Opinion on Petition por Rehearing.
Hackney, J.— One contention on behalf of the appellants is that at common law a parol trust in personal property was permitted, and that as our statute of trusts relates to real estate alone they have maintained their claim to a trust in the personal estate of the testator, alleged to have been of the value of *207$100,000.00. It may be conceded that, at common law, a trust in personal property may be created by parol. Bispham Eq., section 63; 1 Perry Trusts, section 86; Lewin Trusts, section 53; Hill Trustees, section 57. Our statute of trusts and powers probably does not, deny the common law rule in this respect.
But in this case, the controversy is as to whether the testator, who made a plain and unequivocal devise of his personal estate to his wife, did, in any manner, not forbidden by law, revoke that devise and create a new disposition of said estate. Eevocation cannot be made except by intentionally destroying the will, or by the execution of a writing, subscribed and attested in manner as^required in the execution of wills. E. S. 1894, sedflHBK29. Certainly a partial revocation or an amway of codicil, falls within this statutory ru®N!5e rule with relation to precatory trusts, fortified by the authorities cited in the original opinion, recognizes no distinction between real and personal property. The rule which denies force to language, relied upon to cut down an unequivocal disposition of property, unless it clearly and unmistakably discloses the testator’s intention to do so, admits of no distinction between devises and bequests. The rule which forbids evidence in parol to contradict instruments of writing knows no difference between writings as to real and those as to personal property. To our minds it seems clear that no question arises in this case as to the power to create a trust in personal property by parol. The question is as to a method of destroying the force of a valid testamentary disposition of such property.
If no will existed it is doubtful if the letter and the promise of Mrs. Orth, as to the personal property, would avoid the statute of frauds and perjuries. E. S. *2081894, section 6635; Wallace, Admr., v. Long, Gdn., 105 Ind. 522. But of this we need not decide.
It is further contended that the rule that one, occupying a fiduciary relation to another and obtaining an advantage by reason of that relation, is presumed to have obtained that advantage fraudulently, applies in this case. We are not prepared to sanction the doctrine that a devise to the wife by her husband is presumptively fraudulent, and that therefore equity will charge the property with a trust in favor of those who may stand in the relation of heirs. The rule stated by the learned counsel for appellants exists, but it has never been applied, so- far as our observation and researches have disclosed, to- the case of a testamentary provision by a husband for his wife, in the absence of fraud, undue influence-, or some positive advantage taken to induce the husband, against his free will, to make such provision. That a, man shall make liberal provision for his wife is not unnatural, but is a duty. That Godlove S. Orth should have given his whole property, in his financially embarrassed condition, to his wife, in the hope that, by prudence and careful management, and the disposition of her separate property, she might save from the wreck something, first of all, for her maintenance, was not unnatural nor suggestive of undue influence or overreaching. See Montgomery v. Craig, 128 Ind. 48.
The questions to which we have referred were not argued upon the original hearing, nor was the further-contention that the trust sought to be enforced was such as the statute of trusts and powers, excepted from its operation as a constructive- or implied trust. The latter contention we regard as in conflict with the position originally assumed, as disclosed by our former opinion. We do not, therefore, consider that contention.
*209Having again considered the questions originally passed upon, and finding no sufficient reason to reverse the conclusion then reached, the petition for a rehearing is overruled.