On Motion For Rehearing.
McDONALD, Chief Justice(dissenting)
Rehearing denied.
The facts as stated in the majority opinion are correct.
The only cases cited by the majority opinion are: McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412; Colton v. Colton, 127 U.S. 300, 8 S.Ct. 1164, 32 L.Ed. 138; Mitchell v. Mitchell, Tex., 244 S.W.2d 803, 806; Avis v. First Nat. Bank, 141 Tex. 489, 174 S.W. 2d 255; Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363; Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876; Bell v. Board of Directors of Pythian Widows and Orphans Home, Tex.Civ.App., 219 S.W.2d 93. All of these cases deal with the construction of that which had been written in a will, and not with any question of a trust sought to be established by "parol” testimony, and en-grafted upon a will, separate and apart from any of the provisions contained in the will itself. The Colton case actually supports the position here taken, when speaking of the discretion of a trustee to carry out or not carry out the provisions of a precatory trust set up in a will: “the court will interfere wherever the exercise of the discretion by the trustees is infected with fraud * * * they decline to undertake the duty of exercising the discretion * * * where [it] is mischievously and erroneously exercised”-. [127 U.S. 300, 8 S. Ct. 1174.]
This is a suit to engraft a parol trust on Lud Williams’ will, which trust is based on oral agreements between him and his wife, both before and after he executed his will. The agreements are undisputed and the jury so found. These agreements —in view of' the highly confidential relationship of man and wife — -and the implicit trust and confidence that he had in her— operated to create a mandatory trust in favor of appellants on one-half of the property Mrs. Williams had at death.
Where a grant is made by deed or will on the faith and because of a promise, a *565breach of the promise is a constructive fraud not to be tolerated in equity. Clark v. Haney, 62 Tex. 511; Faville v. Robinson, 111 Tex. 48, 227 S.W. 938; Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985; 157 A.L.R. 1007; Sparks v. Mince, Tex.Civ. App., 138 S.W.2d 203; Knight v. Tannehill Bros., Tex.Civ.App., 140 S.W.2d 552.
The undisputed facts and findings of the jury in this case are that Lud Williams left his property to his wife upon her promise made both before and after the ■execution of the will that she would leave ■one-half to appellants. The jury further found that the agreement was such she did not have the right to dispose of such property by her will wholly at her discretion, but that her promise obligated her to carry out her husband’s desires. Mrs. Williams intended to keep her promise and executed her first zvill carrying it out. This zvill remained in effect for 20 years. It was not until age had impaired her faculties that she wrote a second will repudiating her agreement.
This case, while a suit to engraft a constructive trust, by parol on a will, to carry out an agreement, is likezvise a suit seeking relief from a legal or constructive fraud (tho not intentional) which resulted, when the promise made by Mrs. Williams to her husband was repudiated by her. When she committed legal fraud, oral testimony is admissible to show the true conditions, circumstances and agreements, by and on which the grant to her was made. 42 Tex.Jur. 685, par. 74 says:
“The Supreme Court has announced that where a grant was made on the faith and because of a promise, it is necessarily a fraud for the grantee to repudiate the promise and so oral testimony will be received to show the conditions on which the grant was made. In such case, the admission of oral testimony is warranted by the exception always made in stating the parol evidence rule, viz; that such rule does not stand in the way of oral proof of fraudulent conduct. Also equity considers that the abuse of a confidential relation is a fraud, and parol evidence is admitted to show such abuse.”
Once fraud is established the terms of the written instrument no longer -control —but equity disregards the language of the instrument, and affords full relief by enforcing the promise upon which the grant was based. The law does not deny relief from -fraud' merely because to do so would conflict -with the terms of a written instrument procured by fraud. Proof of fraud admits evidence to contradict or vary the terms of the instrument.
In this case the parol trust sought to be enforced is supported by the very strongest possible principles bf equity, of justice, of right, and of good conscience.
For the reasons stated it is my conviction that under the law and the facts, motion for rehearing should be granted, and judgment should be rendered in favor of appellants.