assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same."

[3-5] Defendant claims that she is not bound by the oral declaration of trust be cause there is no writing which complies with the requirement of the statute. An oral declaration of trust was valid in England prior to the statute of frauds of 1677, but was enacted by the statute to be "utterly void and of none effect." 29 Charles II, c. 3, § 7. Under the statute, a trust must rest on a conveyance in writing, although informal memoranda or subsequent letters signed by the party declaring the same, if they show the nature, character, and extent of the trust interest, are held to be a sufficient declaration thereof. Wright v. Douglass, 7 N. Y. 564; Hutchins v. Van Vechten, 140 N. Y. 115, 35 Ν. Ε. 446. "The trust must have existed at the time of the grant to the trustee, although it may have been effectually declared afterwards." Bates v. Ledgerwood Manuf'g Co., 130 N. Y. 200, 205, 29 N. E. 102, 104. "The recognition of the trust must be found in the writing, and not elsewhere." Cardozo, J., in Sinclair v. Purdy, 235 N. Y. 245, 250, 139 Ν. Ε. 255, 257.

[6, 7] One having been sued with regard to an alleged trust, of which there is no sufficient declaration in writing, may deny the existence of the trust, or may admit it and plead the statute of frauds. Defendant denied the creation of the trust without pleading the statute. The section (section 242) does not prevent any declaration of trust from being proved by a writing subscribed by the party declaring the same. The question arises whether it prohibits an oral declaration of trust as a rule of property and as wholly illegal and void or whether it merely creates a defense which may be waived by failure to plead it.

The provision of the statute of frauds declaring contracts void which by their terms are not to be performed in one year, unless in writing (Personal Property Law [Consol. Laws, c. 41], § 31), may be waived by failure to plead it, either by demurrer (now by motion), if the defect appears on the face of the complaint, or otherwise by answer. Crane v. Powell, 139 N. Y. 379, 34 Ν. Ε. 911. The rule has been applied in actions brought to recover damages for the breach of a contract to convey real property. Real Property Law, $ 259; Matthews v.

Matthews, 154 N. Y. 288, 48 Ν. E. 531. It was held that, where the defendant intends to assail, on statutory grounds, a contract which, although declared void under the statute of

frauds, is not illegal or a mere nullity, he must give notice of this intention to the opposing party by the pleadings.

[8,9] While this is not a case of contract, the same principle applies. In the light of the adjudged cases, a defendant who intends to avail himself of the benefit of the statute to prevent the proof of an oral declaration of trust must plead it. Sinclair v. Purdy, supra, p. 254 (139 N. E. 255). See, also, Bogert on Trusts, 60. "The statute enacts a rule of evidence." Hutchins v. Van Vechten, supra. That which was valid before the statute is not made invalid by the statute, unless the statute is pleaded or the question raised by a motion on the pleadings. To hold otherwise would be contrary to the general spirit of the statute as construed by the decisions of this state, whatever the rule may be elsewhere. 1 Reeves on Real Property, 436; 1 Perry on Trusts (6th Ed.) § 79. The oral declaration of trust may be established, if the parties by their pleadings raise no objection to the lack of written evidence. Oral evidence was therefore competent to establish the trust.

[10, 11] That this action will lie as for partition does not follow. Plaintiff was neither a joint tenant nor a tenant in common of the property at the beginning of the action. He had no seizin in fact or in law, nor had he been disseized by a void devise. He had neither possession, nor right to possession, of the lands. He had a chose in action to have an oral trust declared which might have been defeated if the statute of frauds had been pleaded as a defense. A trust declared in writing, other than one of the express trusts provided for by the Real Property Law, would be executed automatically by force of the statute so as to vest the legal estate in the beneficial owners. Real Property Law, §§ 92, 93. An oral trust would have been unenforceable from its creation (Melenky v. Melen, 233 N. Y. 19, 22, 134 Ν. E. 822), if defendant had not waived the objection to oral proof of the declaration of trust. Plaintiff by such waiver was given the opportunity to establish the trust which the statute declared to be unenforceable. To say, however, that waiver of the statutory defense would result in seizin from the be ginning is to state an obvious fallacy. Where the trust is not declared in the deed or in subsequent writings, ownership arises, not out of the deed alone, but out of the waiver, the evidence in the case, and the de cision thereon, Ownership being acquired, partition with all its retrospective incidents would follow, but plaintiff has not seizin until his right is judicially established. The deed and the decision may result in seizin ab initio, but, without the judgment of the court in his favor, plaintiff is not a tenant in common of the property. He must establish ownership in equity before he is entitled to a jury trial in partition as a matter of right.

[12] If the statute of frauds had been pleaded, the question would still remain whether there had been such an abuse of a confidential relation as to lead without a writing to the implication of a trust. Sinclair v. Purdy, supra. Equity gives relief on the ground of the perpetration of fraud independently of the statute of frauds. If such relief is granted, the legal estate remains in the grantee, but equity holds her to the performance of her verbal agreement. A constructive trust is declared to hold and sell which fastens itself on the property. In cases of established fraud, where the con

veyance is not set aside, and the trust is not executed automatically by the provisions of the statute, equity will suffer the title to rest in the fraudulent grantee as trustee ex maleficio to execute the trust in accordance with its terms. Wood v. Rabe, 96 N. Y. 414, 422 (48) Am. Rep. 640).

