Dissenting. — I am unable to agree with the majority of the court either upon the law or the facts as stated and given in the majority opinion. This action was brought upon the theory that Ezra Ray Bliss, deceased, intended that the proceeds of these life insurance policies should go to the use and benefit of his wife and child. It appears *488that on the 23d day of June, 1904, Ezra Ray Bliss, being then unmarried, took out a life insurance policy in the Bankers’ Reserve Life Company of Omaha, Nebraska, for $5,000, and named his father and mother beneficiaries in said policy, and it is the proceeds of that policy that is involved in this case. It also appears that Ezra Ray Bliss took out an accident insurance policy in the Illinois Commercial Travelers’ Association of Chicago, for $5,000, and his mother was named the beneficiary therein. Said policies were taken out prior to his marriage with Ida May Bliss, one of the plaintiffs herein, which marriage occurred on the first day of January, 1907. On the first day of November, 1907, a female child was born to said deceased and the plaintiff, Ida May Bliss. It clearly appears from the evidence that Ezra Ray Bliss thought his wife was incapable of making investments wisely of the proceeds of said policies, and he therefore desired them to be in the hands of parties trusted by himself, and those parties were his father and mother. Said policies were not delivered to the father and mother but were deposited in the bank at Emmett and delivered to them after his death.
On February 2, 1908, at American Falls, Idaho, Ezra Ray Bliss accidentally received a gunshot wound, of which he died a few hours. thereafter. He left no estate except a homestead and certain personal property not to exceed the value of $1,400.
On the trial certain issues were submitted to the jury and upon those the jury in substance found that Ezra Ray Bliss did not part with the control of said policy of insurance prior to the time of his death, and that it was.the clear, intention and desire of said Ezra Ray Bliss that his wife and child should receive the benefits to be derived from said insurance policy, and that the defendants, who are appellants here, admitted that they held the proceeds of said policy of insurance for the benefit of said plaintiffs, the wife and child of said deceased, and that said defendants had paid over some interest or - income of the proceeds of said insurance policies to the plaintiffs, and that the defendants received said $5,000, the proceeds of said insurance policy, as trustees, *489subject to a trust in favor of tbe plaintiffs, namely, tbe wife and child of said deceased, Ezra Ray Bliss, and that said sum of money was received by them knowing that the proceeds were to be held and used for the benefit of the said wife and child. Upon said special findings and the evidence, the court made findings of fact covering the entire case, in accordance with the special verdict of the jury, and found in favor of the plaintiffs upon all the material issues made by the pleadings; and as conclusions of law found that the proceeds of said insurance policy is a trust fund and the property of the plaintiffs, and that the defendants are not fit or proper persons to act as trustees of said trust fund, and entered judgment in favor of the plaintiffs.
I think the evidence is amply sufficient to support the findings made by the court and that the findings are sufficient to support the judgment. There is a substantial conflict in the evidence, and under the well-established rules of this court, the judgment ought not to be disturbed.
The majority opinion holds that the evidence does not show that the beneficiaries named in the policy were ever constituted trustees, and for that reason the appellant took the absolute title to said $5,000. It is there held that the oral testimony is exceedingly meager and desultory, and that it revolves about and refers back to a conversation which took place between the insured and his father shortly subsequent to the birth of the child, and my associates then proceed to quote a very “meager” portion of the evidence, and say: “This constitutes the entire transaction out of which it is claimed this trust arises.” I maintain that the testimony quoted is only a meager part of the testimony that tends to show, and does in fact show, that the clear intention of Ezra Ray Bliss was to establish a trust in favor of his wife and child, and that the appellants were intended to be the trustees and nothing more.
