ARTHUR A. TERRIO v. JOHN SYDNEY CONWAY.

The plaintiff, Arthur A. Terrio, of Waltham in the County of Middlesex, seeks to establish a resulting trust in land in the town and county of Nantucket, the record title to which is in the name of his son-in-law John Sydney Conway, the defendant and a resident of said island. The defendant claims that the purchase moneys were either a gift or a loan from the plaintiff and denies that he holds title on any trust for the benefit of the plaintiff. The answer also specifically pleaded the statute of frauds and the statute of limitations, but such defenses were waived prior to the trial.

The trial was held at the Land Court Department on April 24 and 25, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

During the years from 1960 to 1968 the plaintiff gave the defendant and the defendant's wife Patricia, a daughter of the plaintiff, more than $30,000; the plaintiff considered some of these moneys gifts, some loans, but it is unclear whether he communicated his characterization of any particular advance to the defendant; none of the moneys have been repaid; the defendant is a retired postmaster of Nantucket and a former member of the General Court; he attempted to repay the plaintiff for his generosity by locating certain parcels of land which the plaintiff might buy; three such parcels were discovered by the defendant; one of such parcels consisted of six lots of which the plaintiff gave the defendant three and sold the other three lots at a considerable profit; there is no dispute that the plaintiff furnished the funds represented by his check dated July 25, 1960, drawn on Wakefield Trust Company and payable to John S. Conway for $225 (Exhibit No.1) which were used to purchase the locus; the latter is the so-called Gibson farm containing about 37.01 acres and located on Massasoit Road in Nantucket; the defendant was a friend of Lawrence Miller, the record owner of the Gibson farm and conducted the negotiations for its purchase; title to the land was taken in the defendant's name because of his relationship with Mr. Miller; the deed to the defendant was dated September 9, 1961 and was recorded on September 20, 1961 with Nantucket Deeds in Book 121, Page 548 (Abstract in Registration Case No. 36083, Sheet 13); on February 2, 1969 a petition to register the title was filed with the Land Court, was contested and is still pending; the plaintiff sent Mrs. Conway his check no. 267, drawn on Guaranty Trust Company, dated March 11, 1968 and payable to her order in the amount of $1,500, either as a loan to the family or for payment of the statement of Schofield Brothers who prepared the filed plan in said Case No. 36083 (Exhibit No. 2); Mrs. Conway testified that she and her husband were to pay the surveyors' bill for $1,800 in lieu of repaying her father's $1,500 loan to them; the plaintiff also provided his check no. 388 dated September 17, 1969, similarly drawn and payable, and representing the legal fees and expenses of the Land Court Examiner (Exhibit No. 3); the plaintiff did not request that title be transferred to him until 1965 at which time the defendant suggested it wait until the land was surveyed and the title registered; the plaintiff, who is eighty-three years old, has four children, one son and three daughters to all of whom he appears to have been a generous father; jealousy beetween the siblings has become acute during the past ten to fifteen years, and each of the plaintiff's three daughters appears apprehensive that her sisters are receiving preferential paternal treatment; the plaintiff in the late 1960's orally suggested that he and the defendant each hold an undivided one-half interest in the locus; failure of the defendant to act led the plaintiff to demand a conveyance running to each of his children equally (or alternatively to be drafted to give Patricia a share of three-ninths as against two-ninths for her siblings) (Exhibit No. 4); this proposal evoked an emotional reply from Mrs. Conway in which she implicitly recognized (Exhibit No. 5) her father's beneficial ownership by emphasizing the oral agreement that the plaintiff and defendant had made; the plaintiff continued to pursue a conveyance of the locus and originally retained John C. Collins, Esquire, to represent him; the plaintiff's theory that the defendant was a straw for him was set forth in Mr. Collins' correspondence and legal action mentioned; these letters (Exhibits No. 5 and 6) evoked a reply from the defendant's counsel that the purchase price was a loan from the plaintiff and the land belonged to the defendant (Exhibit No. 7). The plaintiff subsequently engaged his present counsel, and more than two and one-half years after the exchange of correspondence between the attorneys, the complaint in this case was filed.