[13] In an action for equitable relief, a jury trial is not a matter of right. If issues are framed, the verdict is advisory. The facts must be passed upon and a decision made by the court under Civil Practice Act, § 440.

The judgments should be reversed, and a new trial granted with costs to abide the event.

CARDOZO, C. J., and CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ.,

concur.

Judgments reversed, etc.

1

ceptions to their answer. The order as to that was held to be interlocutory only, and not subject to review. It was also decided that the demurrer to the cross-bill was properly sustained. The cause afterward proceeded to decree upon the original bill and evidence.

In the first division of the brief of appellants counsel says, "An interpretation and construction of the following provisions of the Statute of Descent (Smith-Hurd Rev. St. 1927, с 39) is desired," setting out substantially the whole of the third and fourth paragraphs of section 1 of the statute. When the case was decided by the master in chancery, this court in Steinhagen v. Trull, 320 III. 382, 151 N. E. 250, had construed the section of the act now considered. Counsel for appellants seems content to quote a sentence from that opinion as to the necessity of alleging and proving a waiver of dower in one of the manners provided by the statute. In that case it was said:

"The right of dower is not changed by the amendment in question, though the manner of its assertion and the method in which it may be waived are affected by the amendment. The spouse entitled to dower is required, within one year of the death of one intestate, to elect between the right to take dower in the real estate and the right to receive one-third of the real estate of which the intestate died seized in fee. This election may be indicated expressly by filing a written waiver of dower or impliedly by failing to file an election to take dower in such real estate. The regulation of the descent of property and of the right to devise property as well as the method of conveying and the manner of creating estates and the character and quality of estates created, is purely statutory and entirely within the control of the Legislature. Ramsay v. Van Meter, 300 III. 193 [133 N. E. 193]; Prall v. Burckhartt, 299 III. 19 [132 N. E. 280, 18 A. L. R. 992]; Sturgis v. Ewing, 18 Ill. 176."

[1] It is contended that, notwithstanding the statute provides that waiver of dower may be effected under clause (a) of the fourth paragraph of section 1 of the Statute of Descent by filing and recording a writing executed in the manner there provided expressing the intention to waive dower, and by failing, under clause (b), to file or record within one year an election to take dower, the construction by the circuit court that the failure to file the election waived dower is "absurd, inconsistent and a contradiction." It is not made clear how such serious consequences flow from the construction and application of the paragraph by the circuit court. When the case of Steinhagen v. Trull, supra, was considered and decided, the amendment of 1923 (Laws 1923, p. 325) of the statute was under attack as being unconstitutional legislation. That challenge demanded care in its consideration, not only in its relation to the Constitution but in its structure as a piece of new legislation in this

state. The amendment conferred upon the widow the right to receive as "her absolute estate, in lieu of dower therein, one-third of each parcel of real estate of which the intestate died seized and in which such widow or surviving husband shall waive his or her right of dower." The waiver of the right of dower is therefore a condition precedent to the right of the widow to claim one-third of the real estate in fee, and in order to establish her right a waiver of dower in one of the manners provided by the statute must be alleged and proved. Steinhagen v. Trull, supra.

[2] There is no incongruity in the section because it provides for waiver of dower either by filing a written waiver within a year after the death of the spouse or by failure to file it within that time. In the first event the party makes the election; in the second the law imputes it. Everyone interested in the estate is put upon notice by the record as to the interest the widow takes, whether by election or by silence. By filing the election sooner an estate may be more speedily settled. Under some circumstances prudence may suggest action rather than inaction. The statute permits the widow to elect, within one year, whether she will accept the provisions made in the will for her benefit or renounce them. She may make the renunciation at once upon the probate of the will, or she may wait until the last day of the year allowed for the purpose. The reason for permitting delay in making the election is to allow deliberation that she may determine which course is better to be pursued for her benefit. Canavan v. McNulty, 328 111. 388, 159 Ν. Ε. 782; Stone v. Vandermark, 146 Ill. 312, 34 N. E. 150. If it were necessary to speculate as to the reason for requiring action, or the propriety of inaction permitted here as its equivalent, it might well be found in those circumstances, but it is sufficient for every purpose that "it is written."

[3] It is contended that appellee cannot maintain the decree because she averred in her bill that she had waived her right of dower, and that she proved the averment by showing that she had filed no waiver of dower. For that contention appellants cite Steinhagen v. Trull, supra. That case is authority for the necessity of the averment of waiver in the bill. But if appellants were not satisfied with the manner of the averment and had brought it to the attention of the court in an appropriate manner, no doubt appellee would have been required to state specifically whether the conclusion was suрported by action, as required by clause 1, or by failure to act, as permitted by the other clause. The fact seems to be that they considered the latter method so absurd that they did not regard it as serious. They did not demur to the bill. Besides, they averred in their pleading that appellee had filed no writ