Signs v. Bush's Estate

Kuhn, C. J.

(after stating the facts). We think that the situation here presented is fairly summed up in the brief of counsel for appellee in the following statement:

“Thus we have a contract that Harriet E. Bush conveyed a piece of real estate to Collier, Collier conveyed real estate to Charles W. Bush, and Bush promised to make a will leaving a bequest to two daughters of Harriet E. Bush, or their survivor (strangers to the contract), of one thousand ($1,000.00) dollars, *196 with legal interest from the date of such conveyance to ¿he date of the death of Charles W. Bush.”

The trial judge, after hearing the evidence, on motion duly made, directed a verdict for the defendant, in which he in part said:

“She (referring to Mrs. Bush) furnished the consideration; but the will was not to be made to her, made to her daughters. Her daughters were strangers to the transaction, and I believe it to be the law that no one can maintain an action of this kind upon such a promise, except it be the one who made the contract, and that was the mother of this girl. So, gentlemen, I do not think this plaintiff can maintain the action. I think that is the simple proposition; that she is not a party to the contract. She furnished no consideration. The consideration for the promise of Mr. Bush came through their mother, and the fact she had some talk with them afterwards about it I do not think is material at all. So, gentlemen, your verdict will be in this case that the claim is disallowed, and the clerk will take your verdict without your leaving your seats.”

No serious claim is made that a promise made by one person to another for the benefit of a third — a stranger to the consideration — will support an action by the latter, according to the law of this State. See Linneman v. Moross’ Estate, 98 Mich. 178 ( 57 N. W. 103 , 39 Am. St. Rep. 528 ); Wheeler v. Stewart, 94 Mich. 445 ( 54 N. W. 172 ); Edwards v. Clement, 81 Mich. 513 ( 45 N. W. 1107 ); Hicks v. McGarry, 38 Mich. 667 ; Knights of Modern Maccabees v. Sharp, 163 Mich. 449 ( 128 N. W. 786 , 33 L. R. A. [N. S.] 780); Edwards v. Thoman, 187 Mich. 361 ( 153 N. W. 806 ). But the contention is made that a trust relationship was created by this transaction, and that Charles W. Bush held the $1,000 in money in trust, and that in effect he agreed to invest it and to pay the beneficiary by his will the principal, with legal interest. There is no question raised but that the al *197 leged agreement was oral, and that there was no writing to evidence the agreement. Did the oral agreement between Charles Bush and Harriet Bush create a trust whereby Charles Bush was to hold the fund of $1,000 in trust for Grace Signs, the claimant herein?

It is stated in the brief for the appellee that if a trust existed, it must come under one of the following three subdivisions:

“First. That that portion of the farm represented by the sum of $1,000 was held in trust for claimant; or “Second. That the title to the farm having been taken in the name of Charles W. Bush, a trust resulted because of the fact that a portion of the purchase price was provided by Harriet E. Bush; or “Third. That a trust in personalty was created by the agreement, whereby Charles W. Bush was to pay the trust fund arising from the proceeds of the sale of the farm at a later time, or of a fund which was not in existence at the time that the agreement was made.”

With reference to the first subdivision, we think it is properly contended that there could be no trust created by parol as to any interest in the real estate, because the statute (4 How. Stat. [2d Ed.] § 11393, 3 Comp. Laws 1915, § 11975) provides that no trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared, unless by act or operation of law or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.

Neither could a resulting trust be created by parol under the second subdivision, because of the statute (4 How. Stat. [2d Ed.] § 10675, 3 Comp. Laws 1915, § 11571), which provides:

“When a grant or a valuable consideration shall be *198 made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance.” * * *

With reference to the third subdivision, it appears that there is no evidence in this record of any contract or express declaration of trust, written or oral, after the sale of the farm by Charles Bush. No trust could be created in the personalty until the sale of the real estate. This is not a case of a cestui que trust suing to recover from the trustee for property which she had turned over to the trustee to be invested for her, as the case of Frank v. Morley’s Estate, 106 Mich. 635 ( 64 N. W. 577 ). In this class of cases the verbal agreement was in reference to personalty then in existence and does not present the same situation which is now before us. In the case at bar the evidence does not disclose that there was any agreement whatever about the sale of the Sebewa farm. The contract with Charles Bush was to make, a will and leave $1,000 to the two daughters of Harriet E. Bush, or their survivor. Under this contract it was to be done whether he had sold the farm or not, and no reference is made to the proceeds of the sale of the farm, when sold. We conclude that there is no valid and enforceable trust created by the alleged' contract. See 39 Cyc. p. 65; Wellington v. Sedgwick, 12 Cal. 469 ; Steele v. Clark, 77 Ill. 471 ; Clark v. Wright, 24 S. C. 526; Billings v. Warren, 21 Tex. Civ. App. 77 ( 50 S. W. 625 ); Marston v. Humphrey, 24 Me. 513 . The transaction at most created a mere debt, recovery for which might be had by the proper party as claimant. See 39 Cyc. p. 73.

It is suggested that .by virtue of section 2, chap. 12, of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12353), this action could now *199 be prosecuted by the claimant, as she is the real party in interest. This section provides:

“Every action shall be prosecuted in the name of the real party in interest,” etc.

This was not in effect at the time that the claim was filed, and the claim was pending when this law went into force. It is urged that the judicature act is merely a practice act and that a practice act should be held to apply to cases pending when such act went into effect, and the case of C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316 ( 152 N. W. 95 ), is referred to, to sustain this contention. We there held that where a statute affects purely the method of applying the remedy to the rights of the parties, and not the rights themselves, even though passed subsequent to commencement of suit, it is fully applicable to all pending cases. But the situation before us is not merely a question of applying the remedy to the rights of the parties, but under the law as it existed at the time this claim was filed, the claimant had no rights arising out of the transaction against the defending estate. To hold that the statute here invoked would sustain appellant’s contention would give the claimant a right which she did not possess at the time she filed her claim. If she had had a right or a claim at that time and had pursued an improper remedy, which was subsequently recognized by statute, it would present a similar situation to that referred to in the Little Case, supra.

It is- further claimed that the contract was in effect assigned by the mother to the claimant, and that a written assignment was made by the mother to the claimant in the affidavit filed by her in support of the claim. We are of the opinion, however, that this affidavit, which recites the history of the transaction, is nothing more than a statement of the legal conclusion *200 of the mother as to the status of the claim, and should not be construed as an assignment by her to the claimant of any of her rights arising out of the transaction.

We are of the opinion that the judgment of the court below must be and is hereby affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.