It appears from the evidence that the plaintiff’s father was unfriendly toward her husband, and the husband in turn conceived a violent dislike for his father in law, Mr. Cook; that the deceased was engaged in the life insurance business, *490and after his marriage talked very often to other persons about said policies held by him for the protection of his wife and child. To some of them he stated that his wife was not competent to care for the proceeds of the policies, and knowing that she would naturally look to her father, a successful business man whom he very much disliked, for the investment of the funds, did not change his policy so as to give the proceeds to her directly. It was natural, therefore, for him to be satisfied with his own father and mother as trustees, the beneficiaries named in the policy before his marriage, and I think it was natural to assume that the young man would not allow the only asset, or prospective asset, which he had, of any considerable value, to be given to his father and mother, who already were possessed of ample means, and leave his wife and child almost penniless. It certainly would be a shocking commentary on the character of the young husband to hold that he was willing to leave his wife and child penniless and give substantially all of his property to his father and mother, who were in good financial circumstances, and thus place his wife and child under their absolute control and power; and it seems to me that it reflects on the character of the father and mother, who are sordidly and avariciously trying in this ease to prove their son devoid of all feeling for his wife and babe and of the honorable principles and natural impulses which young men like him usually possess. The testimony shows that the young people were hard-up, and the question as to paying the premiums on said policies was discussed between them, and the young husband suggested that the amount of money to be paid annually as premiums on said policy, which was about $300, would give to his wife many comforts and conveniences which she could not have if the policies were kept alive by paying the premiums. She testified that during the money panic in 1907 they were short of funds and were in very straitened circumstances for quite awhile, and her husband said the premium would be due in a short time and lie thought he could not meet it, and spoke of giving up the policies so that his wife might enjoy more comforts and things she could not have if he paid the premiums, and she *491told him not to give up the policies, that she would help in every way she could to make the payments, and testified that she did do so by doing her own washing and living as economically as possible, and ate only two meals a day for a time; that she saved five dollars a week on living expenses and that she did everything she could to assist him in the payment of the premiums. This, it seems to me, is a very significant fact. The young husband must have been of a peculiar disposition indeed if he wanted to deprive his wife of certain living comforts and thus save money by which to pay the premium on policies, the proceeds of which were to go to his parents in case of his death, and require her to make personal sacrifices for the benefit of the old people who were in affluent circumstances. I should hardly think that any right-minded parents would be willing to give their deceased son the reputation they are attempting to give him in this case.
The plaintiff, Ida Bliss, testified that she had a conversation with Mr. and Mrs. Bliss shortly after her husband’s funeral, on the ears between Pocatello and Nampa, and that Mr. Bliss told her that she was well provided for — that she was very well off, and she asked him in what way, and he said by insurance; that there was $10,000 insurance that Ray had, and, of course, it would be paid; and that Mrs. Bliss in that conversation said substantially the same thing. It was repeated that the plaintiff was well provided for by insurance and that she would not need or want for anything. In another conversation she had shortly after that in Emmett, she testified that Mr. Bliss asked her to his house to see him on business and she went and they talked over the insurance policy and he said: “Of course, you know how these papers are made out,” and she said, “No, Mr. Bliss, I don’t; I have never seen the policies that I remember of,” and he went on to say that he and Mrs. Bliss were named as beneficiaries in both policies, but stated: ‘ ‘ This money is not ours and we do not claim a cent of it.” Mrs. Bliss was present at the time and she said: “No, we don’t claim a cent of it; there is not a cent of it belongs to us, and at any time that we should ever use a cent of it, I hope that Grod will strike us dead.” *492This conversation occurred about the time the money was paid by the insurance company. During that conversation Mr. Bliss said that they (he and his wife) had agreed between themselves to hold the money in trust for the baby and herself, and that they did not consider that she was competent to loan this money, and thought they would hold it themselves and make the investments for her, and said they would invest the money in a safe place and that she could have the accumulations on the money when they came due, and he asked her if she was satisfied with that and she said she was. She further testified that she told Mr. Bliss during that conversation that she thought she was competent to handle the money herself, and Mr. Bliss replied that it was not Ray’s intention that she should hold the money herself, and he went on to tell about being duck hunting with Ray shortly after the baby was born and that he had insisted on Ray’s changing the policy to his wife’s name, but Bliss said Ray insisted that it should be left the way it was, and stated that he knew his father and niother would take care of his family and not let them want for anything as long as they lived; that he had insisted on Ray’s changing it and Ray told him he would not change it, that he would leave it in “trust” with them for the baby and herself. Some time after that she went to Mr. Bliss and asked him if he would make some written statement that he would pay her so much a month or so much a year, and he replied that he would not, and said: “You can trust me, Ida, without that,” and he promised to give her $1,000 a year, five hundred every six months, and told her to come to him as she would to her own father. She thereafter went to Mr. Bliss and asked him for money and he said he' would pay her $500, and in a short time after that he told her that he had something for her at the house, and she thought perhaps it was the $500 that he had promised, so she went to Bliss’ house and Mrs. Bliss gave her an envelope, which she did not open until after she left the house, and when she opened it, found an itemized account against her for $574.50, which account included an itemized statement of money paid out by the appellant for funeral ex*493penses of Ms son, and other matters, and also contained an item of $1.24.50, money which the plaintiff had placed in Mr. Bliss’ hands to carry for her from Pocatello to Emmett. About six months thereafter she again asked her father in law for $500 and he tried to appear surprised that she should ask him for any money at all, and said: “I don’t know what you mean by asking me for money,” and said that he did not consider herself and the baby any relation to him at all and would have nothing to do with them, that he had dropped them completely — meaning the baby and herself; that they (himself and wife) had changed their minds about the money and Mrs. Bliss had decided they would use it in some other way. They had built a home which had cost them a good deal of money, and the father in law also mentioned a lawsuit he had pending and said it took all the money he had and that he was “broke,” anyway, and offered her two dollars, stating she could have that if she wanted it. He also asked her what she had done with her bank account, and she told him. On cross-examination she testified substantially to the same state of facts as she had on direct examination.
Finley Monroe, a disinterested witness on behalf of the plaintiff, testified that within a few days after the burial of Ezra Ray Bliss, he had a conversation with the appellant, Mr. Bliss, in regard to insurance policies or insurance money, and testified as follows:
“Among other things, he stated to me that Ray had $10,000 life insurance at the time of his death and that it was in favor of himself and his wife; now he wanted me to see Ida, he said, as a friend of the family, and impress it upon her the fact that that insurance was hers and the baby’s, and that Ray so intended it, and that she might not feel hard towards him by reason of the policy not having been transferred to her before his death; that is, that she would have no resentment against him or feel that he had been instrumental in not doing so; and he stated that not a dollar of it was theirs, and that they would never apply it to their own use at all; that they had plenty, more than they would ever need themselves ; that they had nothing in the world to live for, only Ida and *494the baby, and that he asked — it was his desire to be appointed guardian of the estate, because he said Ida was but a child and he was satisfied that Bay intended he should look out for them, and he stated that Bay — that he had had a conversation with Bay and told him that he ought to transfer this policy now that he had a wife and baby, and that Bay had said, no, not now, or words to that effect, that ‘if anything happens, you will see that they are eared for,’ and again — several times he repeated the words that not a dollar of it is ours, that it is hers, and Bay intended it for her; and he asked that I be sure to see Ida and have a talk with her; he said: ‘She is nearly sure to go to you, but if it is convenient for me, I will see her myself; she might come to you in regard to the collection of some accounts.’ .... Mr. Bliss was very much affected and the tears rolled down his cheeks when he was talking about the death of his boy; he stated that if he would be allowed to act as guardian of the estate he would consider it as a trust from his dead boy to carry that trust out for Ida and the baby, and that he would not invest the money in anything common, — mortgages, although he could get ten per cent on them in the way of farm mortgages or dwelling mortgages that a common business man might invest in, but he would invest it so there was no possibility of a loss, and he suggested bonds; he had been to the First National Bank and had a talk with Mr. Hayes, cashier of the b.ank, with reference to what interest might be gotten from certain bonds, and was informed it would not be over five per cent; he said that would not cut any figure, it would only amount to $500 a year on $10,000, but it would make no difference from the fact that the investment would be such that if at any time Ida might need it she could get and use part of the principal; and all of the money he and his wife had was hers anyway, and he would consider it a pleasure if she would come to him for any needs she might have; that his money was her money. I told him I was confident such would be the case, if it was agreeable to Ida, and at his request, as a friend, I would see her and was satisfied she would come to me, because I had always been a friend of the family and in business *495matters I was satisfied she would come anyway. A short time after that Ida came to me and I made known to her what Mr. Bliss had requested, and it was agreeable. Afterward I met * Mr. Bliss on the sidewalk and stated to him I had seen Ida and it was entirely agreeable to her; that she had stated to me she was going to suggest it herself; that she felt she wasn’t hardly capable from a business standpoint of caring for so much money. Mrs. Bliss was out near the middle of the street in a spring-wagon during the conversation, and she drove up to the sidewalk. I repeated to her the conversation I had had with Mr. Bliss, that it was agreeable to Ida that Mr. Bliss be appointed guardian of the estate. Mrs. Bliss said that not a dollar of it was theirs and not a dollar of it would be used for their benefit; that they had plenty of their own and had nothing to live for except Ida and the baby. She said they would like to have the privilege of assisting in taking care of and educating the baby. She said it was Ray’s intention that the money should be Ida’s, and it was never intended for them oven though it was in their name. That was repeated a number of times. Mr. Bliss repeated that a number of times in the first conversation with him.”
