ANN C. COLE, a/k/a ANN MARIE COLE, et al, v. HAROLD W. COLE.

The plaintiff brought this single count action entitled "Constructive Trust", seeking equitable relief in the form of an injunction and for the imposition of a trust [Note 1] upon certain property to which the defendant holds a record interest. The plaintiff, Ann C. Cole, (the daughter) is the younger sister of the defendant, Harold W. Cole (the son). The property is a parcel of land with a two family duplex thereon, located at 14-16 Buck Street, Newburyport, Massachusetts (the locus).

The plaintiff's and defendant's father, Alden V. Cole, (the father) conveyed the locus during his lifetime [Note 2] to himself and his son as joint tenants; allegedly subject to an agreement whereby the son would convey a half interest in the locus to the daughter on the father's death, and whereby the son would reconvey his interest in the locus to his father upon request. The father twice requested hat the son reconvey his interest in the locus, and the son refused to do so. When the son refused to reconvey his interest in the locus, the father conveyed all of his right, title and interest in the locus to his daughter, reserving a life estate in himself. Presently, the son and the daughter each hold a fifty percent record interest, as tenants in common, in the locus; and the daughter is seeking to have a trust imposed on the brother's interest in the locus based upon the alleged "agreement". The son counterclaimed seeking to have the conveyance from the father to the daughter set aside based on the alleged incapacity of the father at the time of that conveyance. The son subsequently waived that counterclaim.

The executors of the father's estate moved to intervene as third party plaintiffs and were allowed to do so. [Note 3] The third party plaintiffs also seek the imposition of either a constructive or a resulting trust. After the commencement of trial, both the daughter and the third party plaintiffs moved to amend their respective complaints by each adding a count for money damages; both motions were denied. At the close of the plaintiffs' case in chief, the defendant brought a motion to dismiss, pursuant to Mass. R. Civ. P. 41 (b) (2), on which the Court reserved judgment. At the close of all of the evidence, the daughter and the third party plaintiffs both moved for a directed finding against the defendant; both motions were denied.

Three days of trial were conducted, at which a stenographer was sworn to take and transcribe the testimony. Five witnesses testified and seventeen exhibits were accepted into evidence, all of which are included for the purpose of any appeal. Based only upon the evidence introduced by the close of the plaintiffs' case in chief, I find the facts to be as follows

1/ The plaintiff, Ann C. Cole, a/k/a Ann Marie Cole (the daughter), resides in Newburyport, Massachusetts. She is the daughter of Alden V. Cole (the father) and Eleanor C. Cole (the mother), and was born on May 19, 1954.

2/ The defendant, Harold W. Cole (the son), resides in the Town of Hollis Center, Maine. He is the son of Alden V. Cole and Eleanor C. Cole, and was born on November 29, 1946.

3/ The locus is a parcel of land with a two family duplex thereon, located at 14-16 Buck Street, Newburyport, Essex County, Massachusetts.

4/ The father died on March 14, 1986 and the mother died on August 29, 1969. The father left a will dated November 30, 1984, naming the daughter as the sole beneficiary under the will.

5/ The mother was diagnosed as having cancer approximately a year before her death. When the father learned of the diagnosis, he was affected greatly by the news. He began to turn to his son for strength. The son, at that time, did not live at home. When the father began to look to his son for strength the son stayed away from the father's home (the locus) more frequently than he had prior to that time.

6/ When the mother died, the father looked to his son for assistance in the funeral arrangements. [Note 4]

7/ Prior to September 26, 1969, the father owned the locus in fee. The locus was his home. On September 26, 1969, the father conveyed the locus to Elizabeth F. Dockery, who then, on the same day, conveyed the locus to the father and the son as joint tenants. Both deeds were duly recorded in the Essex South District Registry of Deeds.

8/ The father caused the above described conveyance to himself and his son (the conveyance) to occur because he wished to avoid the possibility of an extended probate on his death. The father did not include his daughter in the conveyance because she was a minor at that time and he had some belief that this created a legal impediment to including her in the conveyance.

9/ The father's intent in making the conveyance was to attempt to assure that the son and daughter each got a one half interest in the locus on his death.

10/ The father exercised his sole independent judgment in making the conveyance.

11/ The plaintiffs did not allege that the father in any way lacked the capacity to make the conveyance. The father was grieving for the loss of his wife at the time of the conveyance.

