
    John Collins et al. v. Thomas Hope et al.
    Wills are to he construed from the written language of the instrument, not by evidence aliunde.
    Parol evidence may he received for the purpose of counteracting fraud in the devisee, and in some peculiar cases to attach a trust to the estate devised. But, in such cases, courts will act with the extremest caution.
    This is a bill in chancery reserved in the county of Ross.
    The facts in the case, as the same are disclosed by the pleadings and evidence, are as follows:
    On December 3, 1831, Nathan Reeves, then a resident of Chillicothe, made his last will and testament, and died a few *days after its execution. The will is short, and gives the whole property to the wife of the testator in the words following :
    “ It is my will and desire that, after my decease, all my estate, of every description, real and personal, be held and possessed by my beloved wife, Nancy Reeves, to her and her heirs and assigns forever, to be disposed of in such manner as she may judge best. My meaning herein is, that the residue of my estate, after payment of all debts due by me at the time of my decease, shall belong to my said wife, her heirs and assigns forever.”
    
      This will was duly admitted to probate by the court of common pleas of Ross county, on December 14, 1831.
    Nancy Reeves, the widow and general devisee, survived her husband until October 31, 1841, when she died, leaving a will, dated August 3,1835, by which she devised all that then remained of the property devised to her by her husband, to their daughter Cynthia Wells, to the childron of Cynthia, and to the children of their son, James Reeves, deceased.
    This will was duly admitted to probate, and remains uncontested.
    The complainants are certain of the testator’s grandchildren being the children of Eliza D. Collins, a daughter of the testator by his said wife Nancy, for whom no provision was made in the will of Nancy.
    They claim that their grandfather, Nathan Reeves, in November, 1831, was desirous of making his will so as to divide his property equally among his children, but in such a way as to prevent his son-in-law, James Wells, and his son, Samuel T. Reeves, who were men of dissipated habits, from controlling their portions of said estate; that he gave instructions to his attorney, Thomas Scott, to prepare a draft of the will accordingly; that during the preparation of the will the testator became very feeble, and a few days prior to his death, Mr. Scott was again sent for; that, fearing the will could not be prepared before his death, Nancy, his wife, well knowing his wishes and intentions, proposed that he should devise all the ^property to her, with the understanding that she would convey the property as he desired it should go;' that, yielding to this assurance, ho made the will in favor of Nancy, and, shortly thereafter, died. They insist that Nancy Reeves, under and by virtue of the will of Nathan Reeves, took tho estate in trust, to be equally divided, at her death, among the four children of the said Nathan, and they ask that one-fourth part thereof be decreed to them in right of their mother Eliza D. Collins, deceased.
    In support of the claim set up by complainants in their bill, but two material witnesses are introduced.
    Thomas Scott testifies, that, during the last sickness of Nathan Reeves, and about six or eight weeks previous to his death, he was sent for to the house of said Reeves, in order to write his last will; that Mr. Reeves explained to him, in the presence of Mrs. Nancy Reeves, and as witness thinks, in presence of David Col* lins, the manner in which he intended and desired to dispose of bis estate; that, although there had been some inequality in the advancements already made, his desire was that the residue of his estate should be equally divided between his children, but that ho wished his will so prepared that Mr. "Wells, his son-in-law, and bis son Samuel, should not have the control of the portions that would otherwise fall into their hands. Witness suggested that a trustee would be necessary to protect that part of the property intended for the benefit of the families of his son Samuel and his son-in-law Wells; and Mr. Reeves replied that he would try and select one. Mrs. Reeves was to have a life estate in the property. The preparation of the will was postponed to some future day; Mr. Reeves observing that ho would send for witness when he was ready to proceed.
    A short time previous to the death of Mr. Reeves, witness was again sent for to prepare his will. He appeared so feeble, and conversed with so much difficulty, that witness was fearful the will could not be prepared, in accordance with previous instructions, before he would bo incapable of executing it. Witness *then observed to Mr. Reeves, that his wife, Mrs. Reeves, knew the disposition he desired to make of his property; to which be replied in the affirmative, she being present and assenting thereto.
    Witness then asked Mr. Reeves “whether he had such confidence in his wife that, if he devised it to her, she would dispose of it in such manner as he had before indicated?” His answer yms, that he had. He consented that the will might be so drawn, transferring the property to her, and it was so drawn and executed.
    Some few days after the death of the testator, and after probate of his will, witness called on Mrs. Reeves, and urged upon her the propriety of executing an instrument, disposing of the projmrty in the manner in which her husband had desired it to be done; and she promised to execute such instrument.
    David Collins, who was the executor of Nathan Reeves, and is the father of complainants, testifies that a few days before the death of his father-in-law he was sent for, and the messenger stated that Mrs. Reeves wished to see him previous to his seeing ‘‘ the old man.”
    
