STOVALL v. Stovall , 218 Miss. 364 ( 1953 )

Holmes, J.

This is an appeal from an interlocutory decree of the Chancery Court of Chickasaw County rendered in the administration of the estate of William Gilbert Stovall, deceased. It involves the question as to whether or not a parol constructive trust was created for the benefit of Mrs. Katherine Fisher Stovall, the widow of the deceased, entitling her to the proceeds of a policy of insurance issued by the Pacific Mutual Life Insurance Company on the life of her deceased husband. The policy was for the face amount of $10,000, and was made payable to the executors or administrators of the estate of the insured, and was pledged by the insured to the Bank of New Albany as security for a loan. After the death of the insured, and the payment of the loan from the funds provided by the policy, the net proceeds of the policy remaining amounted to $8,376.70.

The contest is between Mrs. Katherine Fisher Stovall, the widow of the deceased, and appellee here, and Mrs. Linda Stovall Parsons and William Gilbert Stovall, Jr., children of the deceased, and appellants here. The deceased died intestate on September 7, 1950, leaving his said widow and children as his sole and only legal heirs, and leaving a personal estate of the gross amount of approximately $25,000, exclusive of the insurance here involved. The deceased had other insurance for the benefit of his said two children in the aggregate amount of approximately $12,000. After the death of the deceased, his said widow, who is the stepmother of said children, qualified as the administratrix of the estate of the said deceased. The widow’s petition for the allowance of one year’s support was granted in the amount of $3,600.00. After the death of the deceased, the administratrix collected the net proceeds of the insurance here involved and deposited the same with other funds of the estate. In due course, the administratrix filed her final account and her petition for approval and allowance of the same, and alleged in her petition that the proceeds of the Pacific Mutual Life Insurance Company policy constituted no part of the estate of the deceased but belonged to her by virtue of a gift from the deceased in his lifetime, or by virtue of a parol constructive trust created for her benefit by agreements and understanding entered into between the deceased and his said two children, and she sought an adjudication of the court accordingly.

The children answered the petition and denied that there had been any gift of the insurance to the widow by the deceased during his lifetime, and denied that any trust had been created for the benefit of the widow by any agreement and understanding between the deceased and his said children, and denied the claimed right of the widow to the entire proceeds of said insurance. The issue thus raised between the deceased’s widow and his children was tried by the court before final action on the administratrix’s final account, and after hearing the evidence on this issue, the court rendered an interlocutory decree holding that the evidence was insufficient to show a gift of the insurance to the widow by the deceased during his lifetime, but that it established a parol constructive trust for the benefit of the widow entitling her to the entire proceeds of the insurance. From this interlocutory decree, the court granted this appeal.

The evidence relied upon by the appellee to support her claim to the entire proceeds of the insurance is substantially as follows:

E. C. Stovall, Sr., a member of the law firm of Stovall and Stovall, representing the appellee as administratrix in the matter of the administration of her deceased husband’s estate, gave the following testimony:

“Q. After the death of Mr. Gilbert Stovall, did you, at any time, have a conversation with his son, William Gilbert Stovall, Jr., whom I believe is commonly referred to as ‘Bill,’ in which he discussed with you the matter of a Pacific Mutual Insurance Policy on the life of his father ?

“A. Yes, I did have a conversation with Billy, as we call William Gilbert Stovall, Jr.

“ Q. I wish you would tell us approximately when that was, where it was, and what he said to you relative to it.

“A. Well, the first conversation was the day after Gilbert’s funeral. I believe it was in the office there in Okolona and it related to his father’s estate with reference to the insurance that he left, and Billy told me that in addition to the policies for him and ‘Sis,’ why, there was a policy with Pacific Mutual Life Insurance Company that was payable to his estate and was pledged to the Bank of New Albany for a loan. That his father had told him that that policy at the bank, the Pacific Mutual Policy, was to go to Kay, and that he wanted to see to it that that was done. That when the policy was collected, the proceeds belonged to Kay; that that was the understanding.

“Q. In other words, as I understand you, Bill told you that that belonged to Kay and that was the understanding between him and his father?

“A. That’s right.

