W. F. Overly, his father, who was then 70 years of age and in ill health.
36. Plaintiff has failed to establish the express oral trust averred in his complaint that Elmer Overly agreed to hold 75% of the original common stock of the Overly Manufacturing Company in trust for the children of W. F. Overly or that he did so hold it in trust.
Conclusions of law.
I. Plaintiff has failed to establish by clear, precise and indubitable proof the oral trust averred in his complaint.
II. Judgment should be entered in favor of all the defendants.
III. Plaintiff should pay the costs.
Plaintiff, Homer Overly, avers in his complaint an express oral trust, whereby Elmer Overly, his brother, was trustee of 75( of the stock of the Overly Manufacturing Company; that he had violated said trust by conveyance and in other ways. Plaintiff seeks an enforcement of the trust in his favor, an accounting and other relief. Defendants deny that there was such a trust.
The question involved is whether Homer Overly established by clear, precise and indubitable proof, the express oral trust averred in the complaint. The facts are set forth in the foregoing findings of fact, so that it is not necessary to repeat the same here.
The law in relation to parol trusts of personal property, and the evidence required to establish the same, is well established in Pennsylvania. In Gribbel v. Gribbel, 341 Pa. 11, 13, and 14, 17 A.2d 892, 894, it is stated:
'It is firmly established that a trust in personal property may be established by parol. Christian Moerlein Brewing Co. v. Rusch, 272 Pa., 181, 186, 116 A. 145. The proof, however, must be clear, precise and indubitable, Washington's Estate, 220 Pa. 204, 205, 69 A. 747; definite and convincing, Free's Estate, 327 Pa. 362, 367, 194 A. 492; and the burden of furnishing it rests upon the party asserting the trust, Rocks v. Sheppard, 302 Pa. 46, 50, 152 A. 754. No particular form of words or conduct is necessary. Converse v. Hawse, 326 Pa. 1, 4, 190 A. 899; Restatement, Trusts, section 24(2). The declaration of intention to establish a parol trust must be definite, clear and explicit and embody all the essential elements. Bair v. Snyder County State Bank, 314 Pa. 85, 89, 171 A. 274. A final and definite intention to create a trust must be established and the evidence of its creation cannot be vague, uncertain or ambiguous. Brubaker v. Lauver, 322 Pa. 461, 185 A. 848; Restatement, Trusts, section 23.'
In Fergusom Packing Co. v. Mihalic, 99 P.S.C.R. 158, 161, 162 (1930), it is stated:
'In Boyertown National Bank v. Hartman, 147 Pa. 558 (23 A. 842, 30 Am.St.Rep. 759), Justice Sterrett quotes from Ott v. Oyer, supra, (106 Pa. 6), and has this comment, 'what is meant by indubitable proof in connection with such cases is evidence that is not only found to be creditable but of such weight and directness as to make out the facts alleged beyond a reasonable doubt.' In Snyder v. Phillips, 25 Pa.Super.Ct. 648, the lower court affirmed the point that to entitle the plaintiff to recover 'he must satisfy the jury by evidence that is clear, precise and indubitable, that is beyond a reasonable doubt, that the alleged mistake in the making of the contract sued on was mutual.' On appeal this was held by the court to be no error, citing the above cases. In Michael v. Stuber, 73 Pa.Super.Ct. 390, the court charged the jury that the fraud alleged by the defendant had to be proved by her beyond a reasonable doubt and in its opinion on the motion for a new trial and for judgment n.o.v., the lower court reviews the cases of the subject and our court in an opinion by the late Judge Henderson affirmed the correctness of the instruction. The cases we have cited have been referred to in a number of later decisions and we find none that overrule the position which is above set out, to wit: that the phrase 'beyond a reasonable doubt' is the equivalent of the words 'clear, precise and indubitable,' and where the latter phrase can be properly employed, it is not error to use the words Beyond a reasonable doubt.' We cannot convict the lower court of error in following these numerous decisions. The words 'beyond a reasonable doubt' places no harder burden on the litigant than the phrase 'clear, precise and indubitable' does. It appears that in an ordinary civil case, the burden of proof is sustained by presenting a preponderance of evidence, but where the fraud is alleged, in the endeavor to set aside a written instrument the proof must be clear, precise and indubitable and in such connection, it is not error to require that it be 'beyond a reasonable doubt."
Plaintiff testified that the alleged express oral trust was made at a meeting between Elmer Overly, his father and himself. The father is dead; Elmer denies making thereof. The testimony as to subsequent declarations of the trust made by Elmer, was principally that of plaintiff and his brother Russell, which was denied by Elmer. Subsequent to the making of said oral trust, plaintiff admitted to a disinterested witness that he did not have any interest in the Overly Manufacturing Company. The testimony of the alleged disinterested witnesses shed but little light, if any, on the question whether Elmer made the alleged express oral trust.
Considering all the evidence and the credibility of the witnesses, I have reached the conclusion that the proof of the alleged oral trust fails to meet the standard required in Pennsylvania that it must be 'clear, precise and indubitable.'
Let an order for judgment be prepared and submitted in accordance with the foregoing findings of fact, conclusions of law and this opinion.
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