      He called on her first, and was told by her that her husband wished witness to get some person to write his will; that he had spoken to Judge Scott to draw it some time before, and wished witness to go and bring him down, as the doctor said his recovery was doubtful. She also stated that “the old man” wished his projierty to be equally divided among all his children, but that she thought he was too weak to go into details in making a division, and wished witness to use his influence with her husband to induce him to will all his property to her, and she would immediately make a will carrying out his wishes.
    Witness went after Judge Scott, and in his presence Mr. Reeves stated that his wife wished him to devise all the property to her for her life, and then she would divide it among all the children, as he intended to do. Judge Scott suggested that ;the had better have his wife present, and see if she was willing to do as he wished.
    Mrs. Reeves came, and in presence of witness and Judge Scott,, promised that if her husband would will it to her, so that she could have the use and control of the property during her. life, she would then divide it equally among his heirs. -She further promised that she would, soon after his death, make her will; and Mr; Reeves requested Judge Scott to draw it for her, as he knew his wishes respecting Wells and his son Samuel. Judge Scott then wrote the will.
    William T. MoClintiok, T. Ewing, and H. H. Hunter, for complainants:
    
      The principles on which the case rests.—Assuming the truth of the testimony on the part of complainants, the equitable principles on which the case depends are comprehensively and accurately stated in the well-considered opinion of Chancellor Bland, in Colgate D. Owing’s case. Bland’s Ch. 370. The chancellor says: “If a person, before his death, communicate his intention to make or alter his will, and give a legacy or portion of his property to a certain individual or individuals, and the heir or any one else interferes, and prevents the making or alteration of a will by a promise to' pay the amount of the proposed legacy, to transfer the property, or to give something else in lieu of it to the individual or individuals thus intended to be benefited, the promise so made is binding, and being made on consideration of a loss to the individual, who may therefore enforce the specific performance of it in a court of equity.” Hoveden on Frauds; and 1 Story’s Eq., sec. 526.
    It by no means conflicts with the well-known rule, that parol testimony is inadmissible to vary, control, contradict, or explain a written will. It depends on proof extrinsic of the will, and perfectly consistent with it.
    It belongs to a peculiar class of trusts (a class which may be *said to belong to the great family of trusts which exist by operation of law)—trusts which owe their validity, not to the will or the declaration of the testator, but to the fraud of the devisee. Tn such case the trust arises ex maleficio, and therefore equity turns the holder of the legal title into a trustee. We refer to the following English eases, illustrating this doctrine. Thynn v. Thynn, 1 Vern. 295; Devemill v. Bains, Proc. in Ch. 3; Oldham v. Littlefield, 2 Vern. 506; Drakeford v. Wilks, 3 Atk. 539; Barrow v. Greenough, 3 Ves. Jr. 151; Chamberlain v. Ager, 2 Vez. & Beames, 259; Strickland v. Aldridge, 9 Ves. Jr. 638; Mestaer v. Gillespie, 11 Vez. Jr. 638; Hugenin v. Beasly, 14 Vez. Jr. 290; Beach v. Kennigate, Ambler, 47; Wicket v. Baby, 3 Brown’s Parl. Cases, 16, cited in 10 Yerg., 273, and 2 Story’s Eq. 16; Marriott v. Marriott, 1 Stranger, 666; Podmore v. Gunning, 5 Simons, 485; 7 Eng. Ch. 505; Podmore v. Gunning, 7 Simons, 644; 10 Eng. Ch. 341. We also refer to following American cases: Richardson v. Adams, 10 Yerg. 273; Colgate D. Owing’s case, Bland’s Ch. 307; Brown v. Brown, 1 H. & J. 430; McKee v. Jones, 3 Barr’s Penn. St. 497; McKee v. Jones, 6 Ib. 428; Hoge v. Hoge, 1 Watts, 163, 214; Gaullaher v. Gaullaher, 5 Watts, 200; Fay v. Fay, 2 Hay. 131.
    In Ohio, as in North Carolina, we have no provision in the statute of frauds, nor any statute, requiring express trusts to be evidenced by writing, in relation to lands ór personalty. 
    