“Q. And he wanted to see to it that that went to her?

“A. That’s right.

“Q. By ‘Kay’ you are referring to Mrs. Katherine Fisher Stovall?

“A. That’s right.”

This witness further testified that the next time he discussed the matter with Bill, meaning the appellant, William Gilbert Stovall, Jr., was in a telephone conversation ; that he was in Columbus and Bill had called him from Washington, E>. C.; that he and Mr. Harvey Lee Morrison, an associate attorney in handling the administration, after they had discussed what Bill had told each of them that his father had said, drafted a letter addressed to appellee to be sent to the appellants for their signatures, reading as follows:

“November 3, 1950

“Dear Kay:

“During our father’s lifetime he told each of us that it was his wish that you have the proceeds of the Pacific Mutual Life Insurance policy, after payment of the Bank of New Albany loan, that was deposited with that bank as collateral for the loan. In other words, the policy which named his administrator as beneficiary was to be your exclusive property, less the indebtedness it secured.

“This writing is to advise you of our recognition and consent to the fact that the gift of the policy to you by our father was completed during his lifetime, and our wish that the Bank of New Albany deliver the policy to you and that you as administratrix collect the proceeds for your individual use, as above set out.

“With kindest regards from both of us, we are

‘ ‘ Affectionately,

“Mrs. Katherine Fisher Stovall

“2657 Lan Park Road

“Apartment E

“Birmingham 9, Alabama”

The witness said that this letter was sent to Bill and as it was not signed and returned, they wrote him to return the letter in order that they might proceed, and that it was in response to this that Bill telephoned him. Relating the telephone conversation, the witness said:

“Bill called and expressed hesitancy or objection to handling the distribution of the policy in that manner, as I recall, that, I believe he stated, he would rather for Kay to go on and collect the policy and then he would give her a check for his part of it, something to that effect, and then I mentioned that would be a rather circuitous method of the handling of it, or something to that effect, and then he stated, well, he wasn’t sure that his father intended to go through with what he had told him he wanted done. That he hadn’t left a will, and he thought he was going to do other things, and he supposed that his father had changed his mind. But, I asked him if his father had ever expressed to him any change of intentions after they had agreed of Kay having the policy, and he said, ‘No, he hadn’t.’ And, the conversation was left with his statement that he would be home in a week or two, something like that. It was near Christmas time then, and then he would see further about it and tend to it.”

The witness said that he again had several conversations with Bill after he returned home. The substance of these conversations was that he asked Bill if he was going to carry out his father’s intentions, to -which Bill replied: “Well, you know, Uncle Bob, I got a family that I got to look out for, and if I don’t look out for myself, nobody else will.” The witness asked him how that was related to the understanding he had with his father and he made no reply. This witness further related a conversation which he had with the appellant, Mrs. Parsons, in which he quoted her as saying that regardless of Bill’s attitude, she was going to see to it that Kay (appellee) got the insurance, “that that was her papa’s, dad’s wish.” The witness added that his conversation with Mrs. Parsons relative, to the disposition of the insurance was in substance the same as that he had had with Bill.

Harvey Lee Morrison, one of the attorneys representing the administratrix, testified that he had a conversation with Bill both before and after the funeral of the deceased in which Bill told him that his father had told him that the insurance was to go to Kay, and that Bill further said: “I want to be sure, Harvey Lee, that she gets it.” This witness further testified that Bill told him that at the time his father talked to him about the insurance he thought that his father had some writing about it. The witness said that an examination of the deceased’s papers was made to ascertain if he left a will and that none was found.

The appellee, Mrs. Katherine Fisher Stovall, testified over the objection of the appellants that in conversations which she had with Bill he told her that his father had discussed the matter of this insurance with him and his sister (Mrs. Parsons), and that his father had told them that it was his ivish that she (the witness) should have the insurance. The witness further said that Bill assured her that she need not worry about the insurance because his father had told him and his sister that it was his wish that she (the witness) was to have the policy. The witness also said that Mrs. Parsons stated to her that her father had told her that he wanted the appellee to have the insurance.

