Abston v. Estate of Abston

• Decision Date: 18 May 2007
• Docket Number: 2050961.
• Citation: 973 So.2d 1068
• Parties: D. Larry ABSTON v. ESTATE OF James D. ABSTON, Sr., and First United Security Bank.
• Court: Alabama Court of Civil Appeals

973 So.2d 1068

D. Larry ABSTON v. ESTATE OF James D. ABSTON, Sr., and First United Security Bank.

2050961.

Court of Civil Appeals of Alabama.

May 18, 2007.

Nathan G. Watkins, Jr., Livingston, for appellant.

C. Robert Montgomery, Chatom, for appellee Estate of James D. Abston, Sr.

Robert P. Reynolds of Reynolds, Reynolds & Duncan, LLC, Tuscaloosa, for appellee First United Security Bank.

THOMAS, Judge.

Before his death, James D. Abston, Sr. ("the father"), and three of his four children—James D. Abston, Jr. ("Junior"), Thomas Eddie Abston ("Eddie"), and Jimmie Faye McFadden—were the record titleholders of a parcel of real property in Washington County. After the father died in 2003, the coexecutors of his estate sold the property. From that sale, the estate received $136,978.76, representing the value of the father's undivided one-fourth interest in the property.

On November 24, 2004, D. Larry Abston ("Larry"), the father's child whose name was not on the deed to the Washington County property, filed a complaint seeking a judgment declaring that the proceeds of the sale of the property should be distributed to him rather than to the creditors of the estate because, he claimed, he was the beneficiary of a resulting trust. The estate answered, denying that Larry had any claim to the proceeds of the sale. First United Security Bank ("the Bank"), a creditor of the estate, moved to intervene; the trial court granted the Bank's motion.

The Bank propounded interrogatories and requests for production of documents, seeking the basis for Larry's claim. In response, Larry produced a document entitled "Notice of Federal Tax Lien"; an agreement between the coexecutors of the estate to allow the sale of the Washington County property; correspondence relating to the sale of the property; and an untitled, unsworn document signed by Larry's brothers, Junior and Eddie, stating that their father was the trustee of a onequarter interest in the property and that Larry was the beneficiary of the trust and, thus, the equitable owner of a one-quarter interest in the property.

The Bank moved for a summary judgment, attaching to its motion the documents it had obtained from Larry in discovery. The estate joined the Bank's motion. In opposition to the motion, Larry submitted his own affidavit as well as other documentary materials. The trial court entered a summary judgment in, favor of the estate and the Bank, concluding that Larry's submissions in opposition to the motion had failed to establish the elements of a resulting trust. Larry timely appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Appellate review of a summary judgment is de novo. Ex parte Salim, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(e)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Section 35-4-255, Ala.Code 1975, provides:

"No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing."

"It is well understood that a resulting trust arises by operation of law, in favor of him who advances the purchase money for land, though the title be taken in the name of another." Sanders v. Steele, 124 Ala. 415, 418, 26 So. 882, 885 (1899). "A resulting trust is a creature of equity, based on the presumption that he who furnishes the consideration for the purchase of lands intends the purchase for his own benefit." Leonard v. Duncan, 245 Ala. 320, 322, 16 So.2d 879, 881 (1944). A trust "arising as the result of a conveyance of property to one person on a consideration from another, [is] commonly referred to as a purchase-money resulting trust." McClellan v. Pennington, 895 So.2d 892, 896 (Ala. 2004). "Persons seeking to establish a resulting trust in land must not only show that the consideration moved from them, but that it was paid contemporaneous with the purchase of the land." Gandy v. Hagler, 245 Ala. 167, 171, 16 So.2d 305, 308 (1944). "`It is settled that the purchase price must be ordinarily furnished by one claiming a resulting trust at the very time of passage of title. The trust either arises at that very time, or it never arises at all. Subsequent contributions do not suffice . . . .'" Shirley v. McNeal, 274 Ala. 82, 85, 145 So.2d 415, 417 (1962) (quoting the trial court's order).

In opposition to the Bank's summaryjudgment motion, Larry submitted, among other things, his own affidavit. The affidavit states:

"My name is Larry Abston. I am the plaintiff in this case and a son of James D. Abston, Sr., who is now deceased. Sometime prior to April of 1994, Abston Services, Inc. agreed to distribute to me and my three siblings an amount sufficient to purchase a parcel of property in Washington County, Alabama, as described in the original complaint. Title to three-fourths of the property was taken in the names of my three siblings. Title to my one-fourth interest in the property was taken in the name of my father . . . in trust for my benefit. At the time of the purchase, an Internal Revenue Service (`IRS') tax lien had been filed against me. I disputed this lien and had taken action to have it released[;] however, we all (my three siblings, my father and I) agreed that it would be better for all involved if my father took title on my behalf after I had paid or caused to be paid my portion of the purchase price. This would prevent the IRS from filing a lien on the property while I continued to work on having the lien released. At no time were we trying to defraud the IRS; we just didn't want my dispute with the IRS to have any negative effect on my siblings' ownership of the property. It was understood that the trust would terminate at such time as the lien was released. The lien was eventually released; however, title was not conveyed to me by the Trustee before he passed away, because neither one of us knew the lien had been released. The property was sold in 2004 and the trust corpus was converted into personalty, i.e., $136,978.76, which is now being held in . . . the trust account [of the attorney for the estate]. I executed a quitclaim deed conveying my interest to the purchaser. On November 15, 2004, my two brothers, [Junior and Eddie], executed a document which acknowledged that this property had been held in trust by my father for my benefit. A copy of this document is attached hereto and marked Exhibit A to this affidavit.

"Besides having paid or caused to be paid my portion of the purchase price for the property, I also went into possession of the property and provided substantial `sweat equity' in the form of building approximately 4 miles of roads, clearing of 5 fields, construction of a bridge over Sinabogue Creek, construction of approximately 3 miles of 4wheeler trails, building 5 shooting houses, etc. I worked on our property for about two months. In all respects I was treated as a joint owner of the property. Along with my wife and children, I hunted on the property, used the camp house, took guests on the property, had keys to the gate, and had all privileges of an owner, privileges that had been discussed and agreed on by each of us (my siblings) as joint owners.

"My father and I never prepared a formal, written trust agreement. Since everything had been discussed and agreed to by each of us, since everyone knew that my interest in the property was being held by my father in trust, for my benefit, we didn't think a formal written trust agreement was necessary to protect my interest. Obviously, this was a mistake; however it shouldn't deprive me of my ownership of the funds being held in ... the trust account [of the attorney for the estate]."

(Emphasis added.)

I.

The Bank and the estate argue that the following statement in Larry's affidavit is not substantial evidence of Larry's payment of the purchase price of the Washington County property: "Sometime prior to April of 1994, Abston Services, Inc. agreed to distribute to me and my three siblings an amount sufficient to purchase a parcel of property in Washington County, Alabama." The Bank and the estate contend that the foregoing statement is a mere conclusion because, they say, the statement is unsupported by any "cancelled checks, board resolutions, tax returns, Form 1099's, memos, [or] letters."

The Bank and the estate misapprehend the material fact sought to be proved... The source of the funds—a distribution from Abston Services, Inc.—that Larry allegedly used to pay for his portion of the purchase price of the Washington County property is immaterial for purposes of determining whether Larry established the elements of a resulting trust. The relevant material fact is whether—not how— Larry paid his portion of the purchase price at the time of the passage of title. See Shirley v. Neal, 274 Ala. at 85, 145 So.2d at 417.

The trial court erred in determining that Larry ...