    
      Henry Stanbery and John L. Green, for defendants,
    very fully reviewed the evidence in the case, and the ^authorities cited, and insisted that the authorities did not, upon the facts, support the complainants’ claim to relief; and they insisted that all the English cases relate to trusts as to personalty. Two of the American cases relate to lands, but they fasten the trust, not on the testator’s estate; they do not in any particular change the will of the testator; but they raise a trust on the devisee, in reference to property of his own.
    In all the cases, the controlling fact is present, of the prevention of a bequest or testamentary act in favor of the plaintiff, by the interference of the alleged trustee, and upon the faith of the parol promise. No such case as the one at bar has ever, yet been sustained; for here it is claimed an entire will, embracing all the estate of the testator—realty as well as'personalty—is, in effect, to be set aside upon a parol declaration of a very equivocal character; and that, too, after the death of the supposed trustee, after the lapse of many years, and against the denial of defendants in their answer.
    The ground upon which such trusts are sot up is simply that of fraud, practiced by the party on whom the trust is to be fastened; and nothing short of that can ever be held sufficient. If that element is not present, no matter how clear may be the proof of the testator’s intention, no matter how distinct and repeated may be his declarations, they can not be admitted to control the written will, or to make it speak any other language than the written language. 1 Story’s Eq. 256 ; Hill on Trustees, 60; 1 Jarman on Wills, 349.
    The general doctrine, as to the inadmissibility of parol evidence to contradict or impeach the provisions of a will, has been often recognized in Ohio. Painter v. Painter, 18 Ohio, 263. In regard to the proof now offered, there is a graver objection to it than this common rule of evidence; for here the proof conflicts with a written will—with a document, which to have any efficacy at all, must be written. The law of Ohio scarcely tolerates parol evidence of a testamentary intent, or disposition, even where there is no written will with which it comes into conflict. The case of a nuncupative will is the *only one in which it is allowed. In the case at bar, there is a written will, and the evidence to contradict it has rested in parol for a greater number of years than the number of days allowed in a nuncupative will I After so great a lapse of time, the clearest case of fraud should be made out to allow parol proof to overcome a written will. The written will was not procured by the wife, nor did she prevent any intended will. In making the devise, the testator trusted to the discretion of his wife.
    To create a trust there must he fraud. A knowledge of the testator’s intentions, and a refusal to carry them out, is not fraud. Fraud is not established by proof of the declared intentions of the testator, and the promise,to fulfill them by his wife—not fraud in that sense of the term which will justify the introduction of' parol proof to change, much less to contradict, a written instrument. There must be fraud in procuring the will, as by the false reading of it, the false suggestion, or concealment of material facts, etc.
    McClintick, Ewing & Hunter, in reply,
    The objections urged against complainant’s claim are :
    1. That a trust in reference to real estate can not be shown by parol. The English and American cases establish the contrary.
    2. That the parol proof is inadmissible by reason of our statute of wills, which requires wills to bo in writing. We answer, the complainants do not seek to disturb the will, but in a manner claim under it. This same objection has been made and overruled in England, Maryland, Tennessee, and Pennsylvania, and yet in those states, as in Ohio, wills are required to be in writing.
    3. That there is no proof of fraud on the part of Mrs. Beeves. The proof settles that. Her refusal to perform a prior promise, relates back to the inception of the transaction, and taints it with fraud in the eye of the law, as in Podmore v. Gunning, cited above.
    ^Finally, the lapse of time is set up. Complainants could not know that Mrs. Beeves would refuse to execute her promise, until she died, and the bill was filed within four years after the probate of her will. A portion of the complainants had, until recently, been minors, and one was a minor when the bill was filed.
    
      
       As to trusts 'which, “result from the established doctrines of equity, without any declaration by the parties,” and which may be “set up upon parol evidence,” see "Walker’s Am. Law, 314, sec. 341 and note. Steele v. Worthington, 2 Ohio, 182, 264; Woods v. Dille, 11 Ohio, 455; 1 Ohio, 314; Flemming v. Donahoe, 5 Ohio, 255; Stiver v. Stiver, 8 Ohio, 217; Miami Bx. Co. v. Bank U. S., Wright S. C. 249; Watson v. Le Bow, 6 Barb. S. C. 481; Bathbun v. Bathbun, Ib. 98; Morton v. Southgate, 28 Me. (15 Shep.) 41; Lemmond v. Peoples, 6 Ired. Eq. 137; Mahomer v. Harrison, 13 S. & M. 53; Smith v. Sackett, 5 Gilman, 534.
    
