Adelma G. Hatch v. Ida W. Rideout

The defendant's motion to dismiss was properly denied, since there was evidence to warrant a decree establishing a resulting trust in favor of the decedent. The decree in favor of the wife and children must be vacated for lack both of competent evidence to establish an express trust, and sufficient evidence to establish a constructive trust in their favor. The decedent's wife is not a party, and made no claim of a trust in her favor. If the oral testimony might be considered sufficient to establish a purpose on the part of the defendant to declare an express trust in favor of the children, who likewise are not parties, such a trust would be unenforcible for want of an ""instrument signed by the party creating the same."" R. L., c. 259, s. 16; Hall v. Congdon, 55 N.H. 104. A trust in favor of the children could be said to arise by operation of law only in the event of a finding of such fraud on the part of the defendant as would warrant imposition of a constructive trust. Restatement, Restitution, s. 183. Cf. Prescott v. Jenness, 77 N.H. 84; White v. Poole , 74 N.H. 71. The trust found by the Court was not stated to be a constructive trust, and the evidence does not disclose circumstances which would give rise to one. See Scott, Trusts, s. 45; 3 Bogert, Trusts and Trustees, ss. 495, 496, pp. 201-216. Thus the trust found must be taken to be a resulting trust, arising by operation of law out of payment of the purchase price. Smith v. Pratt, ante, 337.