Aronian v. Asadoorian

• Decision Date: 28 December 1943
• Citation: 315 Mass. 274,52 N.E.2d 397
• Parties: ARONIAN v. ASADOORIAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 274

52 N.E.2d 397

ARONIAN

v.ASADOORIAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 28, 1943.

Suit in equity by Nuvart Aronian, administratrix of the estate of Hagop Aronian, deceased, against Bedros Asadoorian and others to set aside a trust in realty for the benefit of deceased's sons. From a final decree declaring that title to the realty passed to the sons by virtue of a trust deed, plaintiff appeals.

Modified, and affirmed as modified.Appeal from Superior Court, Middlesex County; Baker, Judge.

Before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

J. T. O'Callahan, and M. L. Sherin, both of Boston, for plaintiff.

H. F. R. Dolan and A. Brooks, both of Boston, for defendants.

QUA, Justice.

The administratrix of the estate of Hagop Aronian, having a license from the Probate Court to sell for the payment of debts certain real estate in Waltham which she claims belonged to her intestate at the time of his death, prosecutes this bill to set aside a trust of the premises which the defendants Aron Aronian and Krikor Aronian, sons of the deceased, claim their father created for their benefit before his death.

The determinative facts found by the trial judge are these: The deceased had acquired the property because there was a drug store upon it. He planned to educate his sons as druggists and intended that they should take over and operate the store. He caused the property to be purchased in the name of the defendant Asadoorian, who held the title as a ‘straw’ upon a dry trust for the deceased. In pursuance of his original purpose, the deceased, about three months before his death, which occurred on November 25, 1940, caused Asadoorian to execute and deliver to the deceased a deed of the premises, in the habendum of which it was expressly set forth that the deceased was to hold the premises as trustee for the benefit of his two sons; that the trust should terminate upon the death of the trustee; and that upon such termination the title should vest in the two sons. The deceased accepted the deed and the trust, but the deed was not recorded until after his death. We assume, as the parties have assumed, that this deed is to be construed as conveying the legal title in fee to Aronian and not merely a life estate with remainder to the sons. See G.L.(Ter.Ed.) c. 183, § 13.

The plaintiff contends that no complete and valid trust was created for the benefit of the sons. We see no sound basis for this contention. The deceased was the equitable owner of the property. He could have demanded an outright conveyance from Asadoorian to himself and could then have conveyed to another in trust for the sons or could have declared himself to be trustee for their benefit. Instead, he preferred to have Asadoorian convey the legal title to him upon an express trust for the benefit of his sons. This was an equally effective method. It is difficult to see how an express trust in real estate can be any more effectually created than by a deed with an habendum in trust setting forth the terms of the trust in detail, delivered to and accepted by the grantee.

The trust came into existence before the recording of the deed. The recording statute, G.L.(Ter.Ed.) c. 183, § 4, does not affect the validity upon delivery of an unrecorded deed as between the parties to it or as to persons with notice. Earle v. Fiske, 103 Mass. 491. It merely protects subsequent purchasers or attaching creditors without notice. Pomroy v. Stevens, 11 Metc. 244, 247, 248;Smythe v. Sprague, 149 Mass. 310, 312, 21 N.E. 383,3 L.R.A. 822;Philadelphia & Reading Coal & Iron Co. v. City of Boston, 211 Mass. 526, 531, 98 N.E. 1067;Lamson & Co., Inc., v. Abrams, 305 Mass. 238, 244, 25 N.E.2d 374;Tilton v. City of Haverhill, 311 Mass. 572, 578, 579, 42 N.E.2d 588.

The plaintiff argues that the trust was not valid because it does not appear that the two sons as cestuis que trust had notice of the trust during the lifetime of the settlor. If we assume that they had no notice, we are nevertheless of opinion that the trust is valid. There exists in this Commonwealth a peculiar rule of law to the effect that, in some circumstances, a bare voluntary declaration of trust by the owner of property who retains the legal title and actual power of control is not effectual unless communicated to the beneficiary. In the earliest extended discussion of the subject and in some later cases failure to notify the beneficiary seems to have been regarded as hardly more than one circumstance of weight tending to indicate that the alleged settlor did not intend to complete the alleged trust as a definite finality. These were cases where the acts of the alleged settlor were of a more or less equivocal character, and where the lack of notice would have substantial probative force upon the question of intent. Brabrook v. Boston Five Cents Sav. Bank, 104 Mass. 228, 6 Am.Rep. 222;Cummings v. Bramhall, 120 Mass. 552, 564;Jewett v. Shattuck, 124 Mass. 590;Sherman v. New Bedford Five Cents Sav. Bank, 138 Mass. 581;Alger v. North End Sav. Bank, 146 Mass. 418, 15 N.E. 916,4 Am.St.Rep. 331.Thus in Gerrish v. New Bedford Inst. for Sav., 128 Mass. 159, at pages 163, 164,35 Am.Rep. 365, the court said: ‘Notice to the donee is indeed not necessary when other acts or declarations of the donor are sufficient and complete in themselves; but, where the transaction is capable of two interpretations and the settlement is merely voluntary, it is plain that notice given by the donor to the donee of the existence of the trust would in most cases be decisive on the question of intention. It takes the place of that delivery which is necessary to perfect a gift of personal property. It is not only satisfactory evidence of an executed intention, but it is a declaration in the nature of an act necessary to complete the transaction and create the trust.’ Cases in which a requirement of notice to the beneficiary has crystalized into a rule of law are of the same general type; that is to say,...