FRANCIS P. BREWER vs. IRENE M. BREWER, CRISTINE DENCH

This is a complaint brought by Francis P. Brewer of Gray, Maine, formerly of Rockport in the County of Essex, against his wife Irene M. Brewer and her daughter by a prior marriage, Cristine Dench, both of said Rockport [Note 1], seeking to establish a trust for the benefit of the plaintiff in certain parcels of real estate situated on South Street and 5 Prospect Street Extension in said Rockport and praying for an accounting of all rents and profits. The complaint alleged that the plaintiff and his wife purchased a home at 7 Pleasant Street, also in Rockport, as tenants by the entirety, on the date of their marriage, February 23, 1961; that they jointly gave a purchase money mortgage to the Rockport National Bank for $10,000; that the plaintiff paid the mortgage, taxes and all other expenses of the domicile while he and his wife co-habited; that on and prior to March 23, 1966 the defendant requested that the marital home placed in her name to safeguard the parties' interests from claims of the plaintiff's first wife and promised that upon request she would reconvey the premises to herself and the plaintiff, as tenants by the entirety; that the property had been so transferred, not as a gift, settlement or advance but as a matter of convenience to the parties; that the defendant's representations were knowingly false, were made with the intent that the plaintiff should rely thereon and with an intent to deceive and defraud the plaintiff and to induce the conveyance; that the parties co-habited until August 16, 1970; that the defendant had brought a petition for separate support against the plaintiff in the Essex Probate Court which had entered a temporary decree ordering the plaintiff to pay $100 per week for the support and maintenance of his wife and two minor children; that the plaintiff had at all times complied with the court order; that the defendant had sold the property on Pleasant Street and purchased a home on South Street with the proceeds and subsequently conveyed the premises to herself and her co-defendant as joint tenants; that the defendant thereafter purchased further real estate on Prospect Street Extension with title taken with her daughter Cristine as joint tenants; that the South Street and Prospect Street Extension purchases were made from the proceeds of the sale of the Pleasant Street premises, one-half of which the defendant held in trust for the plaintiff.

The defendants answered alleging that the premises at 7 Pleasant Street were purchased by Mrs. Brewer from monies received from the sale of real estate owned by her as a surviving joint tenant with her first husband; that title was taken thereto for a short period of time and for the sake of convenience with the plaintiff, as tenants by the entirety, but that approximately $9,200 of the purchase price was paid by her with the balance represented by a mortgage loan from the Rockport National Bank; that she paid the mortgage, taxes and other expenses for the domicile from social security and veterans administration benefits for her minor children payable by virtue of the death of her first husband, and savings accounts; that the plaintiff had not complied with the order of the Probate Court; that the plaintiff was aware of the sale of the Pleasant Street premises but that in any event no formal notification was necessary; that her daughter and co-defendant had paid consideration for the real estate conveyances through here contributions to the family income; and that the present proceeding was brought by the plaintiff as a result of the defendant's contest of the Maine divorce proceedings he had instituted.

A trial was had at the Land Court on September 18 and October 24, 1975, at which a stenographer was appointed to record testimony. All exhibits introduced into evidence are incorporated herein by reference for the purpose of any appeal. A suggestion of death of Irene M. Brewer on December 2, 1975, has been filed with the Court.

I find the following:

