LEO FELDMAN vs. RUTH FELDMAN.

The plaintiff, Leo Feldman brings this complaint against the defendant, his former wife, Ruth Feldman in which he seeks a determination by this Court that an instrument concerning property at 73 Allerton Road, Newton executed by his wife is valid and binding upon the defendant. A copy of the instrument was attached to the complaint and the original was later introduced into evidence as Exhibit 3. It reads, in full, as follows:

AGREEMENT

"I, Ruth Feldman, wife of Leo Feldman, hereby agree that in consideration of the transfer by said Leo Feldman of all his right, title and interest to me of the property at 73 Allerton Road, in Newton, and in consideration of his agreement to continue to pay all the expenses of said property insofar as he is able, I hereby agree to hold said property in trust for Leo Feldman and myself, a one-half (1/2) interest to each, and in the event of a divorce or in the event the property is sold I agree that one-half (1/2) of the net proceeds shall be paid over to Leo Feldman.

Witness, my hand and seal this day of February, 1975."

Plaintiff further asks this Court to determine that the defendant is holding one-half of the title to property at 73 Allerton Road, Newton, in trust for Leo Feldman; that the defendant be obliged to execute a deed from herself to Ruth Feldman and Leo Feldman to be held by them as tenants in common; and that to the extent that the defendant has encumbered the property by a mortgage the obligation to repay the note secured by said mortgage shall be solely that of the defendant.

In her answer the defendant admits executing the document dated February, 1975 but says that it was cancelled and destroyed as a result of an oral agreement between plaintiff and defendant made on November 6, 1975. Defendant alleges that plaintiff agreed that if the defendant would accept the Middlesex Probate Court support order of $90 per week plus insurance coverage for herself and the three children, plaintiff would tear up the "agreement" set forth on page 1 hereof. Defendant further says that she accepted the support order but that this "agreement" was not torn up by plaintiff; that the "agreement" was obtained from her by fraud and misrepresentation; and that the plaintiff is estopped by his actions and conduct to obtain relief from this Court.

A trial was held at the Land Court on April 11, 17 and 23, 1979, at which a stenographer was sworn to record the testimony. Four witnesses testified and twelve exhibits, incorporated herein for the purpose of any appeal, were introduced into evidence.

Upon all of the evidence the Court finds the following facts.

1. The plaintiff and defendant were formerly married and in 1965 had acquired title as tenants by the entirety to the property at 73 Allerton Road, Newton by a deed (Exhibit 1) from Howard E. Houghton and Joanna Houghton dated July 29 and recorded in Book 10906, page 88 Middlesex South Registry of Deeds (all Book and Page references are to documents in the Middlesex South Registry of Deeds unless otherwise indicated.)

2. Prior to and during the year 1974 plaintiff experienced serious financial difficulties, both personally and in his business, Ace Baking Company. By the end of 1974 he had knowledge that the First National Bank of Boston had instituted a suit against him upon his obligation to the bank in the amount of $27,000.00. The plaintiff also had other pressing creditors, though none of them had then brought action in court against him. At this same time grave problems had surfaced in the plaintiff's marriage so that he sought the advice of counsel with regard to both his financial and marital problems.

3. Plaintiff was advised that in order to protect his home he should place the title to it in his wife's name and his attorney drafted a deed to his wife, Ruth Feldman, to do this. (Exhibit 4). At the same time the attorney also drafted the "agreement" dated February, 1975 (Exhibit 3) to protect plaintiff's interest in the real estate. Both of these instruments were sent to the plaintiff by his attorney with a cover letter dated February 12, 1975.

4. The plaintiff signed the deed to Ruth Feldman, dated February 4, sometime in the early part of February and returned it to his attorney directing him not to record it until the "agreement" was signed. The attorney only recorded the deed in Book 12781, Page 038 on April 14, 1975 after he had been informed by plaintiff that Mrs. Feldman had signed the "agreement" which had been executed sometime in February of 1975. (Exhibit 3).

5. The defendant, Ruth Feldman, filed for divorce against the plaintiff in September, 1975. On November 6, 1975 she sought a temporary order of support in the Middlesex Probate Court in Cambridge. At the hearing on this petition she was granted an order for the payment of ninety dollars per week plus Blue Cross- Blue Shield coverage or the equivalent for herself and her three children. (Exhibit 9). She was dissatisfied 101ith this order.

6. On June 9, 1976 after a hearing she was granted a decree nisi on her divorce libel which subsequently became final in December, 1976

7. The defendant gave a mortgage on the premises at 73 Allerton Road, Newton to Samuel and Esther Gerstein, her parents, to secure the payment of eight thousand dollars, on April 15, 1977, recorded in Book 13280, Page 176.