It will be observed that according to Monroe’s testimony Mr. and Mrs. Bliss repeated a number of times that it was Ray’s intention that the money should be Ida’s and that it was not intended for them even though it was in their name. They at that time had no doubt of their son’s intention and knew what his intention was; but evidently their avarice and greed thereafter got the better of them and they concluded to defeat their son’s intention and keep the money themselves.
A Mr. Johns testified on behalf of the plaintiff that he resided in Emmett and that he had a conversation with Mr. and Mrs. Bliss about four months after the death of their son in regard to appraising the insurance money as part of the estate of Ezra Ray Bliss, he being one of the appraisers. He testified that they both agreed that the insurance money should not be appraised as a part of the estate, although they did not intend to use any of it for their own use, as they in*496tended it for the baby — mostly to educate the baby — for Ida and the baby.
Mr. Marquis, who was a resident of Portland, Oregon, and had been affiliated with the Bankers’ Reserve Life Insurance Company and was acquainted with Ezra Ray Bliss in his lifetime and worked with him in soliciting insurance for that company, testified that he was quite intimate with Ezra Ray Bliss, — that they were close personal friends and that Ray had talked over intimate, personal matters with the witness and his wife; that he had a conversation with Ezra Ray Bliss in regard to changing the beneficiaries in his policies, and Ezra stated that his wife had not a great amount of business ability and that he did not care to have her burdened with the investment of a great amount of money. Said witness testified: “We talked this matter over in common because I had my estate left in that manner,” and that he had some correspondence with the deceased in which the deceased asked him to advise him what to do regarding his insurance so as to get the matter in such shape that -he would know the policy would be paid to his wife, or that she should receive the benefit of it.
F. J. Bliss, one of the appellants, was a witness in his own behalf, and testified that he had no recollection of having any such conversations as Ida Bliss testified she had with him on the railroad train. He admitted that he had talked with her but that he had no recollection of any such conversation as she testified to, and he also swore that Ida May Bliss never made any claim to the proceeds of said policies ‘‘that he was aware of”; that he had no recollection of telling her what he wanted to do with this money. Q. “What did you tell Ida Bliss with reference to the proceeds of the insurance policy?” A. “I never told her anything about the proceeds of the policy that I know anything about. I don’t recall anything about it.” He denied in that equivocal way the conversations had with the plaintiff, Ida Bliss, and also denied that he had the conversations testified to by the witness Monroe, and testified as follows: ‘ ‘ There was never any conversation [with Monroe] with reference to the insurance poli*497cíes. I did state to Mr. Monroe that Ida was very much disappointed in not being the beneficiary in the policies; that the policies were left to Ray’s mother and myself and I knew she would be very much disappointed, as she expected they would be made to her. Don’t know why they were not made to her.” A fair inference from his testimony would be that he knew it was the clear intention of his son to leave the insurance money in his hands in trust for his wife and child. His entire testimony is most unsatisfactory, to my mind, and it evidently was to the minds of the jury and the trial court.