The plaintiff and defendant were married on February 23, 1961. Immediately after the ceremony the purchase of the premises at 7 Pleasant Street was concluded. Title to the premises was taken by the plaintiff and defendant, as tenants by the entirety, upon the advice of the bank. The deposit paid at the time of signing the purchase and sale agreement was made by the defendant who obtained a loan in this amount. The purchase was financed by a $10,000 mortgage loan from the Rockport National Bank and the payment by the defendant of $9,213.75 (Defendants' Exhibit No. 1), the net proceeds of the sale of the house at 34 High Street in Rockport where the defendant, her first husband, her daughter Cristine and her son Victor had resided. The plaintiff also owned a home at Smith Road where he was living with his son at the time of his marriage. Approximately eighteen months after the wedding this house finally was sold with the proceeds used for the purchase of shares of stock in American Telephone & Telegraph Company and Martin Marietta Corporation (the plaintiff's employer) and of furniture for the home and the payment of the cost of repairs of the property. Before they were married, the plaintiff and his future wife decided that it would be politic to buy a new home rather than live in either of their respective homes, and this eventually was done. The defendant managed all of the family finances, and the plaintiff turned over his salary check to her to be used to pay the alimony and support payments due to his first wife and to run the new household. The defendant continued to work for the Rockport Selectmen from the date of her marriage until the fall of 1961 and did not thereafter work while the plaintiff lived with her other than for a temporary job of brief duration. Two daughters were born of the marriage; the defendant's son and daughter also lived with the couple.

Each of the plaintiff's salary checks was delivered to the defendant to be disbursed by her. She deposited the required alimony and support payments in a special account and the rest in a joint checking account in the names of the plaintiff and defendant. The net weekly take home pay of the plaintiff initially was $90 which increased as the years passed. There was conflicting testimony as to the disposition of the plaintiff's remuneration received as a Rockport selectman and veterans affairs officer, but the amounts were such as to make this immaterial. The defendant received monthly social security checks which also increased over the years for the support of her two children, and payments from the Veterans Administration which were sometimes deposited in savings accounts in the name of Cristine and Victor and were sometimes used for the family support. The children also worked at jobs commensurate with their age and contributed some of their earnings toward the household expenses.

After the marriage the defendant learned of various debts which the plaintiff had outstanding, and the defendant paid these from the proceeds of a United States Treasury Note in the amount of $1,023.35 and her Essex County Retirement Fund in the amount of $619.73 (see Defendants' Exhibit No. 4).

Early in 1966 the plaintiff and defendant consulted their attorney relative to the problems posed by his former wife's petition to have the support payments increased. The plaintiff wished to safeguard the Pleasant Street premises as a home for the defendant and the children, particularly in view of the substantial investment made by the defendant and was concerned that the property might be attached. As a result of this conference a deed of the plaintiff's interest in the premises was drafted and executed by him (Exhibit No. 3). The deed was dated and acknowledged on March 23, 1966 and recorded the following day with the Essex South District Registry of Deeds in Book 5348, page 277. The plaintiff intimated that a second deed was executed at this time, presumably a deed from the defendant to herself and the plaintiff, as tenants by the entirety. This was denied by the defendant and the covering letter from the parties' attorney transmitting copies of their wills and suggesting that an appointment be set for their execution and "the deed which is also ready" (Defendants' Exhibit No. 10) supports defendant's contention of a single deed. I find that there was no deed ever executed from the defendant to the plaintiff and herself nor did the defendant ever make any agreement to reconvey the premises after the plaintiff's problems with his first wife had been resolved.

The parties separated in August, 1970.

Shortly thereafter, the defendant sold the Pleasant Street premises to Lincoln Lauterstein et ux by deed dated November 19, 1970 and recorded with said Deeds, Book 5727, page 593 (Exhibit No. 4). The plaintiff was aware of the sale and at that time requested only certain items of personal property which were in the house. The plaintiff's sister volunteered to help the defendant with the moving.

Simultaneously with the sale of the Pleasant Street premises, the defendant purchased another home on South Street which eventually was sold after she had purchased the property at 5 Prospect Street Extension, where she and the two children of the marriage were living at the time of the trial. Title to the latter home was taken with her co-defendant and both defendants executed a mortgage with Granite Savings Bank dated December 4, 1973 and recorded with said Deeds, Book 6033, page 76. (Exhibit No. 8). This mortgage was a blanket mortgage covering both the South Street property and the parcels known as "5 Prospect Street Extension". The South Street location subsequently was sold.