12/ The father continued to live at the locus and paid all of the property taxes on the locus as well as all other expenses associated with the locus.

13/ The son paid no consideration at the time of the conveyance for his interest in the locus.

14/ In late August or early September of 1970, approximately one year after the conveyance, the father became interested in some property in Maine (the Maine property). In order to acquire the necessary funds to purchase the Maine property, the father needed to mortgage the locus. To get the mortgage, the father needed his son's signature on the mortgage.

15/ When the father requested that his son sign the mortgage, the son initially refused to do so. This caused the father to become very angry, in fact, the father and son had to be physically separated when the son initially refused to sign the mortgage. At that time, the father felt that he could do as he wished with the locus.

16/ Soon after refusing to sign the mortgage, the son did sign the mortgage.

17/ Immediately following this incident and while the father was in an agitated state, the father made certain statements to his daughter to the effect that he could not understand why the son would not sign the mortgage, that the house was still his, that the only reason he placed the house in his own and his son's name jointly was "in case he passed away suddenly," and that he wanted to insure that his daughter got at least half of the locus.

18/ From 1978 until 1985, the father was in good physical shape, active, and mentally strong. He had an active life during that period of time and had many interests. The father was very proud of his ability to provide for his family.

19/ In July of 1985, the father was admitted to a hospital for the treatment of a kidney disorder.

20/ In late July or early August of 1985, the father asked the son to convey his interest in the locus back to him; the son refused. The father became very upset when his son refused to convey his interest in the locus back to him. Near that time, the father made certain statements to the effect that the father and son had some agreement regarding the locus, and that the son was not honoring that agreement.

21/ During 1972 and 1973 for approximately a year, the son stayed at the locus and paid rent.

22/ The father, mother, son, and daughter, were all very close prior to the mother's death. Until the time that the father first asked for the reconveyance of the locus in 1985, the father and son continued to have a normal relationship.

23/ The son married in approximately 1974. From that time until the father's death, the son and his family would visit the father approximately six to seven times a year.

24/ In approximately 1982, the father made certain statements [Note 5] to his debit insurance agent, who was also a friend, regarding an agreement he had with his son relative to the locus.

25/ On February 14, 1986, the father, through an attorney, again requested that the son reconvey the locus to the father. In the letter from the father's attorney to the son, the attorney states that the father caused the conveyance to be made ". . .as a matter of accomondation (sic) and not gift because he was unsure of his health and wanted ultimately if he died to have both his children share equally. . ." (emphasis added) The father read that letter and understood its contents. The son, through his attorney, refused to convey his interest in the locus.

26/ The son waived his counterclaim in open court.

Based only upon the evidence introduced by the close of the plaintiffs' case in chief, the events can be summarized as follows. In 1969, the father conveyed the locus to himself and his son as joint tenants. The plaintiffs failed to establish that there was any agreement between the father and the son at the time of the conveyance regarding either the locus, their respective rights in the locus, or the daughter's intended beneficial interest in the locus. Although the plaintiffs failed to establish that there was any specific agreement between the father and the son at the time of the conveyance, they did establish that the father intended, at the time of the conveyance, that both the son and the daughter should each receive a half interest in the locus on his death. [Note 6] The father made the conveyance in the form of a joint tenancy to avoid the possibility of an extended probate of his estate. The father did not include his daughter in the conveyance because he believed that her minority created some legal impediment to including her on the deed.

The father and son had a normal relationship for approximately fifteen years following the conveyance. Then, for whatever reason, the father requested that the son reconvey the locus to the father; and the son refused to do so. The father then conveyed all his right, title and interest in the locus to his daughter, reserving a life estate in himself; thereby giving both the son and the daughter a fifty percent record interest, as tenants in common, in the locus. The daughter and the executors of the fathers estate are all now seeking the imposition of a trust upon the son's interest in the locus based on an agreement allegedly made at the time of the conveyance.

In order to render a final judgment on a motion to dismiss pursuant to Mass. R. Civ. P 41 (b) (2), the Court must determine, based upon the evidence at the close of the plaintiff's case in chief, that upon the facts and the law the plaintiff has shown no right to relief. In ruling on such a motion, the judge is not limited to the standard of proof required for a directed verdict, rather, the judge is free to weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision. Ryan, Elliot & Co., Inc. v. Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686 , 689 (1979). Therefore, the issues before the Court on the defendant's motion to dismiss are as follows:

1/ Has the plaintiff met her burden of proof for the imposition of a constructive trust?;

2/ Has the plaintiff met her burden of proof for establishing a resulting trust?;

3/ Have the third party plaintiffs met their burden of proof for the imposition of a constructive trust?; and

4/ Have the third party plaintiffs met their burden of proof for establishing a resulting trust?