Mrs. Adelaide Bliss testified on her own behalf and for her husband. She denied having any conversation with Ida Bliss on the railroad train between Pocatello and Nampa, as testified to by Ida Bliss; that there was no conversation between them .in reference to the proceeds of said insurance policies, and denied that she stated to Ida Bliss, in substance, that “This money is not ours; we don’t claim a cent of it and should we ever at any time use a cent of it, I hope that God will strike us .dead.” The record shows that Mrs. Adelaide Bliss was very likely to make such a statement as this, and it is indicated by the similarity of that language to the language used by Mrs. Bliss when on the witness-stand. She was asked the following question: “What can you say with reference to your agreeing to that conversation and saying that ‘I hope God will strike us dead’?” To which she answered: “I can say — ask God to be my witness — that I never remember saying any such thing.” That very answer shows that she was addicted to the use of such language as Ida Bliss testified to. She admits in her testimony that she did have a conversation with Ida with reference to the policy or its proceeds and that Ida had spoken to her before in regard to the matter; that Ida spoke of “my insurance policy,” and the witness testified that it made her feel queer and she replied, “Ida, that will come out all right.” I should think it would have made her feel “queer” as at that time, under the facts of this case, she and her husband were apparently laying their plans to deprive the wife and baby of her deceased son of substantially all of the estate that he left, and to make *498them paupers or objects of charity. She further testified that she had another talk with Ida Bliss, at which conversation Ida mentioned something about “my insurance” or “my insurance policies,” and witness said, “Why, Ida, you know that you have no insurance policies, as far as I know anything about.” And in that conversation she told Ida that Mr. Bliss had said he would give her $500 a year. She further testified: “I never once thought when the money came into our hands that it was Bay’s intentions that it should be left to us to provide an income for Ida and the baby.” That may be true; the evident avarice and greed of the woman only made her think of retaining it herself. She no doubt concluded that her son was perfectly willing to leave his wife and baby to the charity of the world and give the proceeds of the insurance policy to his own father and mother, who were in affluence at the time and did not need it; and was perfectly willing to have it go out to the world that her son was of the character that would leave his wife and infant child penniless and dependent on the charity of others; that the son would be willing that the wife should scrimp and economize and deprive herself not only of comforts but many necessities in order to save money sufficient to pay the premium upon policies the proceeds of which would go to his already wealthy parents. I should not think parents who had any regard whatever for their deceased-son’s memory would for $10,000 place such a stigma upon his name. She denies saying to the witness Monroe what he testified that she said. The jury and the court heard the defendants testify, and they concluded from all of the evidence that it was the clear intention of the deceased to leave the proceeds of said insurance policy in trust to the plaintiffs, and I think all of the evidence taken together clearly-shows that Ezra Bay Bliss was a decent kind of a young man and was not so heartless as to leave his wife and child in poverty and give almost his entire estate to his parents.
The appellant F. J. Bliss testified that he had given some considerable thought to the matter as to how he could make Ida a gift in order to make her feel that her husband had not *499forgotten her. From that testimony one would infer that he did have an idea that Ida might think her husband had forgotten her when she came to realize that the appellant and his wife were claiming nearly all of the property their son had left. It seems from the evidence that he appeared to be very anxious to make her a present, but was ready to turn her down every time she asked for money, and finally did offer her the big sum of two dollars.
The majority opinion in effect holds that the deceased was'totally wanting in foresight, sentiment or feeling for his wife and child, and states as follows: “In our opinion the insured never thought of creating a trust or naming his parents as trustees, but rather preferred to rely on their sentiments of love and affection and the ties of consanguinity for the care, protection and maintenance by his parents of the wife and babe in event of misfortune overtaking him. Although his parents strenuously resist this action, it does not appear from this record that these old people will prove recreant to the filial faith and confidence thus reposed, or that they mean to abandon this mother and child or give them no aid or assistance.” The evidence clearly shows to me that they have abandoned them and have refused to give them aid or assistance. The sentiment of love and affection and the ties of consanguinity so pathetically referred to by my associates evidently did not amount to much so far as these parents were concerned, for as testified to by Ida Bliss, when she asked Mr. Bliss for money, he said, “I am surprised that you should ask me 'for money. I don’t know why you are asking me for money. I do not consider you any relation to me. I have dropped you and the baby together,” and then he finally offered her the munificent sum of two dollars. I suppose this offer of two dollars made my associates conclude in their opinion that appellants had not abandoned them.
