majority">Smith, J.,

delivered the opinion of the court.

John Triplett died in December, 1906. Several years prior to his death he determined to leave his property at his death to the children of his deceased brother, William Triplett. As ■one of these children, a daughter, was of unsound mind, he ■decided to give her portion of the estate to her two children, Leah and Hugh Benbrook, complainants in the court below ■and appellants here. Instead of making his will in accordance with this determination on his part, contrary to the advice of the attorney who wrote the will, he bequeathed all of his property to his niece, Mariah Yancy, appellee, and one of the children of the said William Triplett, stating that she understood what he wanted done in the matter and would carry out his wishes. It is clear from the evidence that Mrs. Yancy understood what her uncle’s intentions were, that she agreed to divide the property after his death in accordance therewith, and that, had John Triplett not so understood the matter, the will in •question would not have been made. The bill filed in the court below, among other things, prayed that appellee be held to be a trustee, holding the legal title to said property for the benefit of the children of William Triplett and for appellants, and for *543.a sale thereof for a division. From a decree dismissing said 'bill this appeal is taken.

It is argued on behalf of appellee that she was not active in preventing the testator from making provision in his will for ■others, that there was no intention at all on her part, that at most she is only guilty of the breach of an oral promise to hold the property in trust, and that from a breach of such promise no enforceable trust will arise, citing in support thereof Ragsdale v. Ragsdale, 68 Miss. 92, 8 South. 315, 11 L. R. A. 316, 24 Am. St. Rep. 256. But the evidence shows much more than, the mere breach of an oral promise on the part of appellee. As hereinbefore set out, the conduct of appellee was. “influential in .producing the result;” that is the making of the will, “but for which such result would not have occurred.” It is true that in Ragsdale v. Ragsdale, supra,appellant, was active in preventing a testator from making an intended provision for another, promising to make such provision himself. But the court there held that “intercepting a bounty intended for another, and diverting it to one’s self, is held to be a fraud, from which a trust arises by operation of law, and not within the statute of frauds or wills, but expressly excepted.”

In order to come within this rule, it' is not necessary for a party to actively intervene. In the language of the court in Gilpatrick v. Glidden, 81 Me. 151, 16 Atl. 466, 2 L. R. A. at page 664, 10 Am. St. Rep. 245: “If either before or after the making of the will the testator makes known to the devisee his desire that the property shall be disposed of 'in a certain legal manner other than that mentioned in the will, and that he relies upon the devisee to carry it into effect, and the latter, by any words or act calculated to, and which he knows do in fact, cause the testator to believe that the devisee fully assents thereto, and in consequence thereof the devise is made, but after the decease of the testator the devisee refuses to perform his agreement, equity will decree a trust, and convert the devisee *544a fraud or not; the final refusal baying tbe effect of consum mating the fraud.”

into a trustee, whether, when he gave his assent, he intended'

The act of appellee comes clearly within this rule, and a trust therefore arises by operation of law. The only doubt as to whom the testator intended as objects of his bounty is-whether all of the children of William Triplett, appellants representing their mother, should share therein, or whether all except Charles Triplett should share therein. This question can be solved on the evidence as it now stands; but as other-evidence may be introduced on another. trial, we express no opinion relative thereto.

The objection made to the admission of certain evidence introduced .on behalf of appellants in the court below is not before the court on this record, and we have therefore given same no consideration.

The chancellor was correct with reference to the other matters complained of; but he erred in dismissing the bill, and not granting the relief prayed for as hereinbefore set forth.

Reversed and remanded.

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