For the reasons stated hereinafter, I rule that the answer to all of the foregoing questions is no, and I therefore further rule that none of the plaintiffs are entitled to their requested relief based on the facts and the law.

A constructive trust is an equitable remedy utilized to avoid the unjust enrichment of one party at the expense of another, where legal title to the property in issue was obtained either by fraud, in violation of a fiduciary relationship, or where information confidentially given or acquired was used to the advantage of the recipient at the expense of the one who disclosed the information. Barry v. Covich, 332 Mass. 338 , 342 (1955). I begin by ruling that their is no unjust enrichment if the son is allowed to keep his fifty percent interest in the locus. The father intended, at the time of the conveyance, that each of his children should receive a half interest in the locus on his death; and the current record title to the locus reflects that intent. Further, the son is a natural object of his father's bounty, and therefore, there is a presumption that the father intended to make a gift to his son when he made the conveyance. Not only have the plaintiffs failed to establish that the son is unjustly enriched if he is allowed to keep his interest in the locus, as I shall discuss subsequently, they have also failed to establish any of the three basis for the imposition of a constructive trust.

There were no allegations made, and no evidence introduced, to the effect that the son acquired any confidential information from his father in connection with the acquisition of the locus, and so, I rule that a constructive trust can not be imposed upon the locus for the benefit of any of the plaintiffs based on an abuse of confidential information.

In order for fraud to be the basis for the imposition of a constructive trust, the fraud must occur at the time the property is transferred; a subsequent refusal to carry out an oral promise standing by itself, is not fraud. Meskell v. Meskell, 355 Mass. 148 , 151 (1969). The plaintiffs failed to establish that the father and son had any agreement at the time of the conveyance in 1969 regarding the locus; and there was no evidence introduced to show that the son in any way induced the father to make the conveyance. Rather, as I have found, the father exercised his independent judgment in making the conveyance.

Even if the plaintiffs had established that the father and the son had some agreement regarding the locus at the time of the conveyance, a constructive trust could only be imposed if the son secretly intended, at the time of the conveyance, not to honor any such agreement. However, no such agreement was established, and moreover, there was no evidence to indicate that the son did not intend to honor any agreement that might have existed. I therefore rule that fraud can not be the basis for the imposition of a constructive trust upon the locus for the benefit of any of the plaintiffs.

The only other basis for imposing a constructive trust would be that the son abused a fiduciary relationship either in causing the conveyance to be made or in not subsequently honoring an agreement regarding the locus. It is well settled in Massachusetts that a fiduciary relationship does not arise merely because the parties to a conveyance are members of the same family, even if the transferee promised to hold the land in trust. Kelly v. Kelly, 358 Mass. 154 , 156 (1970). Although additional factors may give rise to such a relationship, the plaintiffs failed to establish sufficient facts to support a ruling that the father and son had a fiduciary relationship. I therefore rule that a constructive trust can not be imposed upon the locus for the benefit of any of the plaintiffs on the basis that the son allegedly abused a fiduciary relationship.

The plaintiffs have argued alternatively that a resulting trust should be imposed on the locus. [Note 7] A resulting trust typically arises when a transfer of property is made to one individual while the purchase price is paid by another; and in such a case, a trust results in favor of the one who furnished the consideration for the transfer. Meskell v. Meskell, 355 Mass. 148 , 150 (1969). However, when an individual voluntarily transfers an undivided interest in property, and not money, no resulting trust arises. Id. Moreover, a resulting trust does not arise merely because a transfer was gratuitous, even when the grantee orally promises to hold the land in trust. Id.

The father conveyed his interest in the locus to himself and his son as joint tenants. He did not, at the time of the conveyance, furnish any consideration for the transfer. The facts, therefore, do not give rise to a resulting trust for the benefit of any of the plaintiffs. Because the plaintiffs, at the conclusion of their case in chief, have failed to establish any right to relief on the facts and the law, the defendant's motion to dismiss shall be, and is, allowed and judgment shall enter in favor of the defendant.