From all of the evidence and the admissions of the appellants themselves, it is clear that the intention of Ezra Ray Bliss was to leave said money in trust for his wife and babe, and as I view it, to hold that the appellants are the absolute *500owners of the proceeds of said insurance policy is to perpetrate a great injustice upon the memory of the deceased and upon his wife and child. Ezra Bay clearly intended to create a trust and did create it and so expressed himself time and again. He did not care to change the names of the beneficiaries in the policies because the persons he desired to act as trustees were already named. He did not care to have his wife and child named as beneficiaries in the policies, for that would have given them the proceeds directly, the thing he wished to avoid. I think Ezra Bay Bliss did as every ordinary man would do under all of the facts of this case. The policy was taken out before he was married. After his marriage he wanted to protect his wife and child and his intention was to have his father and mother take the insurance money as trustees for his wife and babe. They acknowledged time and again that they had so taken it. No particular form of words is necessary to create a trust. (Garrish v. New Bedford Inst. for Savings, 128 Mass. 159, 35 Am. Rep. 370.) The existence of a trust is in every case to be determined as a question of fact, having in view the surrounding facts and circumstances of the transaction, the intention of the parties and the substance rather than the form of the instrument. (5 Ency. of Law, 2007, Supp.; Robb v. Washington etc. College, 103 App. Div. 327, 93 N. Y. Supp. 92; Hirsch v. Auer, 146 N. Y. 13, 40 N. E. 397.) Trusts may be created in personal property by parol and no particular form of words is required to accomplish the result. Trusts of personal property may be created, declared or admitted verbally and proven by parol evidence. (2 Pomeroy on Equity Jurisprudence, p. 1492; Clapp v. Emery, 98 Ill. 523; Reiff v. Horst, 52 Md. 255; 19 Dec. Digest, p. 1490, pars. 17, 18.) The proceeds of a life insurance policy may be made the subject of a trust. (Silvey v. Hodgdon, 52 Cal. 363; Austin v. Wilcoxon, 149 Cal. 24, 84 Pac. 417; Woodruff v. Tilman, 112 Mich. 188, 70 N. W. 420.)
In Hirsh v. Auer, 146 N. Y. 13, 40 N. E. 397, the court said: “The fact that the trust dealt with a contingent interest of the insured in the certificate of insurance is of no moment. *501That interest became vested at the death of the insured, and the beneficiary having collected the insurance money, the trust, under the agreement creating and acknowledging it, attached to the fund.” (See, also, Catland, Executor, v. Hoyt, 78 Me. 355, 5 Atl. 775.)
The appellants had no vested interest in said life insurance policy or its proceeds, and it was1 subject to the free disposal of the decedent at any time. They never had possession of the policy until after Ezra Ray’s death. There can be no doubt of the intent of' Ezra Ray Bliss in this matter when all of the evidence in the case is taken into consideration. It is a well-established rule that it is not essential for the creation of a valid trust that the trustees know of or consent to the trust. The main contention of the appellants is that the trust was not proven by clear and convincing evidence. The existence of a complete trust is in every case to be determined as a question of fact, having in view the surrounding facts and circumstances of the transaction, the intention of the parties and the substance, rather than the form, of the instrument.
In Bollinger v. Bollinger, 154 Cal. 695, 99 Pac. 196, is a statement as to the meaning of clear, satisfactory and convincing evidence to show the creation of a trust by parol, and the court said:
"Appellant invokes the rule that, to prove a trust by parol under conveyance absolute in terms, the evidence' must be clear, satisfactory and convincing. The rule invoked is amply supported by authority, and is founded in sound reason. But its proper application, where there is substantial evidence to support the existence of a trust, must be left largely to the trial court. As was said in Harris v. Harris, 136 Cal. 379, 69 Pac. 23, ‘Whether the evidence in any particular ease is of this character [clear, satisfactory, and convincing] must be determined by the trial court, and its determination thereon will be accepted by this court as conclusive.’ ”
This court said in Morrow v. Matthew, 10 Ida. 423, 79 Pac. 196, as follows:
*502“Where, however, the record discloses such facts that a fair and reasonable person might conclude therefrom as to the execution, terms and conditions of the contract, I do not see how an appellate court is justified in saying that it did not appear clearly and satisfactorily to the trial court. Evidence entirely clear and convincing to the trial court who saw and heard the witnesses might, when in cold type upon the record, leave doubts in the minds of the members of the appellate •court, but I do not think they should reverse the judgment on such grounds.”