Ralph W. Beeson testified to conversations which he had with Bill in which he quoted Bill as saying that his father had told him “that the policy was Kay’s and that the proceeds were to go to her,” and that both he and his sister understood this.

Orlean Guice, a negro practical nurse, who nursed the deceased for a period of two months immediately preceding his death, testified that the deceased had told her that he had three policies, one for his son, one for his daughter, and one for his wife.

The appellee then called to the stand as adverse witnesses the appellants. The appellant, Mrs. Parsons, testified that she talked only briefly to her father with reference to the policy in question, and her father told her that he had a policy at the Bank of New Albany on which he had borrowed money, and that if agreeable to her, after the debt on it was paid, she let Kay have her share of it.

The appellant, William Gilbert Stovall, Jr., referred to in the testimony as Bill, testified that he was not clear as to what was said in the several conversations which he had with R. C. Stovall, Sr., and Harvey Lee Morrison; that what his father said to him about the policy was, “if it is all right with you and your sister, after the debt is paid, if anything happens to me, I would like for you to let Kay have it;” that when he expressed his willingness for Kay to have the insurance immediately after his father’s death, he thought that his father had left some will or writing so disposing of the insurance, but since it had developed that his father left no such will or writing, he thought that the insurance should go to the heirs.

The appellants assign as error the following:

1. That the court erred in admitting the testimony of the appellee to establish her claim against the estate of a deceased person;

2. That the court erred in holding that the evidence was sufficient to create a parol constructive trust in favor of the appellee entitling her to the entire proceeds of the Pacific Mutual Life Insurance policy.

We deem it unnecessary to decide, and we do not decide, the question of the competency or incompetency of the appellee as a witness in her own behalf since even if she were incompetent to testify upon the ground that she was seeking by her testimony to establish her claim against the estate of a deceased person, the action of the court in permitting her to testify would not constitute reversible error for the reason that her testimony was merely cumulative. Tanner v. Foreman, 212 Miss. 355, 54 So. 2d 483.

We address ourselves, therefore, to the question of the sufficiency of the evidence to establish a parol constructive trust in favor of the appellee entitling her to the proceeds of the insurance involved. The solution of this question necessitates an inquiry into the essentials of a constructive trust.

Sec. 218, 54 Am. Jur., defines a constructive trust as follows:

“A constructive trust, or, as it frequently is called, a trust ex maleficio, ex delicto, a trust de son tort, or an involuntary or implied trust is a trust by operation of law which arises contrary to intention and in invitum, against -one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. It is raised by equity to satisfy the demands of justice. However, a constructive trust does not arise on every moral wrong in acquiring or holding property or on every abuse of confidence in business or other affairs; ordinarily such a trust arises and will be declared only on wrongful acquisitions or retentions of property of which equity, in accordance with its fundamental principles and the traditional exercise of its jurisdiction or in accordance with statutory provision, tabes cognizance. It has been broadly ruled that a breach of confidence, although in business or social relations, rendering an acquisition or retention of property by one person unconscionable against another, raises a constructive trust.”

Sec. 242 of 54 Am. Jur., lays down the following general rule:

“The general rule is that a constructive trust arises where an heir, devisee, or legatee violates a promise to the testator, expressly made or inferable from words or conduct, to hold an inheritance, devise, or legacy for another or to give it to another, upon which the testator relied in the making or changing his will in order to favor such other person; but it is generally held in such cases that the proof must establish the facts and circumstances giving rise to the constructive trust with an extraordinary degree of certainty and clarity. ... It is not essential to the operation of the rule and the existence of a constructive trust under it that the heir, devisee, or legatee should have been active in procuring the inheritance, devise, or legacy, and it suffices for the purpose that by words or conduct he led the ancestor or testator to believe that the testator’s intention of benefit to another would be carried out. Furthermore, it suffices, according to some authorities, that by failure to speak when he knew the facts he led the testator to such belief.”

