3 Mass. App. Ct. 751

May 16, 1975

The identical demurrers of Weinberg, Feinstein, Adler and Marcus to the "counterclaim" against them which the defendant Glassman sought to include in his answer to the plaintiff's original bill were properly sustained on the eighth (if on no other) ground of each demurrer, which was that "the Counterclaim and Bill for Declaratory Judgment . . . contained in said Glassman's answer are improperly included therein." 1. None of the named demurrants was a party to the original bill, as was required by the first sentence and by (a) of the second sentence of Rule 32 of the Superior Court (1954). Contrast Scullin v. Cities Serv. Oil Co. 304 Mass. 75, 84-85 (1939); Davis & O'Connor Co. v. Shell Oil Co. Inc. 311 Mass. 401, 405 (1942); Stubbert v. Sergio, 335 Mass. 91, 92-93 (1956); Mackey v. Rootes Motors Inc. 348 Mass. 464, 466 (1965). 2. The "counterclaim" was obviously not "against the plaintiff alone," as was required for a counterclaim filed under (b) of the second sentence of Rule 32. 3. Nor could Glassman derive any assistance from the fourth paragraph of that rule; for all that appears, it would have been possible for him to secure "complete relief" on his mixed bag of allegations against the plaintiff without the presence of any of the named demurrants. Contrast Colella v. Essex County Acceptance Corp. 288 Mass. 221, 224, 230 (1934); Labelle v. Lafleche, 289 Mass. 140, 143 (1935). The interlocutory decree sustaining the demurrers of Weinberg, Feinstein, Adler and Marcus and the final decree are affirmed.

So ordered.

Home ALFRED F. MORRIS vs. MARY C. MORRIS (and a companion case).

3 Mass. App. Ct. 751

May 19, 1975

There was no error in the interlocutory decree confirming the master's report and the final decree. The plaintiffs have failed to establish (as was their burden, see American Employers' Ins. Co. v. Webster, 322 Mass. 161, 165 [1947]) that Mary C. Morris (defendant) holds the real estate, or the proceeds of the sale of a part of the real estate, in trust for the children of Mary M. Morris (mother). Although the Statute of Frauds would not bar the establishment of an oral express trust directed to the proceeds of the sale of the real estate (Chance v. Gardner, 228 Mass. 533 [1917]), the master's general finding (assuming, without deciding, that it is supported by the subsidiary findings) that the mother expressed to the defendant "her wish that the property would be used" in the manner contended for by the plaintiffs does not "unequivocally show an intention that the legal estate be

Page 752

vested in one person to be held in some manner or for some purpose on behalf of another." Cooney v. Montana, 347 Mass. 29, 35 (1964). See Poor v. Bradbury, 196 Mass. 207, 209-210 (1907), and cases cited; contrast Trustees of First Methodist Church of Holyoke v. Attorney Gen. 359 Mass. 658, 659-660 (1971), and cases cited. Nor is a constructive trust shown. There is no suggestion of fraud or misuse of confidential information. See Barry v. Covich, 332 Mass. 338, 342 (1955). The fact that the mother and the defendant were members of the same family did not, without more, create a fiduciary relationship. Ranicar v. Goodwin, 326 Mass. 710, 713-714 (1951), and cases cited. Kelly v. Kelly, 358 Mass. 154, 156 (1970). The master's subsidiary finding that the mother "relied upon . . . [the defendant] for assistance in the management of her financial affairs," and his general finding that the mother "was accustomed to being guided by the business judgment of the . . . [defendant] and had confidence that the . . . [defendant's] judgment would be exercised in . . . [the mother's] best interest and in accordance with her wishes," appear in the context of the other subsidiary findings to mean little more than that the defendant provided substantially all the mother's financial support (except for the monthly social security check of $26) after 1954 and paid all the bills, including the taxes on and repairs and maintenance of the real estate, after 1960. The "additional factors" which were found to give rise to a fiduciary relationship (see Kelly v. Kelly, supra, 156-157) in Hawkes v. Lackey, 207 Mass. 424, 431-433 (1911); Schmidt v. Schmidt, 216 Mass. 572, 576-577 (1914); Stetson v. French, 321 Mass. 195, 199 (1947); and Samia v. Central Oil Co. of Worcester, 339 Mass. 101, 112 (1959), are not present in this case. The only exceptions to the master's report which have been argued have no relevance in view of our conclusion that no trust has been shown.

Interlocutory decree affirmed.

Final decree affirmed.