if he sees fit, to dispose of it in a particular way, but if there is no promise by him, express or implied, to so dispose of it, and the matter is left wholly to his will and discretion, no secret trust is created, and he may, if he chooses, apply the legacy to his own use. When it clearly appears that no secret trust was intended, even if it is equally clear that the testator expected that the gift would be applied in accordance with his known wishes, the legatee, if he has made no promise, and none has been made in his behalf, takes an absolute title, and can do what he pleases with the gift. Whatever moral obligation there may be, no legal obligation rests upon him.1 But to create such a trust in opposition to the terms of the will it was necessary that the testator should have communicated his intention to the legatee, the legatee should have assented to the same, and the testator should have acted upon such assent.2 And where the request made by the testator to his wife was that she should live comfortably and in the same style that she had been accustomed " and at the end of the year I want you to divide the surplus among my people", this was not a sufficient designation of the property in order for the trust to be enforced in equity. If there is such uncertainty that it cannot be known who is to take as beneficiary, the trust will fail; or if the property which is attempted to be put in trust is so uncertain that it cannot be separated or distinguished from the individual property of the trustee the trust will be void for uncertainty. But where the testator

had made a provision in his will for his executrix to have a certain sum, and afterwards changed his mind and wanted her to receive only the income from the amount, and that she will the residue to his brothers and sisters, and she replied to the request of the

1 O'Donnell v. Murphy, 17 Cal. App. 625, 120 Pac. 1076; Edson v. Barstow, 10 App. Div. 104, 41 N. Y. Supp. 723, 75 N. Y. St. 1115, 48 N. E. 541, 61 Am. St. Rep. 609, 154 N. Y. 199; In re Small's Will, 27 App. Div. 438, 50 N. Y. Supp. 341, 52 N. E. 723, 158 N. Y. 128; Rutherford v. Carpenter, 134 App. Div. 881, 119 N. Y. Supp. 790; Casey v. Casey, 161 App. Div. 427, 146 N. Y. Supp. 348; Golland v. Golland, 84 Misc. Rep. 299, 147 N. Y. Supp. 263; Smith v. Smith, 54 N. J. Eq. 1, 32 Atl. 1069; Yearance v. Powell, 55 N. J. Eq. 577, 37 Atl. 735.

2 Nash v. Bremner, 84 N. J. Eq. 131, 92 Atl. 938.

3 Smullin v. Wharton, 73 Neb. 667, 103 N. W. 288; and a request that "my wife if she should not require the whole of my estate as a support, that she will will at her death the remainder to the children of my brother, Charles A. Bryan." Bryan v. Milby, 6 Del. Ch. 208, 24 Atl. 333, 13 L. R. A. 563; Bills v. Bills, 80 Iowa 269, 45 N. W. 748, 8 L. R. A. 696, 20 Am. St. Rep. 418; Cornwell v. Wulff, 148 Mo. 542, 50 S. W. 439, 45 L. R. A. 53; Orth v. Orth, 145 Ind. 184, 42 N. E. 277, 44 N. E. 17; Howard v. Carusi, 109 U. S. 731, 27 L. Ed. 1089, 3 S. Ct. Rep. 575.

testator and wrote in substance, "Tell Uncle Willis that everything will be all right, and I will do as he wishes me to do," this was a sufficient promise to create the trust, and there being no uncertainty as to the amount of the property to be given, or to whom it was intended.1]

§ 367. Fraudulent Withholding of Consent to Marriage, upon Which Legacy Depends, as Ground for Relief. We may close this head of positive or actual fraud by referring to another class of frauds of a very peculiar and distinct character. Gifts and legacies are often bestowed upon persons upon condition that they shall not marry without the consent of parents, guardians, or other confidential persons. And the question has sometimes occurred how far Courts of Equity can or ought to interfere where such consent is fraudulently withheld by the proper party for the express purpose of defeating the gift or legacy, or of insisting upon some private and selfish advantage, or from motives of a corrupt, unreasonable, or vicious nature. The doctrine now firmly established upon this subject is that Courts of Equity will not suffer the manifest object of the condition to be defeated by the fraud, or dishonest, corrupt, or unreasonable refusal of the party whose consent is required to the marriage.2 It is indeed a very delicate and difficult duty to be performed by such courts. But to permit a different rule to prevail would be to encourage frauds and to enable a party to withhold consent upon grounds utterly wrong or upon motives grossly corrupt and unreasonable.

1 Belknap v. Tillotson, 82 N. J. Eq. 271, 88 Atl. 841.

2 Peyton v. Bury, 2 P. Will. 625, 628; Eastladd v. Reynolds, 1 Dick. R. 317; Goldsmid v. Goldsmid, 19 Ves. 368; Strange v. Smith, Ambler, R. 263; Clarke v. Parkins, 19 Ves. 1, 12; Mesgrett v. Mesgrett, 2 Vern. R. 580; Merry v. Ryves, 1 Eden, R. 1, 4.

CHAPTER VII

CONSTRUCTIVE FRAUD

§368. Constructive Fraud. Having thus considered some of the most important cases of actual or meditated and intentional fraud in which Courts of Equity are accustomed to administer a plenary jurisdiction for relief, we may now pass to another class of frauds, which, as contradistinguished from the former, are treated as legal or constructive frauds. By constructive frauds are meant such acts or contracts as, although not originating in any actual evil design or contrivance to perpetuate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and therefore are prohibited by law as within the same reason and mischief as acts and contracts done malo animo. Although at first view the doctrines on this subject may seem to be of an artificial if not of an arbitrary character, yet upon closer observation they will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice after a wrong has been committed. By disarming the parties of all legal sanction and protection for their acts, they suppress the temptations and encouragements which might otherwise be found too strong for their virtue.