In Winder v. Scholey, 83 Ohio State 204, 93 N. E. 1098, 33 L. R. S. (N. S.) 995, we find the following:

“The trust springs from the intention of the testator and the promise of the legatee. The same rule applies to heirs and next of kin who induce their ancestor or relative not to make a will by promising, in case his property falls to them through intestacy, to dispose of it, or a part of it, in the manner indicated by him. Williams v. Fitch, 18 N. Y. 546; Grant v. Bradstreet, 87 Me. 583, 33 Atl. 165; Gilpatrick v. Glidden, 81 Me. 137, 2 L. R. A. 662, 10 Am. St. Rep. 245, 16 Atl. 464. The rule is founded on the principle that the legacy would not have been given, or intestacy allowed to ensue, unless the promise had been made; and, hence, the person promising is bound in equity to keep it, as to violate it would be fraud. While a promise is essential, it need not be expressly made, for active cooperation 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 be equivalent to a promise, provided the testator acts upon it. "Wlienever it appears that the testator was prevented from action by the action or silence of a legatee, who knew the facts in time to act or speak, he will not be permitted to apply the legacy to his own use when that would defeat the expectations of the testator.”

In Moore v. Crump, 84 Miss. 612, 37 So. 109, quoted in Coleman v. Kierbow, 212 Miss. 541, 54 So. 2d 915, it was held that the character of evidence necessary to prove the essentials of such constructive trust must be clear and convincing.

In Par. 620, 54 Am. Jur., the following general rule is laid down as to the character of proof required:

“The general rule is that oral proof of an express trust in realty or personalty which is not required to be in writing, or of facts giving rise to a resulting or constructive trust, must be received with caution. So reluctant are the courts to ingraft a trust by parol on the legal title to real estate, or to enforce an alleged parol trust in personal property, that there is perhaps no better-established doctrine than the one which requires a high degree of proof in order to establish the trust by parol evidence. This rule requiring an extraordinary degree or certainty of proof in this class of cases has been applied or recognized in practically all jurisdictions ...”

The general rule is further set forth in Sec. 618, 54 Am. Jur., as follows: “The general rule is that proof of a trust and of the essential elements to its existence must be made with clear and satisfactory evidence. Proof of unbinding promises or of declarations of a purpose or intention not carried out are of no value as proof of a trust, since intention, without being effected, does not create a trust. The evidence must consist of something more than loose conversations with third parties.”

Thus it is seen that in order for the appellee to maintain her claim of a constructive trust, the burden of proof was upon her to show by clear and convincing evidence the existence of the essential elements thereof. She was required, therefore, to show by this high degree of proof that her husband intended for her to have the insurance, that his children either expressly or by silent acquiescence promised him to carry out such intention, and that he relied upon them to do so, and acting upon such reliance he refrained from changing the beneficiary to his wife or assigning the policy to her, or bequeathing the proceeds to her by will or otherwise providing by writing for her to receive the proceeds of the insurance. We think that the evidence falls short of meeting the high degree of proof which was required in order to establish these essentials of the trust. It is no doubt true that at the time the deceased discussed the matter of this insurance with his children it was his wish and intention that the insurance should go to his wife. There is absolutely no proof, however, that he called upon either his son or his daughter to see to it that this intention was carried out, or that he relied upon either to carry out such intention and refrained from assigning the policy to his wife or willing it to her or otherwise providing by writing for her to receive it. The deceased did not assign the policy to his son or daughter with the request that either collect it and give the proceeds to his wife. No possession or control of the policy was ever committed to the son or daughter. Neither the policy nor its proceeds ever came into the possession of the son or daughter. In fact, after the death of the deceased, the administratrix collected the policy and deposited the proceeds with other funds of the estate. Had the deceased assigned the policy to his son or daughter with the request that either give the proceeds to the wife, and the assignee had either expressly or by silent acquiescence promised to do so, an entirely different case would be presented.

Such are the types of cases relied upon by the appellee, but they have no application to the facts of this case. All that the proof here shows, according to the evidence for the appellee, is that the father said to his children that the proceeds of this insurance was to go to his wife and that such was the understanding between them. Great reliance is had by the appellee upon the testimony that the children stated that this was the understanding. Assuming this testimony to be true, we think it clearly appears therefrom that at the time the father talked to his children, it was understood that he, the father, wanted this insurance to go to his wife, but the proof is absolutely silent as to any assumption by either the son or daughter of any duty or obligation to see to it that the wife received the insurance, or as to any reliance by the father upon his son or daughter to see to it that the wife received the insurance. We think that it is manifest from the entire evidence that the conversations which the father had with his children amounted to no more than the expression by him of a wish or desire that the insurance should go to his wife.

