Ark. Code Ann. § 4-59-103 (2026)

Case Notes

Bases of Trusts.

A parol agreement that another shall be interested in the purchase of land without the advance of money by the other person, there being no element in case other than that of broken promise to reconvey, cannot be made the basis of a trust, either express or implied. W.B. Worthen Co. v. Vogler, 145 Ark. 161, 224 S.W. 626 (1920).

Burden of Proof.

In an action to compel defendant to convey a lot purchased at an execution sale in conformity with an agreement for that purpose, the burden was on the plaintiff to establish a trust ex maleficio. Eason v. Wheeler, 167 Ark. 320, 268 S.W. 29 (1925).

Burden is upon the party who asserts the existence of a constructive trust based on a parol agreement to establish it by evidence which is clear, cogent and convincing. Kelly v. Weir, 243 F. Supp. 588 (E.D. Ark. 1965).

Estoppel.

Wife of farm owner who knew of the agreement of her husband that his brother purchase one half of his land and that the farm be operated as a partnership was estopped to claim the statute of frauds. White v. White, 254 Ark. 257, 493 S.W.2d 133 (1973).

Evidence.

—In General.

An orally created trust cannot be found upon mere preponderance of the evidence but must be established by clear, satisfactory and convincing evidence. American Bonding Co. v. Hord, 98 F.2d 350 (8th Cir. 1938).

A resulting trust must be established by evidence that is clear, cogent and convincing. Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944).

To engraft resulting trust upon deed absolute in form, evidence must be clear and convincing. Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951).

Testimony may be sufficient to establish resulting trust in land, even though not undisputed. Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951).

There must be clear, cogent and convincing evidence of fraud, or a confidential relationship to establish a constructive trust. Bottenfield v. Wood, 264 Ark. 505, 573 S.W.2d 307 (1978).

Evidence insufficient to support a finding that there was either an express oral trust or a resulting or constructive trust. Bottenfield v. Wood, 264 Ark. 505, 573 S.W.2d 307 (1978).

—Parol Evidence.

Parol evidence not admissible to establish an express trust, as to an interest in land. Salyers v. Smith, 67 Ark. 526, 55 S.W. 936 (1900); Morris v. Nowlin Lumber Co., 100 Ark. 253, 140 S.W. 1 (1911); Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867 (1912); Carpenter v. Gibson, 104 Ark. 32, 148 S.W. 508 (1912); Veasey v. Veasey, 110 Ark. 389, 162 S.W. 45 (1913); Bray v. Timms, 162 Ark. 247, 258 S.W. 338 (1924); Hunt v. Hunt, 202 Ark. 130, 149 S.W.2d 930 (1941); Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944); Hawkins v. Scanlon, 212 Ark. 180, 206 S.W.2d 179 (1947).

Parol evidence is admissible to establish a resulting trust. Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402, 200 S.W. 1029 (1918); Bray v. Timms, 162 Ark. 247, 258 S.W. 338 (1924); Hunt v. Hunt, 202 Ark. 130, 149 S.W.2d 930 (1941); Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944); Stewart v. Bowen, 224 Ark. 275, 273 S.W.2d 540 (1954).

Parol evidence is admissible to establish an implied trust. Pharr v. Fink, 151 Ark. 305, 237 S.W. 728 (1922); Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944); Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).

A trust in personal property may be created and proved by parol. Scott v. Miller, 179 Ark. 7, 13 S.W.2d 819 (1929); Oliver v. Oliver, 182 Ark. 1025, 34 S.W.2d 226 (1931).

Parol evidence is admissible to establish a constructive trust. Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944); Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).

Parol evidence admissible to establish an express oral trust in personalty. Hawkins v. Scanlon, 212 Ark. 180, 206 S.W.2d 179 (1947).

Express Trusts.

This section refers to express trusts. McDonald v. Tyner, 84 Ark. 189, 105 S.W. 74 (1907); Barron v. Stuart, 136 Ark. 481, 207 S.W. 22 (1918).

Express trust cannot be engrafted on written instrument by parol. Morris v. Nowlin Lumber Co., 100 Ark. 253, 140 S.W. 1 (1911); Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867 (1912); Carpenter v. Gibson, 104 Ark. 32, 148 S.W. 508 (1912); Veasey v. Veasey, 110 Ark. 389, 162 S.W. 45 (1913); O'Connor v. Patton, 171 Ark. 626, 286 S.W. 822 (1926); Umberger v. Westmoreland, 218 Ark. 632, 238 S.W.2d 495 (1951).

