Home FREDERICK M. SHEA vs. JOHN VENUTI & another.

346 Mass. 780

January 3, 1964

Decree affirmed with costs. Shea's bill in equity against Venuti and his wife seeks to establish a resulting trust with respect to two lots in Holbrook. A master, whose report was confirmed, found (1) that these lots were purchased (and a house on one lot improved) with funds furnished originally by Shea, or from a joint account created with proceeds of mortgages upon the first lot purchased; (2) that title to each lot was taken in Mrs. Venuti's name as straw for Shea; and (3) that, until Shea learned of later mortgages placed by Mrs. Venuti without his consent, he in effect made the payments upon the original mortgage and various new mortgages securing notes of Mrs. Venuti. She did not assume the outstanding mortgage on the first lot purchased. On the subsidiary facts, the master justifiably concluded that Shea and Mrs. Venuti intended that she should have no beneficial interest in either lot. A detailed statement of the complicated mortgage transactions will serve no useful purpose. The later three mortgages (from the proceeds of which Mrs. Venuti alone received benefit) were arranged by her without Shea's knowledge. The final decree correctly ordered that the Venutis convey both lots to Shea and that Mrs. Venuti account to Shea for the mortgage proceeds received by her in excess of the aggregate amount paid out by her on the last mortgage. A resulting trust came into existence when each lot was purchased. Checovich v. Checovich, 339 Mass. 71 , 74-75. Kennedy v. Innis, 339 Mass. 195 , 200. That Mrs. Venuti was liable on certain mortgage notes we regard as in effect merely a loan to Shea of her credit. See Collins v. Curtin, 325 Mass. 123 , 125. Cf. Goldman v. Finkel, 341 Mass. 492 , 494. No facts found (including a permit application and a mechanic's lien statement in which Mrs. Venuti was referred to as owner of the lots) are sufficient to rebut the presumption of a resulting trust. Other issues raised by the pleadings and dealt with by the master adversely to the Venutis have not been argued.

Home ISABELLA BOHMAN vs. PENTUCKET FIVE CENT SAVINGS BANK.

346 Mass. 780

January 3, 1964

Decree affirmed. Exceptions overruled. After a single justice refused to issue an order of notice upon a petition to file a bill of review of a proceeding in the Land Court, a decree was entered dismissing the petition. The petitioner appealed and filed a request for a report of "fact, law, and all upon which" the judge dismissed the petition. This request was denied and the petitioner excepted. In this confused case no error appears. The petition on its face presented no question worthy of judicial consideration.

Home NEW ENGLAND MERCHANTS NATIONAL BANK OF BOSTON & another, trustees, vs. THE FIRST CHURCH IN SWAMPSCOTT (CONGREGATIONAL).

346 Mass. 780

January 6, 1964

Appeal dismissed. This is a petition for instructions filed in the Probate Court by the trustees under the will and codicil (the will) of Wilhelmina W. Jackson, late of Swampscott. The respondent, The First Church in Swampscott (Congregational), appeals from a decree ruling inter alia that the doctrine of cy pres was not applicable, that the respondent is not entitled to the legacy referred to in the petition, and that the trustees shall obtain said legacy and continue to administer it under the provisions set forth in the will. The parties filed a "Statement of Agreed Facts." It is stipulated therein that the will was allowed by

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a decree of the Probate Court dated May 25, 1926, that under its provisions a Protestant church corporation is to be organized in a particular neighborhood within one year of the death of the testatrix's sister, that the sister is still living, that there is a bequest to said church corporation in the amount of $75,000, and that the will contains a residuary clause under which this bequest will be disposed of if the gift to the church corporation is frustrated. In no way was the respondent named as a recipient of the legacy in question. The trustees have filed a "Motion to Dismiss Appeal" on the grounds that the respondent is not a "person aggrieved" under G. L. c. 215, Section 9. It is the settled rule in this Commonwealth that an institution hoping to be the beneficiary of the application of the cy pres doctrine has no legally recognized interest in the fund which it seeks; consequently, it has no right of appeal. Bolster v. Attorney Gen. 306 Mass. 387 , 390. First Christian Church v. Brownell, 332 Mass. 143 , 147. Worcester Memorial Hosp. v. Attorney Gen. 337 Mass. 769 , 770.