It is significant that the evidence shows that after the witnesses R. G. Stovall, Sr., and Harvey Lee Morrison, had discussed what the children told them their father had said, these highly capable and reputable attorneys drafted a letter addressed to the appellee to be sent to the appellants for their signatures intended to authorize the delivery of the insurance to the appellee, and beginning as follows: “During our father’s lifetime he told each of us that it was his wish that you have the proceeds of the Pacific Mutual Life Insurance Policy, . . .” It is further significant that the only quoted statement of Mrs. Parsons is that she wanted to see that Kay got the insurance, “that that was her papa’s, dad’s wish.” It is further significant that the appellee, whose competency as a witness was challenged, testified that the son told her that “he and his sister understood, that their father had discussed it with them, and they both understood that it was his loish that I should have the policy.” And further testifying as to her conversation with Mrs. Parsons, the appellee quoted Mrs. Parsons as saying that “their father had told them that it was his ivish that I was to have the Pacific Mutual policy.”

We think, therefore, that the evidence as a whole evinces no more than an expression by the deceased of a wish or desire for his wife to have the insurance. The father expressed this wish to his children and the children simply did not demur thereto. There is no proof that either of the children promised expressly or by silent acquiescence to see to it that such wish was carried out or that the father relied upon either to carry it out. The proof fails, therefore, to rise to the high standard required for the establishment of a parol constructive trust. It would be a dangerous doctrine to hold that a constructive trust had been created merely because a father told his children that he wanted this or that item of his property to go to a named individual, and that they understood that this was what he wanted and refrained from making* any response thereto. It would open a wide avenue for fraudulent claims to be made against the estates of decedents, and if of itself held to be effective to make a disposition of property would dispense with the necessity of formal testamentary disposition.

We think that the expressed willingness of the appellants for the appellee to have the insurance after the death of the deceased and before it developed that the deceased left no will or other writing is of no material aid to the solution of the problem presented. The daughter said that she was willing for the appellee to have it because that was her dad’s wish. The son said that when he expressed his willingness for appellee to have the insurance, he thought that his father had left a will or writing so disposing of it.

It is argued, however, that the chancellor’s decision is based upon his finding on the facts and that, therefore, his decision cannot be disturbed unless manifestly wrong. We recognize the uniform rule that the chancellor’s finding of facts arising out of conflicting evidence is binding on this Court unless manifestly wrong, and further that reasonable inferences or conclusions deducible from the facts in proof and adopted by the chancellor will control on appeal unless manifestly wrong. Stroud, et al. v. Loper, 190 Miss. 168, 198 So. 46. All that the chancellor found from the evidence was that the appellants, in conversations with third parties, stated that their father had told them that the insurance was to go to Kay and that that was the understanding between them. We do not hold that this finding on the facts is manifestly wrong. We adopt these facts as found by the chancellor. These facts so found by the chancellor, however, furnish only one essential element of the claimed constructive trust, and that is the intention of the deceased. , They do not clearly and convincingly supply the other elements essential to the establishment of the trust, that is to say, the promise of the children to carry out such intention, and the reliance by the deceased upon his children to see to it that such intention was carried out. In view of the high degree of proof required for the establishment of a parol constructive trust, and the requirement that proof thereof is to be received with great caution, and the further requirement that evidence sufficient to establish such trust must be clear and convincing, we are of the opinion that the facts as found by the chancellor were insufficient to warrant his inferences or deduction therefrom that all of the essentials of the claimed constructive trust were present, and we are of the further opinion that such inferences and deductions of the chancellor were manifestly wrong.

We accordingly conclude that the decree of the court below was erroneous and that it should be, and it is, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Roberds, Lee, Kyle, Arrington, and Lotterhos, JJ., concur. McGehee, G. J., and Ethridge, J., dissent. Hall, J., took no part.