Where a trust in land is sought to be established by the agreement of the parties or from the declaration of the beneficial owner of the property, made to establish a trust, it is within the statute of frauds and must be proved by writing. Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848 (1911); Pharr v. Fink, 151 Ark. 305, 237 S.W. 728 (1922); Hawkins v. Scanlon, 212 Ark. 180, 206 S.W.2d 179 (1947).

To establish an express trust it is necessary to show that before or after the time land was purchased, the one holding title thereto executed and delivered some writing declaring that he held it in trust. Stacy v. Stacy, 175 Ark. 763, 300 S.W. 437 (1927).

Invalidity of an express trust agreement, clearly established, does not convert a transfer into a gift where such transfer was not intended to be a gift, but an oral agreement and surrounding circumstances will be taken into consideration and where a breach of the fiduciary obligation is shown, restitution will be enforced. American Bonding Co. v. Hord, 98 F.2d 350 (8th Cir. 1938).

An express trust can be proved only by some instrument in writing signed by the party enabled by law to declare the trust. Hunt v. Hunt, 202 Ark. 130, 149 S.W.2d 930 (1941).

Suit to impress trust on realty which was conveyed from aunt to nephews on ground that grantees agreed to hold land as trustees was an effort to establish an express trust by oral evidence and within the interdiction of this section. Jones v. Gachot, 217 Ark. 462, 230 S.W.2d 937 (1950).

Where both parties admit the existence of the oral agreement which constituted the express trust it prevents the application of the statute of frauds to an express oral trust of an interest in land. Arnett v. Lillard, 245 Ark. 939, 436 S.W.2d 106 (1969).

A quitclaim deed, signed by the grantor, but giving no instructions to the grantees, fails as an express trust. Bottenfield v. Wood, 264 Ark. 505, 573 S.W.2d 307 (1978).

Fraud.

A mere refusal to perform a parol agreement, void under the statute of frauds, is not of itself fraud. Davidson v. Edwards, 168 Ark. 306, 270 S.W. 94 (1925).

Where there is fraud in procuring conveyance, though absolute upon its face, it may be shown to create a trust. O'Connor v. Patton, 171 Ark. 626, 286 S.W. 822 (1926).

Implied Trusts.

—In General.

The term “implied trusts,” includes resulting and constructive trusts, they arise by implication of law and may be established by parol testimony. Stacy v. Stacy, 175 Ark. 763, 300 S.W. 437 (1927).

A trust created by a purchase of land at a mortgage foreclosure sale by one to whom money was furnished by mortgagor and his wife, without any instrument in writing, was an implied trust, since an implied trust includes a resulting trust. Hunt v. Hunt, 202 Ark. 130, 149 S.W.2d 930 (1941).

A constructive trust may be imposed despite the statute of frauds, because implied trusts, such as constructive trusts or resulting trusts, are specifically exempted from the application of this section. Cole v. Rivers, 43 Ark. App. 123, 861 S.W.2d 551 (1993).

—Constructive Trusts.

The rule that a mere verbal agreement by which one party thereto promises to buy in at a judicial sale lands of the other party and to hold the same for his benefit does not create a constructive trust, the agreement being within the statute of frauds, is subject to the exception that where the purchaser buys lands of another, under such a state of facts as would make it a fraud to permit him to hold on to his bargain, a trust will be raised. Strasner v. Carroll, 125 Ark. 34, 187 S.W. 1057 (1916).

Oral transaction held to create a constructive trust to which the statute of frauds did not apply. Edlin v. Moser, 176 Ark. 1107, 5 S.W.2d 923 (1928); Armstrong v. Armstrong, 181 Ark. 597, 27 S.W.2d 88 (1930); Walker v. Biddle, 225 Ark. 654, 284 S.W.2d 840 (1955); Davidson v. Sanders, 235 Ark. 161, 357 S.W.2d 510 (1962); White v. White, 254 Ark. 257, 493 S.W.2d 133 (1973); Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).

