Judges： Horn
Filed Date： 2/22/1977
Status： Precedential
Modified Date： 11/11/2024
Defendant appeals from a judgment impressing a constructive trust upon certain real estate he had inherited as the sole heir of his wife, who died intestate in 1973. This lawsuit, seeking such relief, had been instituted by decedent’s brothers and sisters, who alleged that she had intended the property to go to them upon her death, but that the absence of a will accomplishing that purpose was because of defendant’s undue influence and her mistake. We reverse.
Until her marriage to defendant in 1960 decedent, who was then approximately 45 years of age and the eldest of six children, lived with her parents in the family residence in Newark. Four years later, following the death of her father, she and her husband moved into the family home in order to live with and look after her mother. In 1969 the mother, terminally ill and hospitalized, executed a will, apparently at Matilda’s request, leaving to her the residuary estate, con
According to the testimony of Edythe Massa, one of decedent’s sisters, the property had become the subject of discussion among the brothers and sisters after their mother’s death. Some of them were upset because of the mother’s will, but she professed to have complete faith that Matilda would return the property to them. The others wanted Matilda to draw up a will to insure that result. Mrs. Massa recalled a conversation between one of her brothers and decedent a few months before the latter’s death in which, in response to his inquiry as to when she was going to make a will, Matilda said she did not need one.
Another sister, Anne Fuceello, testified that after the execiztion of her mother’s will, she, her sister Genevieve Golden, and the latter’s husband confronted Matilda and announced their intention to contest the will. Mrs. Fuceello said that Matilda told them, “Why get so excited? * * * The house belongs to you kids.” She said further that defendant commented, “I don’t want the house, what am I going to do with it?” This version of what occurred was sizbstantially corroborated by Mrs. Golden, who added that on several occasions thereafter, when she suggested that Matilda should make a will, her sister told her not to worry, “[t]he house is yours.”
Further testimony was given by decedent’s aunt and her brother Eomeo that Matilda has stated she did not need a will because the house was going back to her brothers and sisters. Laddie Ciafarone, the other brother, related that he talked with defendant about the disposition of the property after his sister’s death and that he was offered $5,000 for the interest in the house of the brothers and sisters, an offer they refused to accept.
Defendant testified that he never had any discussion with his wife about a will, and he did not know when she died whether she had a will. He denied discussing the subject of
The trial judge stated in his letter opinion that he was
* *■ * fully satisfied of the intestate’s intent and expectation that the property would be taken by the plaintiffs upon her death. This conclusion is drawn both from oral statements made by the decedent and in the intent which she expressed in the will she had drawn for her mother’s signature that plaintiffs and not her husband were to receive the property in the event she predeceased Mrs. Ciafarone. Her expectation was fostered and reinforced by the defendant’s disavowal of any intent to retain the property after her death. Had he given her reason to believe that he would not relinquish his interest in the house to the plaintiffs upon her death she would have made appropriate testamentary arrangements to accomplish her clearly stated purpose. She was an honorable person and the court rejects any suggestion that the assurances were given for reasons of deception.
Giving full credence to plaintiff’s testimony, we are, nevertheless, not convinced that the imposition of a constructive trust in this case was warranted. Such trust, of course, may be impressed in any case where to fail to do so will result in an unjust enrichment. Clark v. Judge, 84 N. J. Super. 35, 61 (Ch. Div. 1964), aff’d o.b. 44 N. J. 550 (1965). In D’Ippolito v. Castoro, 51 N. J. 584 (1969), the court said:
Generally all that is required to impose a constructive trust is a finding that there was some wrongful act, usually, though not limited to, fraud, mistake, undue influence, or breach of a confidential relationship, which has resulted in a transfer of property. Cf. Neiman v. Hurff, 11 N. J. 55 (1952). Scott on Trusts, supra, § 462.2, p. 3417, goes so far as to suggest that “A constructive trust may arise, however, even though the acquisition of the property was not wrongful. It arises where the retention of the property would result in the unjust enrichment of the person retaining it.” We need not decide, however, whether a constructive trust may arise absent any wrongdoing on the part of the alleged constructive trustee, for Castoro *' * * committed a wrongful act. [at 589]
A constructive trust must be established “by clear, definite, unequivocal and satisfactory evidence.” Gray v. Bradley, 1 N. J. 102, 104 (1948). See also, Aumack v. Jack
The trial judge’s concept here was that decedent’s husband had somehow led her to believe that he had no desire to retain the property and would carry out her expressed wish after her death, and that had he not done so she would have made appropriate provision in a will. This was, according to the trial judge, a case where the retention of the property by defendant would result in his unjust enrichment. In reaching these conclusions the trial judge relied heavily on Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876 (Ct. App. 1897), which enunciated the principle that where a testator is induced either to make a will or not to change one after it is made, by a promise, express or implied, on the part oí a legatee that he will devote his legacy to a certain lawful purpose, “a secret trust is created, and equity will compel him to apply property thus obtained in accordance with his promise.” 45 N. E. at 887. Furthermore, said the court in the cited case, “[t]he same rule applies to heirs and next of kin who induce their ancestor or relative not to make a will by promising, in case his property falls to them through intestacy, to dispose of it, or a part of it, in the manner indicated by him.” We are of the view that the case has no application to the facts here involved.
It may be that decedent intended her brothers and sisters to have the family home upon her death. But we find nothing in the record from which it can reasonably be inferred that decedent was induced not to make a will because of what her husband had .said or that she was misled by him in any way. The most that can be derived from the record is an indication by defendant that it did not matter to him if his wife wished to leave the property to her brothers or sisters. He did not disavow “any intent to retain the property after [his wife’s] death,” notwithstanding that remark by the trial judge in his letter opinion. There was no commit
Our dissenting colleague, after chiding us for “substituting [our] judgment and findings for that of the trial judge without a proper foundation for doing so and by exceeding the scope of [our] review,” which we did not do, attempts to buttress the trial judge’s conclusions by suggesting findings which, he says, could have been made below “as his conclusions indicate.” In our view, such findings are as unsupported by the record as was the trial judge’s interpretation of defendant’s statements as testified to by plaintiffs. It would be sheer speculation to hold on the proofs before us that decedent influenced her mother to leave the house to her or that .the mother believed that ultimately, upon the daughter’s death, plaintiffs would receive the property. Moreover, we perceive neither a misrepresentation nor an inducement in anything that defendant is supposed to have said, accepting at face value the testimony of the plaintiffs. In short, it is our task to review the case made below, not one that might have been made.
Reversed.'