Attorneys' fees are not generally allowed a litigant; but the code declares that they may be allowed if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense: Civ. Code, sec. 3796. There was no allegation that the defendant had acted in bad faith, or had been stubbornly litigious, nor was it in terms alleged that it had caused the plaintiff unnecessary trouble and expense. The averment was in effect merely that the defendant had so acted as to compel the plaintiff to bring a suit to recover the amount due it. This is not sufficient to tax the defendant with attorneys' fees: Pferdmenges v. Butler, 117 Ga. 400, 43 S. E. 695; Traders' Ins. Co. v. Mann, 118 Ga. 381, 45 S. E. 426.

6. While there are other assignments of error, none of them are of such a character as to require an extended discussion, and any error that may have been committed would not be sufficient of itself to require a reversal of the judgment. The evidence fully authorized a judgment in favor of the plaintiff for the sum of one hundred and thirty-eight dollars and sixty cents, as the value of the articles lost; and as this exact amount was sued for, and no interest was claimed in the petition, the recovery should have been limited to this sum: Georgia R. Co. v. Crawley, 87 Ga. 192, 13 S. E. 508. If the plaintiff will write off from the verdict and judgment the attorneys' fees found and all damages 15 except one hundred and thirty-eight dollars and sixty cents, the judgment will be affirmed; otherwise a judgment of reversal will be entered,

Judgment affirmed, on condition.

All the justices concur.

Trover and Conversion Against and by Carriers are discussed generally in the monographic note to Bolling v. Kirby, 24 Am. St. Rep. 815, and in the subsequent case of Marshall etc. Grain Co. v. Kansas City etc. R. R. Co., 176 Mo. 480, 98 Am. St. Rep. 508, and cases cited in the cross-reference note thereto. That a carrier who wrongfully sells goods to enforce his lien thereon for freight is guilty of conversion, see Briggs v. Boston etc. R. R. Co., 6 Allen, 246, 83 Am. Dec. 626. See, too, Nathan v. Shivers, 71 Ala. 117, 46 Am. Rep. 303; Hunt v. Haskell, 24 Me. 339, 41 Am. Dec. 387.

CASSELS v. FINN.

[122 Ga. 33, 49 S. E. 749.]

TRUSTS-Failure to Perform Promise-Trustee Ex Maleficio.Failure to perform a verbal promise made by the sole heir at law of one desiring to dispose of her estate by will to third persons, that he will dispose of her estate as she desires, cannot make him, in case of an intestacy, a trustee ex maleficio as to the property inherited by him, in the absence of actual fraud. (pp. 92, 93.)

Denmark, Ashley & Smith and S. A. Roddenbery, for the plaintiffs.

Hammond & Hammond and F. Mitchell, for the defendant.

34 EVANS, J. Unless the allegations of the petition respecting the conduct of the husband of the defendant relating to the intestacy of Mrs. Susie Finn will imply a trust which can be established by parol proof, the demurrer was rightfully sustained. Express trusts must be created or declared in writing: Civ. Code, sec. 3153. Hence, the parol promise alleged to have been made by John Finn to his first wife cannot be upheld as an express trust. But if from the nature of the transaction it be manifest that it was the intention of Mrs. Susie Finn to make a will devising her property to plaintiffs, as alleged in the petition, and she was prevented from so doing by the fraud of her husband, whereby upon her decease he became vested with the absolute title to all her property as heir at law, equity will imply a trust: Civ. Code, sec. 3159. "There is no law which requires a fraudulent undertaking to be manifested by writing. Those who use promises, which they make deceitfully, for the purpose of accomplishing fraudulent designs, are generally careful not to furnish 35 written evidence of their turpitude. Such promises, whatever may be their terms, do not, unless reduced to writing, raise express trusts; but the law, acting upon them according to their nature, makes them a basis upon which to build up in favor of the defrauded party an implied or constructive trust": Brown v. Doane, 86 Ga. 38, 12 S. E. 179, 11 L. R. A. 381. The learned judge who delivered the opinion in that case quoted approvingly from 2 Pomeroy's Equity Jurisprudence, section 1656: "In order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivo

cal, otherwise the statute of frauds would be virtually abrogated; there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated." There is a great difference between the breach of a promise made with no intention of performing it and the breach of a promise not fraudulent of itself. In discussing this distinction, Lumpkin, J., in Robson v. Harwell, 6 Ga. 615, said: "The rule I am contending for is not only the rule of the books, but it is the dictate of sound reason. Let the doctrine be once established that a failure to comply with a parol promise made contemporaneous with a deed is, ipso facto, a fraud and can be proved, and the promise decreed to be performed in equity on the ground of fraud, and you do what the master of rolls, in Portmore v. Morris, refused to do-demolish one of the foremost rules of law."

