Pollock v. Pollock , 223 Mass. 382 ( 1916 )

Pierce, J.

From the findings of fact it appears that on October 9, 1907, the plaintiff, with the assent and approval of his wife, the defendant, took title in the name of his wife to the real estate upon which, in his bill, he seeks to have impressed a resulting trust in his favor. The consideration paid for the conveyance was $3,000, which was made up of and had its source in money on deposit in the name of the wife in a savings bank, in cash directly furnished by the husband and from the avails of a note, signed only by the wife, which note was secured by a mortgage upon the real estate conveyed and which does not appear ever to have been paid. The money on deposit in the name of the wife in amount was $1,057.22. Of that sum, $525 represented $486 with accumulated interest, which the wife on her marriage in 1904 brought to the husband as her “dowry.” This “dowry” does not appear ever to have been given to the husband for his sole use but was intended by both husband and wife to be used for the family. Its deposit in the savings bank in the name of the wife was made at the suggestion of the husband and was for convenience in its use. Both “intended the property to be held for their joint use.”

To establish a resulting trust the husband must prove that he furnished himself the entire consideration or a specific and definite part thereof, for which it was intended he should receive a determinate and fixed fraction of the whole estate conveyed. Bailey v. Hemenway, 147 Mass. 326. Skehill v. Abbott, 184 Mass. 145. In addition, the evidence must be clear that it was not intended at the time of the conveyance that the wife should take a beneficial interest in the property by way of gift, settlement or advancement. Cairns v. Colburn, 104 Mass. 274. Edgerly v. Edgerly, 112 Mass. 175. Patterson v. Patterson, 197 Mass. 112.

Considering the fact that the deposit in the savings bank was intended by husband and wife to be for family use, that both intended the property when conveyed to the wife to be for their joint use and that the note signed by the wife is outstanding and unpaid, the inference cannot be drawn that the entire consideration was paid by the husband with his own money or with money lent or given to him by his wife, nor can it be found that he furnished a distinct part of the consideration of his own money or of money lent or given to him by his wife with the intention to receive of the estate a share equivalent to the ratio the sum paid bore to the whole consideration. •

The only reasonable inference is that while the husband did not intend to make a gift to the wife which would deprive him of all benefit thereof, he did intend that the wife should take and retain title for her own benefit, for his benefit and for the benefit of such family as might be given to them.

The stipulation waiving all right to the $525, filed since the decree, can have no retroactive effect in the determination of the question before us.

The facts disclose a further difficulty in the way of the plaintiff maintaining his bill. He was engaged in a business that exposed him to suits, and shortly before taking the conveyance in the name of his wife he had been sued, his property was attached and he was compelled to give a bond to discharge the attachment. “He wished to prevent these premises from being taken for his obligation — and this influenced him in having the title taken in her name.”

The word “obligation” as above used must be taken to mean that there were present existing legal rights in third persons which it was the duty of the plaintiff to discharge and which if he did not might ripen into judgments. The finding of fact that there was an intent to place the property conveyed beyond the reach of creditors must be taken to have been warranted in the absence of testimony from which it may be seen that the «conclusion was clearly wrong. The word “ creditors ” as used in this finding must be read in connection with the previous finding that the plaintiff wished to prevent these premises from being taken for his existing obligation, and we are not required to determine whether the facts warranted the inference of a specific intent to defraud future creditors and others within the meaning of St. 13 Eliz. c. 5. See Livermore v. Boutelle, 11 Gray, 217; Lyons v. Urgalones, 189 Mass. 424.

A conveyance fraudulent as to creditors is good between the parties, but “neither party can change the effect of the conveyance, as between themselves, by appealing to the purpose of either in reference to creditors.” Lufkin v. Jakeman, 188 Mass. 528, 532. 20 Cyc. 621.

Decree dismissing bill affirmed.