   Spalding, J.

If ever a will was made in so plain, direct, and simple language as to be “ its own best interpreter,” it would seem to me, that the last will and testament of Nathan Beeves is such an instrument.

In the first paragraph, the testator gives all his estate, real and personal, to his wife Nancy, and “to her heirs and assigns forever.” ’ This is a devise in fee. It was claimed that a life estate was intended, and that the devisee was to dispose of the remainder according to the well-known and expressed wishes of the testator.

The next following sentence is an ample refutation of any such claim : “ To be disposed of in such manner as she may judge best” And as if to make “ assurance doubly sure,”'tho testator then proceeds to reiterate his devise in fee simple. “ My meaning herein is, that the residue of my estate, after payment of all debts clue by me at the time of my decease, shall belong to my said wife, her heirs and assigns forever.” It is not seriously contended by counsel for complainants, that parol evidence can be introduced in this case for the purpose of contradicting, adding to, or explaining the will of Nathan Reeves.

That.11 the judgment of a court in expounding a will should be simply declaratory of what is in the instrument,” seems to bo conceded. Otherwise, as has often been remarked with great pertinency, courts would permit the witness to make the will instead of the testator. Parol evidence is admissible, however, for the purpose of counteracting fraud, as “ to show that one paper was obtruded on the testator for another, which he intended to execute.” 8 Durn. & East, 147.

*So “if a father devises to the youngest son, who promises that if the estate is devised to him, he will pay £10,000 to the eldest son. Equity would compel the former to discover whether that passed in parol; and if he acknowledged it, even praying the benefit of the statute, ho would bo a trustee to the value of £10,000.” And it is said to be clear, that in such a case, if the trust were denied by the heir or devisee, it might be proved, aliunde. 1 Jarman on Wills, 357. But in all such eases courts will move with the utmost caution.

If parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the construction of the written will, when the attempt is made directly to overturn its provisions, how extremely guarded should courts of justice be, when the same end is sought to be attained, through an indirect and covert attack, by means of the same instrumentality.

In the ease at bar, the parol testimony introduced by the complainants, falls far short of satisfying this court that the testator intended that his wife should take, by his will, anything short of an absolute estate in the premises devised.

The principal witness, who was the draughtsman of the will—himself a profound lawyer—does not venture to say that any alteration was made in the will of Nathan Reeves at the instance of his wife, who was made his only devisee. On the contrary, Judge Scott says expressly, that he himself suggested to the testator the propriety of devising the whole property to his Wflfe, “if he had confidence in her that she would dispose of it in such manner as ho had before indicated.” In this he is contradicted by Mr. Collins, who evidently is not an unbiased witness, and his testimony will receive no further comment. The testator declared he had that confidence in his wife; and the will was executed accordingly # Mrs. Reeves declared that she understood her husband’s wishes in that respect, and would act accordingly. Has she done so ? No mortal can toll. The will was executed some six weeks after the conversation between Judge Scott and Nathan Reeves, touching an equal distribution *of the property among the children. We do not know how often he changed his mind after that, nor what new rule of distribution he may have imparted to his wife. She said, in the presence and hearing of the witness, that she fully undei’Stood her husband’s wishes in regard to the property. As she was the mother of the children of whom he was the father, it is by no moans surprising that he placed his whole property within lier unlimited control. - She had the same interest with himself in making provision for the wants of their children. She had the same parental feelings to gratify, in contributing to their comfort and happiness/ Sho has dealt out to these children, from the abundance left her by her husband, most profusely; perhaps not in exactly equal proportions, but of this she was made the judge, by the express language of the will.

We can see nothing in the conduct of this devisee, either before or after the decease of the testator, that can be tortured into a fraud upon the rights of the complainants. She did not, as we believe, solicit her husband to alter his intended bequests to his children ; and consequently, his absolute devise to her can not be burdened with a trust created by proof aliunde.

The bill will stand dismissed, with costs.  