OPINION DENYING A REHEARING.
(Filed February 23, 1921.)
The petition in this case asked the reformation of a will by the insertion therein of a devise which the scrivener had fraudulently caused the testator to believe was a part of the instrument at the time it was executed. A demurrer to this pleading having been sustained, the ruling was affirmed upon *306the ground of a want of power in the courts to give such relief. In the opinion it was said in substance that if the person who acquired title to the land by virtue of the omission of the devise in question had been a party to the fraud, but not otherwise, a trust might be impressed upon the property for the benefit of the intended devisee. In a motion for a rehearing it is strongly urged that the present owner of the land (the testator’s heir) should be decreed to hold it as trustee for the person defrauded.
In the motion expressions of courts are quoted to the effect that whenever, even without fraud, property is so acquired that it is against good conscience that it should be retained, equity raises a constructive trust which is not within the statutes, and which may be proved by parol. (See cases cited in Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713; 39 Cyc. 169.) Of an expression of that character this court has lately said in a case involving the statute in relation to oral trusts—
“The statement may be found in opinions of the courts that trusts may be raised in equity with respect to property acquired without fraud, when it would be against equity that it should be retained. In that form the statement furnishes no rule for the decision of controversies. Going further, it is sometimes said that a constructive trust will arise whenever it would be inequitable for the person holding the legal title to retain thé property. The statement is too broad, and if applied literally, would nullify the first and sixth sections of the trust statute. However inequitable and morally reprehensible it may be that property conveyed upon an express oral trust should be retained in violation of the agreement, a trust may hot, under those circumstances, be engrafted upon a deed absolute in its terms, because if that were the rule, deeds would no longer be valuable as muniments of title. In the opinion of the legislature, it is better for the social order and general welfare that a few persons, who might not observe the statute, should suffer hardship, than that the security of all titles should be destroyed.” (Silvers v. Howard, 106 Kan. 762, 768, 190 Pac. 1.)
The facts pleaded in the petition now under consideration make a strong appeal for the granting of relief if within the power of the court. And whenever it can be demonstrated that a testator intended to dispose of property in a particular way and was prevented from doing so by some fraud or mistake, or other influence for which he was not responsible, there is plausibility in the suggestion that upon the general principles cof equity that which ought to have been done should be treated *307as having actually been accomplished. But if such a practice were established the result would obviously be that the property of a testator would often be disposed of, not according to the directions which in fact he had given in his will, but according to such directions as the parties in interest would be able to show by oral evidence that he intended to give and believed he had given therein. Whatever term might be used to describe such procedure it would amount to the reformation of the will. The steadfast adherence to the rule requiring the purpose of a testator to be actually reduced to writing in order to be given effect may work a-hardship in a particular instance, but the policy is one which legislatures and the courts have deemed to produce the best results in the long run.
If a person were to sign a will and thén by force or fraud be prevented from having it witnessed, his intention would be clear and there would be ground for urging that substantial justice would be promoted by distributing his property in the way he had indicated. But such a course even if described as imposing a trust upon the' property acquired by each devisee or legatee would be destructive of the statute prescribing the requisites of a valid will.
Where the owner of property is induced to refrain from making a particular testamentary disposition of it by the promise of the person who would otherwise receive it at his death, to carry out his wishes in the matter without a provision to that effect being inserted in the will, the performance of the agreement will in effect be enforced by impressing a trust upon the property in the hands of the promisor, upon the theory of his having obtained it by his own wrong amounting to a fraud. (39 Cyc. 177-8; 26 R. C. L. 1234, 1241-2; Notes: 8 L. R. A., n. s., 698; 31 L. R. A., n. s., 176; 33 L. R. A., n. s., 996.) Where the devise actually made is to two or more persons as joint tenants (using the phrase in its strict technical sense) the promise of one has been held to disable the others-to take a beneficial ownership, on the theory of the unity of their title. (Note, 31 L. R.A., n. s., 178; 39 Cyc. 177-8.) Where the devise is to several persons as tenants in common the promise is held not to affect the rights of a devisee who was not a party to it. (Id.) In one instance a promise made by two of three devisees in behalf of all was held to bind the third (Amherst *308College v. Ritch, 151 N. Y. 282), but the decision was later explained as not departing from the general rule making the distinction already noted with respect to joint tenants and tenants in common. (Fairchild v. Edson, 154 N. Y. 199, 221.)
The motion for a reheating concludes with a request that, even if the petition in its present form be held not to state a cause of action, the district court be directed to permit new allegations to be added thereto by amendment. To avoid possible misapprehension we will say that there is nothing in the decision or opinion rendered by this court to prevent such amendment. (Thresher Co. v. Nelson, 106 Kan. 716, 189 Pac. 907; 4 C. J. 1225-6.)
The motion for a rehearing is overruled.