The legal title to this property passed by the conveyance in 1885 to Mrs. Avery. She died without will. Prima facie, therefore, the title then passed to her heirs, the appellees. The plaintiff insists that in fact the purchase price was paid by Mr. Avery, and paid under an oral agreement, whereby a resulting trust was created which changed the course of the title; and the first questions are: Whose money paid for the lot, and was there such an agreement, and, if so, what were its terms?
That the money which was used in making payment for the lot was the money of Mr. Avery is not seriously questioned. Both Mr. and Mrs. Avery lived very economically, and this money was accumulated out of savings from the salary he received from the government. At the time of their marriage, Mrs. Avery had a small amount of money on deposit in a savings bank in Connecticut, and the books of the bank showed that no part of that amount was drawn out at or near the time of this conveyance. Her repeated declarations were to the same effect, and that Mr. Avery's money had paid for the property.
The trial court also found that there was an oral agreement an agreement made at the time the property was conveyed to Mrs. Avery-that she should hold the property during her lifetime, and that she should make a will by which it should pass at her death to the Smithsonian Institution. The court of appeals held that the testimony did not establish the alleged agreement so clearly as to justify a court of equity in recognizing it as against the legal effect of the conveyance. We are constrained to differ with the court of appeals, and to agree with the justice of the supreme court. In a careful and exhaustive opinion, Justice Hagner reviewed the evidence, and his conclusions therefrom commend themselves to our judgment. In view of this opinion, it seems unnecessary to recapitulate all the testimony, and we shall content ourselves with stating the salient features thereof.
Mr. Avery was for some 32 years in the employ of the government, and an enthusiast in the scientific studies which he was pursuing in connection with such service. Prior to the purchase of the lot in controversy, and on September 13, 1882, he had made a will, in which, after giving to his 'wife, Lydia T. Avery, if she outlives me, in trust while she lives, all my real estate and personal property, * * * to hold and to use for her support a long as she lives, and to keep in good condition for its final disposition,' he declared:
'Having always had a love for the sciences, and having acquired most of my property while toiling in humble capacities to extend and diffuse knowledge, I have concluded to giving all my real and personal property, with such exceptions as I may make hereafter in this will or in codicils annexed thereto, to the board of regents of the Smithsonian Institution, to provide for its safekeeping, and to use the income from it in extending the sciences by publishing.' etc.
'This fund may be called the 'Avery Fund,' or the 'Fund Contributed by Robert S. Avery and His Wife, Lydia T. Avery, for the Extension of the Sciences'; and all publications made with this fund must have a note thereon stating that they have been thus published.
'After the death of my wife, the board of regents of the Smithsonian Institution will be expected to select an executor of this will, and provide for making the fund as useful as possible, limiting its use as much as they can to the objects specified.'