$369. Nature of Constructive Frauds. Some of the cases under this head are principally so treated because they are contrary to some general public policy or to some fixed artificial policy of the law. Others again rather grow out of some special confiden

tial or fiduciary relation between all the parties or between some of them, which is watched with especial jealousy and solicitude because it affords the power and the means of taking undue advantage or of exercising undue influence over others. And others again are of a mixed character, combining in some degree the ingredients of the preceding with others of a peculiar nature; but they are chiefly prohibited because they operate substantially as a fraud upon the private rights, interests, duties, or intentions of third persons, or unconscientiously compromit, or injuriously affect the private interests, rights, or duties of the parties themselves.

§370. [Constructive Fraud Defined. What is called constructive fraud does not necessarily negative integrity of purpose. It has been defined as an act which the law declares fraudulent without inquiry into its motive. Or, such contracts or acts as, though not originating in any actual evil design or contrivance to perpetrate a fraud, yet by their tendency to deceive or mislead, or to violate confidence, are prohibited by law. The use of the phrase "constructive fraud" has been severely criticized by the courts and law-writers as being misleading and unscientific, but it has become so fixed in the literature and terminology of the law that any attempt to substitute a more fitting name to the thing to which it is applied would result in confusion. The necessity of considering this phase of the law arises most frequently in controversies which grow out of dealings between persons when one occupies fiduciary or confidential relations to the other. As between such persons, a contract by which the one having the advantage of position profits at the expense of the other will be held presumptively fraudal and voidable, and the burden is placed upon him who claims the benefits thereof to rebut that presumption by an affirmative showing that such contract was fairly procured without undue influence or other circumstance tending to impeach its fairness. Though strictly of differing signification, the phrases "fiduciary relations" and "confidential relations are ordinarily used as convertible terms and have reference to any relationship of blood, business, friendship, or association in which the parties repose special trust and confidence in each other and are in a position to have and exercise, or do have and exercise, influence over each other. The rule or presumption to which we have referred is more particularly applicable where one of the parties to such relation has by reason of his stronger character, greater ability, and wider experience, or by his hold upon the

affection, trust, and confidence of the other, obtained a dominating influence over him.1]

§ 371. Cases of Contracts against Public Policy. And in the first place let us consider the cases of constructive fraud which are so denominated on account of their being contrary to some general public policy or fixed artificial policy of the law. Among these may properly be placed contracts and agreements respecting marriage (commonly called marriage brokage contracts), by which a party engages to give another a compensation if he will negotiate an advantageous marriage for him. The civil law does not seem to have held contracts of this sort in such severe rebuke; for it allowed proxenetæ, or match-makers, to receive a reward for their services, to a limited extent. And the period is comparatively modern in which a different doctrine was engrafted into the common law and received the high sanction of the House of Lords.4 $372. Same. The ground upon which Courts of Equity interfere in cases of this sort is not upon any notion of damage to the individuals concerned, but from considerations of public policy. Marriages of a suitable nature and upon the fairest

1 Lampman v. Lampman, 118 Iowa 140, 91 N. W. 1042; Rodes v. Bate, L. R. 1 Ch. 252; Frost v. Latham & Co., 181 Fed. 866; Mott v. Mott, 49 N. J. Eq. 192, 22 Atl. 997; Cole v. Getzinger, 96 Wis. 559, 71 N. W. 75; Madden v. Caldwell Land Co., 16 Idaho 59, 100 Pac. 358, 21 L. R. A. (N. s.) 332.

2 See Mr. Cox's note to Osmond v. Fitzroy, 3 P. Will. 131; Newland on Contracts, ch. 33, p. 469, &c. By being contrary to public policy we are to understand that in the sense of the law they are injurious to, or subversive of, the public interests. See Chesterfield v. Janssen, 1 Atk. 352; s. c. 2

Ves. 125.

3 Cod. Lib. 5, tit. 1, 1. 6.

4 Hall and Kean v. Potter, 3 P. Will. 76; 1 Eq. Cas. Abridg. 89, F; s. c. 3 Lev. 411; Show. Parl. Cas. 76; 1 Fonbl. Eq. B. 1, ch. 4, § 10; Grisley v. Lother, Hob. R. 10; Law v. Law, Cas. temp. Talb. 140, 142; Vauxhall Bridge Company v. Spencer, Jac. R. 67. In Boynton v. Hubbard, 7 Mass. R. 112, Mr. Chief Justice Parsons said: "We do not recollect a contract which is relieved against in chancery as originally against public policy which has been sanctioned in Courts of Law as legally obligatory on the parties. For although it has been said in chancery that marriage brokage bonds are good at law but void in equity, yet no case has been found at law in which those bonds have been holden good." But see Grisley v. Lother, Hob. R. 10, and a case cited in Hall v. Potter, 3 Levinz, R. 411, 412; 1 Fonbl. Eq. B. 1, ch. 4, § 10, note (r).

5 1 Fonbl. Eq. B. 1, ch. 4, § 10, note (r); Newland on Contracts, ch. 33, pp. 469 to 472. "Marriage brokage bonds which are not fraudulent on either party are yet void because they are a fraud on third persons, and a public mischief, as they have a tendency to cause matrimony to be contracted on mistaken principles, and without the advice of friends, and they are relieved against as a general mischief for the sake of the public." Parsons, Ch. Just. in Boynton v. Hubbard, 7 Mass. 112.

Per