Do the allegations of the petition show any fraudulent conduct on the part of John Finn? It is charged that Mrs. Susie Finn sent for her husband and "repeated to him several times what disposition she wanted made of her property," it being the same described in the petition. "Thereupon the said John L. Finn said to his wife, 'I promise and swear to do everything just as you wish and as you have stated'; his wife then replied to him, 'John Finn, your word is as good as a will.' The said Mrs. Susie S. Finn then, relying on his promise and believing that he would in good faith carry out her wishes, decided not to have a will prepared." This conversation is said to have occurred on June 18, 1894, and Mrs. Finn died on the 25th of July following. The petition further states that for some time after her death, her husband seemed disposed to carry out and perform in good faith his 36 promise to his deceased wife, even going so far as to make remittances to Mrs. Cassels of moneys received by him in part from the collection of rents and from the sale of a vacant lot in Thomasville, and repeatedly assuring Mrs. Cassels of his intention to carry out every pledge made to his deceased wife. John Finn, up to the time of his death, also paid the school expenses of Alexander Cassels. According to the petition, Finn never denied his parol promise to his deceased wife but died without executing it. No act of mala fides is alleged, and, so far as we can learn from the petition, it was Finn's intention to perform his promise. His promise to his wife does not appear to have been made with contemporaneous fraudulent intent. The failure to perform a verbal promise made by the sole heir at law of one desiring to dispose of her estate by will to third persons, that

he will dispose of her estate as she desires, cannot make the heir at law in case of an intestacy, a trustee ex maleficio as to the property inherited by him, in the absence of actual fraud. There is a line of authorities, both English and American, holding that if a testator be induced to make a devise by the promise of the devisee that it shall be applied to the benefit of another, a trust is thereby created which may be established by parol evidence: Oldham v. Litchfield, 2 Vern. 506; Thynn v. Thynn, 1 Vern. 296; Williams v. Vreeland, 29 N. J. Eq. 417; Williams v. Fitch, 18 N. Y. 546; Church v. Ruland, 64 Pa. St. 432; Gilpatrick v. Glidden, 81 Me. 137, 10 Am. St. Rep. 245, 16 Atl. 464, 2 L. R. A. 662. The reasoning of this line of decisions is strongly put by Gibson, C. J., in Hoge v. Hoge, 1 Watts, 163, 26 Am. Dec. 52: "It is contended that parol evidence of a trust is contrary to our statute of wills, which corresponds, as far as regards the point in dispute, with the British statute of frauds. Undoubtedly every part of a will must be in writing; and a naked declaration of trust in respect of land devised is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee to get at him; and there is nothing in reason or authority to forbid the raising of such a trust from the surreptitious procurement of a devise." So, in the case of Dixon v. Olmius, 1 Cox, 414, the will of Lord Waltham had been revoked by suffering a fine and recovery, and 37 Lord Waltham desired to republish it, but was fraudulently prevented by acts of fraud and violence of Mr. Olmius, the husband of the testator's daughter, who was tenant in tail and entitled to the estate in case the recovery was defeated. Lord Thurlow held that the tenant in tail could not take advantage of her husband's fraud, and that the estate would be treated as if the will had been republished.

The case of Bedilian v. Seaton, 3 Wall. Jr. 279, 3 Fed. Cas. 38, differentiates between a transaction whereby the absolute title is acquired by will by means of a fraudulent promise, and one whereby the title is acquired by inheritance by means of a fraud practiced by the heir at law to prevent his ancestor from making a will otherwise disposing of his estate. The facts of this case are very similar to those of the case at bar, and the distinction sought to be pointed out is that in case of the procurer of the title by will by fraudulent promise of the devisee a trust arises which adheres to the land thus fraudulently obtained, whereas

when the title is cast upon the heir by the law such a trust cannot be implied; for in the latter case the promise would be a mere parol contract, and not a trust descending with the land. In principle, I am unable to perceive any rational distinction between the two classes of cases. In each the title is procured by means of fraud, and it is the fraud which creates the trust, and not the particular manner by which the result is accomplished. Pervading all the cases cited the dominant note is fraud, and not the mere breach of a parol promise. The Illinois supreme court clearly brings out this distinction in Lantry v. Lantry, 51 Ill. 458, 2 Am. Rep. 310, wherein it is ruled: "If A voluntarily conveys lands to B, the latter having taken no measures to procure the conveyance, but accepting it and verbally promising to hold the property in trust for C, the case falls within the statute, and chancery will not enforce the parol promise. But if A was intending to convey the land directly to C, and B interfered and advised A not to convey directly to C, but to convey to him, promising if A would do so he, B, would hold the land in trust for C, chancery will lend its aid to enforce the trust, upon the ground that B obtained the title by fraud and imposition upon A." To the same effect, see Fischbeck v. Gross, 112 Ill. 208. Before one can become a trustee ex maleficio, he must obtain another's property from him by fraud.

38 We have endeavored to demonstrate that the plaintiffs' cause of action is dependent upon the determination of the conduct of the defendant's husband as fraudulent. That it was not fraudulent is clear from the allegations of the petition. His parol promise appears to have been made in good faith, and the breach thereof was occasioned by his death before fulfillment. Mrs. Susie Finn lived five weeks after her husband made the promise; during this period the husband is not charged to have done any act to prevent the execution of a will. His wife simply relied on a promise, not binding in law but only in conscience. The failure to perform such verbal promise was not per se fraudulent; and as no act of fraud is alleged to have been committed by John Finn whereby he became the owner of the property upon the decease of his wife, he was not a trustee ex maleficio. The demurrer was properly sustained.

Judgment affirmed.

All the justices concur.

HEIR, DEVISEE OR LEGATEE AS TRUSTEE EX MALEFICIO.

I.

Devise Induced by Fraudulent Promise, 95.

II. Parol Proof to Establish Trust, 99.