Winder v. Scholey

Citations

• 83 Ohio St. (N.S.) 204

Syllabus

<p>Legacy made under promise of transfer by legatee — Legatee may be declared trustee ex maleficio — Trust may be established by parol evidence — Declarations of testator, etc. — Joint legacy— Promise made by one admissible against all legatees, when— Bequest to members of lodge — Legatees prevented from converting property to own use, when — Action to have trust declared — Not barred in six years — Wills.</p> <p>1. Where a testator is induced to make an apparently absolute legacy, by a promise, express or implied, on the part of the legatee that he will transfer the legacy to another, although no express trust is created and although the legatee at the time of the promise intended no fraud, a court of equity may interfere to prevent a wrong, and declare the legatee a trustee ex maleficio for the protection of the testator’s intended beneficiary.</p> <p>2 A trust in an absolute legacy may be established by parol evidence, and the contemporaneous declarations of the testator, and subsequent declarations of the legatee, that the bequest was made for the benefit of a third person upon the promise of the legatee to hold it in trust, are admissible for that purpose.</p> <p>3. Where such legacy is a joint legacy, the trust may be established as to all of the legatees by proof that the promise was made by one in behalf of all, and the subsequent declarations of either of the legatees are admissible against all.</p> <p>4. Where a testator, desiring to leave his property to his lodge, was advised by his lawyer that he could not do so directly but that he could will it to three members of the lodge in whom he had confidence that they would do with it what he delegated to them to do, namely, to turn it over to the lodge, and he does so bequeath it to the three upon the promise of one made in behalf of all that they will transfer it to the lodge, equity may interfere to prevent the legatees from converting the property to their own use and will declare them trustees ex malefici