instead name of Rev. W. W. Rutherfurd and do it as soon as legality permits.” The Rev. W. W. Rutherfurd referred to in the letter is the plaintiff.in this action. Mme. de Vaugrigneuse died on the 22d of April, 1904, without having executed another will or a codicil to the one theretofore made. Shortly after her death the defendant wrote a letter to his attorney, in which he said: “Mine, de Vaugrigneuse quite recently informed me that it was her wish that the legacy mentioned in her will,' to wit, $10,000 to Isabella Rutherfurd, should be paid to [883]*883the Rev. W. W. Rutherfurd, and that from her personal effects the articles enumerated below should be given him; ” (here followed a list of the articles) and the letter concluded : “ Iiindly advise the Rev. William W. Rutherfurd of these facts.” A copy of this letter was forwarded to the plaintiff, and he subsequently received the articles specified, but the defendant declined to pay the legacy of $10,000 to him, and this action was brought to impress a trust for that amount on the residuary estate in the hands of the defendant, which it is admitted exceeds the amount of the legacy. The plaintiff had a judgment for the relief claimed and defendant appeals.
The rule, at least so far as this State is concerned, seems to be settled that where a testator is induced either to make a will or not to change one theretofore made, by a promise either express or implied on the part of a legatee that he will devote his legacy to a certain lawful purpose, a secret trust is created which a court of equity will enforce by compelling such legatee to apply the property thus obtained in accordance with the promise made. (Matter of O'Hara, 95 N. Y. 403; Amherst College v. Hitch, 151 id. 282; Edson v. Bartow, 154 id. 215.)
The question presented by this appeal is whether there was sufficient evidence to sustain the finding of the trial court that the defendant promised to pay to the plaintiff in this action the legacy of $10,000, given by the will to Mrs. Rutherfurd. Aside from the facts already stated, there was no evidence of such a promise, except that the defendant — after his attention had been called to a list left by the testatrix of articles which she desired to have given Hr. Rutherfurd and which did not refer to the $10,000 legacy — testified that as to that legacy “ that had been expressed earlier; ” and the plaintiff’s wife testified that on the day the testatrix died, or the day before, he stated to her that her husband “ was handsomely remembered in the will.” I am of the opinion that the evidence, when all of it is considered, is sufficient to sustain the finding and for that reason the judgment in favor of the plaintiff should be affirmed.
In Matter of O’Hara (supra) a testatrix gave the bulk of her estate to her lawyer, HcCne, and one other absolutely, but explained to them by a letter of instructions contemporaneous with the will that she wished them to devote her property to certain charitable [884]*884uses. Judge Finch, who delivered the opinion of the court, said ; “The finding that Judge McOue ‘made no promise to obtain the bequest or devise ’ cannot be sustained. If anything is rendered certain by the evidence it is that the testatrix made the absolute devise and bequest upon the suggestion of a necessity therefor by Judge McOue, and upon the understanding that he and his associates would faithfully and honorably carry outlier expressed intentions. If we say that McOue made no such promise, that he.came under no such honorable obligation, then we must say that the testatrix was misled into a false belief, upon which, as true, she unmistakably acted. For it is not possible to doubt that if the legatees had said—we will not promise; we will do as we please; we will not be even honorably bound not to take this money for ourselves—the absolute bequest would never have been made. It matters little that McOue did not make in words a formal and express promise. Everything that he said and everything, that he did was full of that interpretation. * * * Where in such case the legatee, even by silent acquiescence, encourages the testatrix to make a beqiiest to him to be by him applied for the benefit of others, it has all the force and effect of an express promise. (Wallgrave v. Tebbs, 2 K. & J. 321; Schultz's Appeal, 80 Penn. St. 405.) If he does not mean to act in accord with the declared expectation which underlies and induces the devise, he is bound to say so, for his silent acquiescence is otherwise a fraud. (Russell v. Jackson, 10 Hare, 204.) ”
In Amherst College v. Ritch (supra) it was said on this subject: “ While a promise is essential it need not be expressly made, for active co-operation or silent acquiescence may have the same effect as an express promise. If a legatee knows what the testator expects of him, and having an opportunity to speak, says nothing, it may he equivalent to a promise, provided the testator acts upon it.”
