Trusts Based on Oral Promises to Hold in Trust to Convey or to Devise Made by Voluntary Grantees

Authors

George P. Costigan Jr, Northwestern University Law School

Abstract

Where a trust is claimed because a grantee has violated some oral promise in reliance upon which the conveyance to him was made, it is customary to say that he took upon an oral trust. That, however, is often not a correct statement of the situation unless an oral promise to convey or to devise to a third person, or to reconvey or to devise to the grantor, is necessarily to be deemed an oral promise to hold in trust. Many of the so-called oral-trust deed cases are really cases of contracts analogous to bailment contracts, made for the benefit of the promisee or of third persons and in consideration of the property conveyed, where the contract to convey or to devise is not enforceable as such by the promisee nor by the beneficiary because of the statute of frauds defense, or because of the statute of frauds and the statute of wills combined defenses. As to them, whatever may be true of the. strictly oral-trust conveyances, the trust question arises solely becz e performance of the contract as such cannot be compelled. In the rare instances where the part-performance of oral contracts doctrine can be relied upon to take such a case of oral promise out of the statute of frauds, some courts which would not enforce a trust except in the case of an actual fraudulent intent on the part of the promisor at the time he took title or of some peculiarly confidential relation between the parties, will hasten to enforce the promise as contractual.

Recommended Citation

George P. Costigan Jr, Trusts Based on Oral Promises to Hold in Trust to Convey or to Devise Made by Voluntary Grantees, 12 Mich. L. Rev. 423 (1914).
Available at: https://repository.law.umich.edu/mlr/vol12/iss6/1