Astreen v. Flanagan , 3 Edw. Ch. 279 ( 1839 )

The Vice-Chancellor :

The purchase of the lot in ques tion having been made by or under the direction of the complainant, and he having paid the purchase-money, he is entitled prima facie to the property, on the ground of a resulting trust, although the title was taken with his assent in the name of the defendant, Sarah Isabella. But this presumption may be repelled by circumstances as well as by direct proof, showing that a trust was not intended, but, on the contrary, a gift or advancement to the grantee : Jackson ex dem. Feller v. Feller, 2 Wend. 465.

The rule is, that a purchase in the name of another, who stands in no such relation, as child or wife, creates a trust in favor of the person advancing the money, and the burden of proof is upon the grantee to rebut the trust: Rider v. Kidder, 10 Ves. 360

But where such relation exists, a purchase, in the name of wife or child, will be considered an advancement until the contrary appears ; and the burden of proof is upon the party asserting the trust: Finch v. Finch, 15 Ves. 43 ; see also, Jackson v. Matsdorf, 11 J. R., 102 ; Livingston v. Livingston, 2 J. C. R., 537.

There is evidence in this case, showing that the defendant, Sarah Isabella, was taken into the family of the complainant, and became his child by adoption ; and I am not sure that, under the circumstances, the relation of parent and child must not be deemed to have existed, so as to carry, along with the fact of taking the deed in her name, the presumption of its being a gift or advancement, instead of a trust to result in the complainant’s favor.

But suppose the presumption to be the other way, and in favor of a trust: I am still of opinion that the evidence sufficiently repels the alleged trust and shows that a gift to the child was intended. If a trust was intended, on account of his being an alien, why was an infant of such tender age selected for a trustee 1 His inability to hold real estate in his own name could be removed in five years, and yet the title was to be vested in a child in trust, who could not reconvey it short of about fifteen years, even if she lived to attain her majority. Why was not her father selected as the trustee, who was the intimate and confidential friend of the complainant, and who was, indeed, the agent in making the purchase 1 Her unsuitaf bleness to be a trustee, &c., furnishes a strong argument to the contrary. But, independent of this, there is positive proof of the complainant’s repeated declarations, that it was Sarah’s lot, that it had been purchased for her, and was intended for her benefit and advantage. There is also proof of an understanding in the families of the complainant and the defendant’s father to that effect, although, with respect to the declarations of the defendant’s father, even supposing they can be evidence for or against the defendants, I think the preponderance is decidedly in favor of his understanding it to be a gift to the defendant. Little or no credit is due to Joseph Higham on this subject; and the testimony of the other witnesses on the part of the complainant, showing that it was called Astreen’s lot, &c., is not inconsistent with his purchase of it as a gift to the child and his having the control and management of the lot for her benefit, as he naturally would, during her minority and while she was living in his family.

Upon the whole, there is not enough shown to warrant the court in depriving her of the title and ownership of the property and the bill must be dismissed, with costs.