This section does not apply to a constructive trust between mother and daughter. Grissom v. Bunch, 227 Ark. 696, 301 S.W.2d 462 (1957).

Proof of fraud is not essential to the establishment of a constructive trust. Davidson v. Sanders, 235 Ark. 161, 357 S.W.2d 510 (1962).

Before a constructive trust will be declared it must appear either that the promisor who later obtains title to the property never intended to perform his promise, or that there was a confidential relationship between the promisor and promisee. Kelly v. Weir, 243 F. Supp. 588 (E.D. Ark. 1965).

A constructive trust on lands may be based upon a parol agreement. Kelly v. Weir, 243 F. Supp. 588 (E.D. Ark. 1965).

Simply because the grantees were related to the grantor could not, alone, create a confidential relationship imposing a constructive trust on the land. Bottenfield v. Wood, 264 Ark. 505, 573 S.W.2d 307 (1978).

Although a grantee's oral promise to hold the title to land for a third person is unenforceable, a constructive trust will be imposed if it is shown by clear, cogent and convincing evidence that the grantee's promise was intentionally fraudulent or that the parties were in a confidential relationship. Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).

—Resulting Trusts.

Where title to land purchased and paid for by a minor son was taken by his father on account of the son's supposed incapacity to take title, an express oral agreement of the father to hold as trustee for the son did not change the nature of the transaction from a resulting trust to an express trust which would be within the statute of frauds. Grayson v. Bowlin, 70 Ark. 145, 66 S.W. 658 (1902).

Transactions between the parties subsequent to the purchase of certain lands cannot create a resulting trust, but if such a trust arises out of the purchase of the land, its character as a resulting trust is not altered by a writing subsequently executed, which acknowledges the existence of the trust; nor does the fact the writing acknowledges the existence of the trust change the character of the transaction from a resulting trust which may be established by parol to an express trust which is within the statute of frauds. Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402, 200 S.W. 1029 (1918).

Resulting trust, exempt from this section, held to be established. Davis v. Dickerson, 137 Ark. 14, 207 S.W. 436 (1918); Lisko v. Hicks, 195 Ark. 705, 114 S.W.2d 9 (1938); Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944); Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951); Gorenflo v. Brown, 233 Ark. 221, 343 S.W.2d 564 (1961).

A parol agreement that another shall be interested in the purchase of lands or a parol declaration by a purchaser that he buys for another without an advance of money by that other falls within the statute of frauds and cannot give birth to a resulting trust. Roberts v. Pratt, 147 Ark. 575, 228 S.W. 379 (1921).

Wife may show by oral testimony that her money went into purchase of land held in husband's name, that she had a beneficial interest therein, so as to establish a resulting trust. Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805 (1944).

Resulting trusts, such as that created when a husband purchases property with his cash in his wife's name because he believes that he is dying, with the understanding that if he lives the deed will be reformed to create an estate by the entirety, but where the wife dies soon afterward, are excepted from the statute of frauds and may be established by parol evidence. Phillips v. Tramble, 224 Ark. 359, 273 S.W.2d 400 (1954).

A resulting trust arises in one of the following situations: where a private or charitable trust fails in whole or in part; where a private or charitable trust is fully performed without exhausting the trust estate; and, where property is purchased and the purchase price is paid by one person and at his direction the vendor transfers the property to another person. Bottenfield v. Wood, 264 Ark. 505, 573 S.W.2d 307 (1978).

Pleading.

This section is not applicable where neither party, in the trial below, pleaded or relied on the statute of frauds as a basis for affirmative relief or as a defense. Arnett v. Lillard, 245 Ark. 939, 436 S.W.2d 106 (1969).

Secret Trusts.

There is a strong presumption against the existence of any secret orally created trust. American Bonding Co. v. Hord, 98 F.2d 350 (8th Cir. 1938).

Sufficiency of Memorandum.

Memorandum which was susceptible to several interpretations was not clear, unequivocal and convincing evidence which was required to show that husband's deed to his subsequently deceased wife was mere mortgage, where husband's testimony relating to transaction was indefinite. Umberger v. Westmoreland, 218 Ark. 632, 238 S.W.2d 495 (1951).

Cited: Payne v. Box, 231 Ark. 301, 329 S.W.2d 181 (1959).