Latham v. Father Divine, 85 N.E.2d 168 (NY. 1949).


Facts: The complaint brought by Ps (first cousins of the decedent) alleged the following facts: The will of Mary Sheldon Lyon (T) gave almost her whole estate to Father Divine, leader of a religious cult (D), two corporate defendants (Ds), and to Patience Budd (D), one of Father Divine's active followers. After making the will, T expressed a desire to revoke the will and to execute a new will by which Ps would receive a substantial portion of the estate. T, shortly before her death, had attorneys draft a new will for her with Ps receiving a substantial sum. However before T could execute this will, Ds, by undue influence and physical force, prevented T from executing the will. The complaint brought by Ps alleged that Ds conspired to kill, and did kill, T by means of a surgical operation performed by a doctor engaged by Ds without the consent or knowledge of any relatives of T. The will that T did sign was probated under a compromise agreement in a proceeding in which Ps were not parties. The trial court upheld the complaint but the appellate court dismissed it on grounds of insufficiency. Ps appeal.

Issue: When an heir or devisee in a will prevents the testator from providing for one for whom she would have provided but for the interference of the heir or devisee, will that heir or devisee be deemed a trustee of the property received by him to the extent that the defrauded party would have received had not the deceased been interfered with?

Holding: Yes. It follows that the complaint fails to state facts constituting a cause of action either at law or in equity and that leave to amend could not result in a sufficient pleading. An order should be made reversing the order denying the motion for dismissal of the amended complaint and directing its dismissal, dismissing the appeal from the same order insofar as it denies the motion for a transfer of the trial to the Surrogate's Court of New York County, and reversing the order restraining the defendants from disbursing funds of the Mary Sheldon Lyon Estate.

Rule:The general rule is that where an heir or devisee in a will prevents the testator from providing for one for whom she would have provided but for the interference of the heir or devisee, that heir or devisee will be deemed a trustee, by operation of law, of the property, real or personal, received by him from the testator's estate, to the amount or extent that the defrauded party would have received had not the intention of the deceased been interfered with.

Analysis:This is not a proceeding to probate the will nor is it an attempt to accomplish a revocation of the earlier will. The complaint alleges that by force and fraud Ds kept T from making a will in favor of Ps. We cannot say as a matter of law that no constructive trust can arise. A constructive trust will be erected whenever necessary to satisfy the ends of justice. Here, the probated will has full effect, but equity, in order to defeat the