Two questions are raised herein, the first being whether or not the so called "Agreement" created a trust for plaintiff's benefit and secondly, if so, whether this had been waived by plaintiff in return for his wife's not contesting the support payments further.

With respect to the first question as to whether or not a trust was created by this "agreement" for Mr. Feldman's benefit, the Court must consider the manifestations of the parties intent in their words and conduct, and the end to be accomplished. See Carpenter v. Suffolk Franklin Savings Bank, 362 Mass. 770 , 777 (1973) appeal after remand 370 Mass. 314 (1976). In addition the circumstances surrounding the instrument must be examined. Gorey v. Guaranty 303 Mass. 569 , 575 (1939). The plain language of the "agreement" unequivocally expresses an intention to establish a trust. In addition there was testimony that Mrs. Feldman understood that as a consequence of execution of the "agreement" she and her husband would each have a one-half interest in the property and that should there be a sale of the property the proceeds would be split equally. Mrs. Feldman was generally aware of the financial problems facing the family and that the purpose of the conveyance to her was to protect the family's home from creditors of Mr. Feldman. She further understood the "agreement" signed by her prior to the recording of the deed on April 14, 1975. The consideration for this "agreement" was the deed of her husband's interest in the property to her. The Court finds the February, 1975 Agreement did in fact create a valid trust instrument.

Defendant further alleges that the trust agreement was obtained from her by fraud or misrepresentation on the part of the plaintiff. To prevail on this tack defendant has to establish that the plaintiff made a false representation to her of a material fact with knowledge of the falsity for the purpose of inducing her to act thereon upon the representation as true and that she acted upon it to her damage. See Slaney v. Westwood Auto Inc., 366 Mass. 688 , 703 (1975). Barrett Associates, Inc. v. Aronson, 346 Mass. 150 , 152 (1963) quoting from Kilroy v. Barron, 326 Mass. 464 , 465 (1950). No evidence has been produced to indicate that Mr. Feldman made any false representations to Mrs. Feldman which induced her to execute the February 1975 agreement. There is no evidence that though he knew otherwise, Mr. Feldman represented to the defendant that the title was unencumbered. Nor is there evidence that Mrs. Feldman would not have executed the agreement even if she knew that the title was encumbered.

The Court thus finds that the trust agreement was not obtained from defendant, Mrs. Feldman, by fraud or misrepresentation.

The second question to be determined is whether or not the trust was cancelled by an agreement of the parties made in the courthouse corridor in November, 1975. This was alleged to be the case by the defendant, Mrs. Feldman, in her answer. The burden of proof is on her to show this. She testified that she had a heated conversation with her husband in the corridor outside the courtroom at the time the temporary order was granted on November 6, 1975. She threatened to go back into the probate court and charge her husband with not telling the truth, specifically with reference to a financial statement filed by him. She claims that her husband agreed that if she accepted the order he would destroy the agreement so that she would have sole title to the real estate. Her husband denied this conversation took place. In addition there was evidence indicating that in spite of the supposed oral cancellation on November 6, 1975, Mrs. Feldman still believed the trust to be in effect. In a deposition taken at the office of plaintiff's counsel in June, 1978 she admitted that in the courthouse corridor she had stated to her former husband that she would "speak to her attorney or find a way to sell or do something with her half of the house." Mrs. Feldman failed to mention any oral cancellation of the trust agreement to her attorney in the divorce action, to her parents to whom she gave a mortgage or to anyone else. She made this allegation only upon being contacted by plaintiff's attorney with regard to this action. It is the opinion of the Court that she has not sustained her burden of proof to show that the trust agreement was subsequently voided by oral agreement of the parties.

It is apparent from the trust agreement, and the Court finds, that it was the intention of the plaintiff and defendant that during their marriage each should have an interest as a tenant in common of one-half of the property and that upon a sale of the property the proceeds are to be paid out equally to each. The Court rules that the trust agreement is still in effect and that the mortgage given by defendant Ruth Feldman to her parents is an encumbrance of her interest only. The Court orders defendant Ruth Feldman to execute a deed of the property to herself and to plaintiff Leo Feldman, as tenants in common.

The plaintiff filed thirty requests for rulings of law. Requests numbered 1, 2, 20, 25, 27, 29 are granted; all others are denied as being immaterial, irrelevant, not applicable, or contrary to law.

The defendant has filed ten requests for rulings of law. Request No. 10 is allowed. The others are denied for the same reasons certain of the plaintiff's requests were denied. The defendant has also filed thirteen requests for findings of fact. The Court has made its own findings, therefore only those requests for findings of fact which are consistent with the Court's findings are allowed. All others are denied.

Judgment accordingly.