The parties have argued the case on the theory of a resulting trust. The plaintiff contends that the transfer of title from the plaintiff and his wife as tenants by the entirety to the defendant alone was not intended as a gift, advancement or settlement for her benefit, but that she was to hold title on a resulting trust for their joint benefit. Doucette v. Doucette, 361 Mass. 156 (1972); Burwen v. Burwen, 2 Mass. App. Ct. 29 , Mass. App. Ct. Adv. Sh. (1974) 215; D'Amico v. D'Amico, 1 Mass. App. Ct. 561 (Adv. Sh. (1973) 669).

The defendant recognizes the usual rule that a resulting trust arises where property is transferred under circumstances which raise an inference that the person who makes the transfer or causes it to be made did not intend that the transferee take beneficial interest in the property but argues that when title is taken in the name of the wife there is a presumption that a gift is intended. The rule and its exception are set forth in McPherson v. McPherson, 337 Mass. 611 , 613-614 (1958), wherein the Supreme Judicial Court said:

"Of course, it is settled law that where a person pays the purchase price of property and takes title in the name of another, without more, the beneficial interest in the property enures to the person who paid, or becomes liable to pay, the purchase price, by way of resulting trust. (Citations omitted) ... The resulting trust rule stated above is subject to the qualification that where the transferee is the wife of the person by whom the purchase price is paid there is a presumption that a gift was intended. Frank v. Frank, 335 Mass. 130 , 134-135, and cases cited. But this presumption is rebuttable and the husband can establish a resulting trust by proving that it was not intended at the time of the transfer that the wife should take a beneficial interest in the property by way of gift, settlement, or advancement. (Citations omitted)

The present case, however, does not seem to fall within the scope of the cases where a resulting trust is determinative, for the Supreme Judicial Court has recently said in Smigliani v. Smigliani, 358 Mass. 84 , 90 (1970): "It is well established that a 'resulting trust must arise at the time of the purchase' and cannot be created afterward'. Quinn v. Quinn, 260 Mass. 494 , 503, and cases cited. Kennedy v. Innis, 339 Mass. 195 , 200. Scott, Trusts (3d ed.) §440."

No contention has been made on behalf of the defendant that the plaintiff held his interest when the property was acquired in 1961 on a resulting trust for her. At that time she paid the major portion of the purchase price, but title was taken jointly. Following the rule in the case last cited, no resulting trust could arise at the time of the conveyance by the plaintiff to her since the purchase of the property had long since been concluded. The only grounds on which the plaintiff would be able to prevail would be by establishing an express or constructive trust or a conveyance procured by fraud or undue influence.

The defendants did not plead the statute of frauds, which continues to be an affirmative defense under Rule 8(c) of the Massachusetts Rules of Civil Procedure. If pleaded, G.L. c. 203, Sec. 1 would bar any reliance by the plaintiff on an express trust and G.L. c. 259. Sec. 1 would have been a similar bar to reliance on an oral agreement by the defendant to reconvey the premises. However, on all the evidence, I find neither an express trust, a constructive trust, nor an oral agreement to reconvey the premises by the defendant to her husband. Neither was there any evidence that the defendant procured the conveyance to her by fraud or undue influence. Rather, I find on all the evidence that the conveyance by the plaintiff to the defendant correctly reflected their agreement that the premises were to be the property of the defendant in view of the substantial contribution which she had made to the purchase and the necessity of providing a home for her children and those born of the marriage between the plaintiff and the defendant and that the presumption of a gift has not been overcome.

The facts in the present case are almost precisely those in Laezza v. Laezza, 360 Mass. 716 (1972) where the only difference is that the husband and wife in the reported case took title to the property before their marriage as joint tenants and that some months after the wedding the husband transferred his interest to the wife. In the Laezza case it was found that there was neither fraud nor undue influence, that the act of the husband in signing the deed was entirely voluntary, that no trust had been created and the presumption of a gift had not been overcome. All of this applies equally to the Brewers.

Judgment accordingly.