The case was continued for advisement, and the opinion of the Court afterwards drawn up by
Weston C. J.The bill avers, that the meeting-house in question, was purchased by Winter, Massey, and Paine, in trust for the society, to whom it was to be conveyed when the trustees were relieved from the liability they had assumed on their account. That, for reasons assigned in the bill, no trust was expressed in the deed. That the society was formed, proceeded to exercise acts of ownership over the house, and paid a considerable ’ part of the purchase money, with the concurrence of the trustees.
Without adverting to the doctrine of resulting trusts, it is a principle well established in equity, that a trust need not be created by writing. It is sufficient if it be proved in writing, under the hand of the party to be charged. Steere v. Steere, 5 Johns. Ch. 1. Whether there did or did not exist written evidence of the trust charged, does not appear by the bill. Before the heirs at law of Winter, in whom the fee of the part of the property conveyed to him vested by law, were made parties to the bill, it might be questionable, whether it could be sustained against the administrators alone; but there can be no question but they are properly made parties with the heirs at law. Winter being deeply insolvent when he deceased, his administrators have a contingent interest in the real estate, of which he died seised, to be sold and administered, for the benefit of his creditors.
The heirs at law, having been made parties, under leave to amend, and having been defaulted, the question presented for our consideration, on the demurrer interposed by the administrators, is, *283whether the plaintiffs have set forth any case, entitling them to relief under their amended bill. By the demurrer, the averments in the hill are admitted to be true. No question arises as to the nature or competency of the proof, which the plaintiffs might have had in their power to adduce. The bill charges a trust. The demurrer admits it. A case then is presented within the jurisdiction of the Court, entitling the cestuis que trust to equitable relief; and the demurrer is therefore overruled.
The heirs at law having been defaulted, as against them the bill is to be taken as true. In the answer, put in by the administrators, they do not deny the trust charged, but distinctly admit it. Upon this part of the case therefore, the plaintiffs are relieved from the necessity of exhibiting proof, and tbe Court from considering the nature and competency of such as might have been furnished. The answer avers, that one thousand dollars, part of the purchase money, was advanced by Winter, in his lifetime. This is admitted, or is not controverted ; but it is insisted, that it may have been a gratuity, for the use of tbe society, in which Winter took a deep interest ; and that this may well be presumed. We do not regard this fact of essential importance in deciding upon tbe equity of the case. Winter being deeply insolvent, if be advanced the thousand dollars as a gratuity, it was out of the funds of bis creditors. Aside from the trust set up by the plaintiffs, the creditors have a right to require, that this property should be sold for their benefit. The plaintiffs invoke the aid of this Court, to enforce a trust in their favor. Claiming relief in equity, it can bo awarded them only upon the condition, that they do equity. And we are satisfied, that equity requires, that they should refund to the creditors of Winter, to be paid to the administrators in trust for them, the thousand dollars, which was abstracted from means to which they were justly entitled.
Upon the whole case, the Court order and decree, that the plaintiffs causing the administrators of Winter, as such, to be discharged from the note, signed by him for the purchase of the meeting-house, and paying also to the administrators the sum of one thousand dollars, to be administered according to law, that thereupon the heirs at law of Samuel Winter, deceased, convey to the second Unitarian Society in Portland, by good and sufficient deed, all the right, title and interest in and to the meeting-house in question, of which the said Winter died seised.