In the case at bar, the jury and court heard the witnesses testify, saw their demeanor on the stand, and upon directly conflicting testimony found in favor of plaintiffs.
It is stated by Perry in his work on Trusts, vol. 1, sec. 137, that “The facts in all cases must be proved with great clearness and certainty, especially when the claim depends upon mere statements; and facts that only base a conjecture that the conditions of a resulting trust existed are insufficient. The certainty required, however, is only such as is sufficient to satisfy the jury of the existence of the trust; and it is error to charge that the ‘clearest and most positive proof’ must be given.” At see. 159 the same author says: “If the declaration of trust is too imperfect to establish that purpose, and yet plainly shows that the intention was that the donee should not take beneficially, and that the sole purpose of the gift or grant was to carry out the purpose of the trust, which fails, the donee will take in trust for the donor of his heirs,” and not for himself.
In regard to the declarations that were made by the insured as to his intention to make the beneficiaries therein named trustees for the plaintiff, we think such declarations were amply sufficient to show, and do show, what his intentions were.
In Gerrish v. New Bedford etc. Bank, supra, the court said in regard to such evidence:
“At the trial, this evidence was rejected, because, in the opinion of the judge, the testator had not done what was *503necessary to create a trust. But whether he had. done enough depended, as we have seen, on whether his conduct and declarations manifested a completed and executed intention in regard to it. Notice to the donee is indeed not necessary when other acts or declarations of the donor are sufficient and complete in themselves; but, where the transaction is capable of two interpretations and the settlement is merely voluntary, it is plain that notice given by the donor to the donee of the existence of the trust would in most cases be decisive on the question of intention.....It is not only satisfactory evidence of an executed intention, but it is a declaration in the nature of an act necessary to complete the transaction and create the trust.”
Counsel for appellant states in his printed brief that appellants were completely heart-broken by the death of their only son and sought solace in the affection and companionship of his wife and child and wished as a matter of parental love to protect and care for them. This statement, under the evidence in this case, goes to the very limit. Appellants sought solace for the death of their only son, not in the affection and companionship of his wife and child, but in depriving them of the substance of the son’s estate and sending them oiit almost penniless on the cold charity of the world or to her own father for support and maintenance. It is stated in Holy Writ, Gen. 2, 24, “Therefore shall a man leave his father and mother and cleave unto his wife; and they shall be one flesh”; but my associates have concluded that this case is an exception to the rule and the husband should desert his wife and child and cleave unto his father and mother.
The majority in their opinion says: “Another thing must not be lost sight of in this case. This suit involves the benefits under an insurance contract which is one of the most sacred contracts that can be made.” Why talk about the sacredness of this policy when it was taken out long before the insured had married the plaintiff and when the evidence shows that the beneficiaries were named without their knowledge or consent and the contract was kept under the control of the insured? They had no vested right in it. Is it any *504more sacred than a will? I say no. Under the statutes of this state, sec. 2736, Rev. Codes,- if after having made a will the testator marries and the wife survives him, the will is revoked unless certain things therein mentioned exist. Why talk about the sacred rights of an insurance contract in a case where the beneficiary has no claim against the insured for an indebtedness due from him and no claim whatever that would begin to measure up to the claim of the insured’s wife and babe, and when it clearly appears from the statements and admissions of the beneficiaries that they knew it was the intention of the insured to leave the amount due on the policy to his wife and child? The sacred rights of the wife and child ought to count for more with a court of conscience than the avarice and greed of the father and mother of the insured.
The judgment of the trial court ought to be sustained, with slight modification.