In the present case the fact cannot be disputed that the testatrix when she made her will did not intend that the legacy in question should ever be paid to the defendant, and it is equally clear that after the death of Mrs. Rutheffnrd, to whom this legacy had been given in her will, she desired-the same should be ¡laid to the plaintiff. Her letter to the defendant not only shows this, but his letter to his attorney immediately following the death of the testatrix also [885]*885shows it. But it is suggested by counsel for the appellant that when she wrote the letter to the defendant she had already made her will and such letter was but the expression of an intention to change it by substituting the plaintiff instead of her cousin, and there was no proof offered that she refrained from making such change because of any promise by the defendant that he would carry out her wish by paying the legacy to Mr. Rutherfurd. If the letter .which she wrote to the defendant immediately after the death of Isabella were all the evidence there would be force in this suggestion, but it is not. She left a list of the articles which she desired given to Mr. Rutherf urd, and while the legacy is not included therein the defendant himself, as already stated, testified, referring to it, “ that had been expressed earlier.” That there had been some understanding between him and the testatrix shortly before her death to the effect that this legacy would be paid to the plaintiff is evidenced by the defendant’s own letter to his attorney. In this letter he stated that she had “ quite recently informed me that it was her wish that the legacy mentioned in her will, to wit, $10,000, to Isabella Rutherfurd, should be paid to the. Rev. Wm. W. Rutherfurd.” The confidential relation existing between the defendant and the testatrix' must not be overlooked. He was the trustee under her father’s will, of which she was the sole beneficiary, and was the one upon whom she relied and trusted in the management of her financial affairs. When she told him, therefore, that she wished the lapsed legacy paid to the plaintiff, he having possession of her will and knowing its contents, and as she had given him a legacy of $20,000 besides making him her residuary legatee, it was his duty if he did not intend to comply with her wish and make the payment as she directed to say so. He could not remain silent, and after death had sealed her lips say that he had never promised to carry outlier wish, and by such silence take the $10,000 himself. Silence, under such cii’cumstances, was equivalent to a promise to do what she wanted done. When the will was executed the testatrix was upwards of seventy years of age, and by reason of the defendant’s intimate business relations with her he must have had some knowledge of her testamentary capacity. It may very well be that he did not deem it advisable, on account of her age and testamentary capacity, that she should, some three years thereafter, execute a new will or a codi[886]*886cil to the one theretofore made. And in this connection, it is to be noted that admission of her will to probate was opposed upon the ground of lack of testamentary capacity. Whether this was the reason why the change was not made I do not consider important. The undisputed fact, as appears from the record, is that he knew what her wishes were as to the $10,000 legacy; that she had communicated such wish to him and expected him to carry it out. To permit him now to defeat the expectation would be to sanction the commission of a fraud.
It is suggested that inasmuch as the plaintiff joined with the others in opposing the probate of the will that ought to prevent a recovery, but in the settlement which was made the plaintiff expressly reserved his right to recover* the legacy in question.
I have been unable to reach any other conclusion than that $10,000 of the residuary estate now in the hands of the defendant is impressed with a secret trust in favor of the plaintiff. The defendant’s silent acquiescence and tacit consent at least had all the force and effect of a promise solemnly made in the presence of witnesses. (Edson v. Bartow, supra, 218.) Whatever may have happened since the testatrix’s death, plaintiff has the same right to collect the legacy as if it had been given him by an express trust in the will.
The judgment appealed from, therefore, should be affirmed, with costs.
Houghton and Scott, JJ., concurred; Ingraham and Laughlin, JJ., dissented.