REG 34977-S

June 8, 1992

Middlesex, ss.



By complaint filed July 13, 1987, Plaintiff seeks a declaration that, through a resulting trust, she is the owner in fee simple of a certain parcel of land, known as 20 Chestnut Street, in North Reading ("Locus").

This case was tried on July 23, 1991, at which time the trial proceedings were transcribed by a court-appointed reporter. Four witnesses testified and three exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal. Both Plaintiffs and Defendants have submitted Post-Trial Memoranda and Defendants have submitted a Reply Memorandum.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Defendant, James A. McAvoy is the duly appointed administrator of the estate of Hugh Barr ("Barr"). Defendants, Mary Cote, James Shaw, Mary Zecchin, William Shaw, Raymond Shaw, Timothy Shaw, Maureen Conway, Ann McKillop, Daniel Burke and Edward Burke are heirs of Barr.

2. Plaintiff and Barr met in 1953 when they were both employees at a company engaged in the design and manufacture of dolls. Although Barr was considerably older than Plaintiff, they developed a personal relationship which lasted approximately 33 years.

3. They had many discussions concerning joint ventures in real estate wherein Barr represented and Plaintiff agreed that, as they bought property, title would be in Barr's name but that each would in effect hold as joint tenant.

4. In 1963, Barr took title to a parcel of land with a dwelling thereon, located at 67 McCormick Avenue in Medford ("the Medford Parcel"). Consideration was $11,600, for which he gave a mortgage in the amount of $11,000 and Plaintiff paid $600. Title was taken in Barr's name and, accordingly, he was sole grantor of the mortgage. Half of each mortgage payment was made by Plaintiff and Barr from their pooled funds and the other half was made by Barr's brother. Plaintiff helped renovate the dwelling on the Medford Parcel including panelling, wallpapering, tiling and painting said dwelling; both Plaintiff and Barr paid for said renovations from their pooled funds.

5. In 1966, Barr took title to a parcel of land in South Windham, Maine ("the South Windham Parcel") and subsequently moved a cottage ("the Cottage") onto the Parcel. He and Plaintiff again pooled their funds, contributing $600 towards the purchase price of the Parcel and approximately $700 for the purchase of the Cottage. Plaintiff renovated the Cottage and Barr did yard work on the Parcel. At that time, Plaintiff and Barr did not share a joint bank account, but pooled their funds to cover expenses.

6. In 1968, Plaintiff took title to six small lots in South Portland, Maine ("the South Portland Parcel"), and later to a house ("the House") which was moved onto the South Portland Parcel. Consideration for the South Portland Parcel and the House came from the pooled funds similar to those described in Finding Number 5, supra.

7. In 1970, Barr sold the South Portland Lots and on November 24, 1970, he and Plaintiff used the proceeds, $10,000, to open a joint savings account ("the Joint Account") at the Malden Co­operative Bank. Barr reported the entire gain on the sale of the South Portland Parcel on his 1970 income tax return. After opening the Joint Account, Plaintiff and Barr each declared half of the interest income thereon on their tax returns.

8. On November 2, 1972, Locus was purchased for $28,000. Title, as usual, was taken in Barr's name. At the time of that purchase, both Plaintiff and Barr intended that the arrangement discussed in Finding Number 3 be maintained. The purchase price for Locus was paid through proceeds of a $22,400 mortgage and $6,000 from the Joint Account. The mortgage payments of approximately $230 to $250 per month have come from the Joint Account. Locus is described in Certificate of Title Number 139434, recorded at the Middlesex South Registry District of the Land Court, in Book 827, Page 84.

Plaintiff and Barr subsequently raised race horses on Locus. Plaintiff cared for the horses on a daily basis, which care included feeding, cleaning the stalls, and exercising the horses. The money for purchase and maintenance of the horses came from the Joint Account; any winnings therefrom went into the Joint Account.

9. In 1974, Plaintiff and Barr purchased a farm in Methuen ("the Methuen Parcel") the consideration for which was approximately $47,000, consisting of a $10,000 downpayment from the Joint Account and proceeds of a mortgage of $37,000. While the title to the Methuen Parcel was again in Barr's name, mortgage payments were from the Joint Account. The Parcel was used to exercise their horses. The Methuen Parcel was sold in 1979 and the Medford Parcel in 1980. The proceeds of both sales went into the Joint Account.

G.L. c. 185, §75 provides, in pertinent part, "Whoever claims an interest in registered land by reason of any implied or constructive trust shall file for registration with the assistant recorder a statement thereof . . . . " The court has recognized that G.L. c. 185, §75 permits a constructive trust based on fraudulent registration to be found in a parcel of registered land. State Street Bank & Trust Co. v. Beale, 353 Mass. 103 (1967) and, accordingly, I find that, in the present case, the fact that Locus is registered is no bar to Plaintiff's claim of an implied trust.

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. Caron v. Wade, 1 Mass. App. Ct. 651 , 655 (1974); Quinn v. Quinn, 260 Mass. 494 , 501 (1927); Carroll v. Markey, 321 Mass. 87 , 88-9 (1947).

It is well settled that when one person pays the purchase price of property and title is taken in the name of another, without more, the beneficial interest in the property inures to the person who paid or became liable to pay the purchase price by way of a resulting trust. Druker v. Druker, 308 Mass. 229 , 230 (1941); Blodgett v. Hildreth, 103 Mass. 484 , 487 (1870); Howe v. Howe, 199 Mass. 598 , 604 (1908). It is also settled that where one pays but a part of the purchase price and seeks to enforce a resulting trust in his favor, it must be shown that the payment made by him was for some specific part or distinct interest in the estate. A general contribution of a sum of money toward the entire purchase is not sufficient Druker at 230-1; McGowan v. McGowan, 80 Mass. (l4 Gray), 119, 121 (1859); Pollock v. Pollock, 223 Mass. 382 , 284 (1916). The money must be contributed "for a specific share, as a tenancy in common or joint tenancy of one half, one quarter, or other particular fraction of the whole; or for a particular interest, as a life estate, or tenancy for years or remainder, in the whole . . . " McGowan at 121.

The Court in Bailey v. Hemenway, 147 Mass. 326 , 328 (1888) explained, "[w]hen . . . one makes an oral contract with another that the latter shall buy land, on joint account, and [the latter] in violation of the contract takes the deed to himself, no trust results in favor of the former as to one half of the land, unless it is shown that he furnished the money for the one half, -- in other words, that it was bought with his money."

In the present case, at least as to Locus, the consideration came from the Joint Account to which both Plaintiff and Barr had equal access and equal ownership. Moreover, Barr consistently represented to Plaintiff that any money involved in their real estate venture belonged equally to both of them. Accordingly, I find that consideration for Locus was paid equally by both Plaintiff and Barr. The present situation can be distinguished from Bailey where, although there was an agreement between the parties that each would get a specific share of the property, the plaintiffs made contributions to a joint account which varied in amount and held no relation to the share of the property claimed by resulting trust. As above noted, Plaintiff relied on Barr's oral representation that when money from the Account was used to purchase real estate, Plaintiff would get a one-half interest in the property and the survivor would have the fee in the property -- i.e. they would hold as joint tenants.

In summary, I find that the representation by Barr as agreed to and relied on by Plaintiff that each would own a one-half interest in Locus; when considered with Plaintiff's financial contributions to the purchase of Locus, sufficiently establishes a resulting trust in her favor. Accordingly, I find that Barr was a trustee for the benefit of Plaintiff of an undivided one-half interest in Locus. I further find that, as intended by Plaintiff and Barr, Plaintiff, through right of survivorship, presently holds a full interest in Locus.

Judgment accordingly.