Both parties in substance agree to the foregoing facts. The dispute revolves around the intent with which the check for the purchase price was given. The plaintiff claims that he furnished the consideration and intended thereby to acquire the entire beneficial interest in the locus. The plaintiff further argues that the defendant acted as purchaser since as a friend of the owner, the defendant was in a better position to negotiate with him. The delay in conveying title to the plaintiff is said to have been a device to avoid embarrassment to the defendant. Conversely, the defendant argues that he purchased the property for himself and his family and that the purchase price was a gift from his father-in-law.

In view of the course of dealing between the plaintiff, on the one hand, and the defendant and his wife, on the other, the defendant's explanation seems plausible. Nonetheless, in view of the other circumstances present in this case and the facts I have found, the presumption on which the doctrine of a resulting trust is grounded controls. As was stated in Caron v. Wadas, 1 Mass. App. Ct. 651 (1974):

It is settled that 'where one buys and pays for real estate, but the conveyance of the title is to another, a trust results in favor of the one who pays the consideration, which may be enforced in equity against the grantee named in the deed, who is treated as subject to all the obligations of a trustee' .... The doctrine of resulting trusts rests on the presumption that 'he who supplies the purchase price intends that the property bought shall inure to his own benefit and not that of another, and that the conveyance is taken in the name of another for some incidental reason.'

Id. at 655. Accord, Krasner v. Krasner, 362 Mass. 186 , 189 (1972); Murphy v. McKenzie, 1 Mass. App. Ct. 553 , 555-56 (1973); Abalan v. Abalan, 329 Mass. 182 (1952). Cf. Meskell v. Meskell, 355 Mass. 148 (1969).

It is the plaintiff's burden to prove a) that he furnished the consideration as to which there is no dispute, all parties agreeing that this was so, and b) that he intended at the time of purchase to acquire the beneficial interest therein. Dwyer v. Dwyer, 275 Mass. 490 , 494 (1931). In the instant case the plaintiff is aided by the presumption of a resulting trust quoted in Caron v. Wadas, supra, as the presumption of a gift has no application here since the defendant is the son-in-law of the plaintiff, not one to whom the plaintiff owes a duty of support. The latter presumption provides that:

"when the person paying the consideration for real estate is under a natural or legal obligation to provide for the person who takes the title, there is a presumption of a gift and no presumption of a reSUlting trust."

Dwyer v. Dwyer, supra at 494, quoting Lufkin v. Jakeman, 188 Mass. 528 , 530 (1905); accord, Davis v. Downer, 210 Mass. 573 , 575 (1912). It is not applicable here. Even if it were to apply, however, it has been rebutted successfully by the evidence introduced.

By the defendantfs own admission, the plaintiff's money was used to purchase the property. The natural inference from the evidence is that the plaintiff invested in the property at the advice of the defendant as he had in other Nantucket parcels. It is plausible that title was taken in the defendant's name, because he and the owner were friends and the latter was more apt to convey the property to the defendant for a reasonable sum than to the plaintiff. Furthermore, although the plaintiff has established a history of giving generous sums of money and land to the defendant and his wife and has regarded most as gifts with no demand for reimbursement, he has consistently claimed the Gibson farm as his own and never considered it the defendant's, and the defendant and his wife concurred in this.

At trial there was evidence introduced that the plaintiff had twice offered to give the defendant's family a fractional interest in the Gibson farm. However, such donative intent never became a completed gift. At most it constituted an intent to make a gift. And it has been held that "'[a]n intent to give is not a gift.'" Kobrosky v. Crystal, 332 Mass. 452 , 460 (1955); accord, Iantosca v. Iantosca, 324 Mass. 316 , 321 (1949).

I therefore find and rule on all the evidence that the plaintiff paid the purchase price for the locus, that he intended to acquire the beneficial interest therein, that he did not intend to make a gift to the defendant, that title was taken in the defendant's name for the purpose of negotiation, and that the defendant holds title on a resulting trust for the benefit of the plaintiff to a parcel of land in said Nantucket conveyed to the defendant by Lawrence Miller by said deed dated September 9, 1961.

Judgment accordingly.