O'Brien v. O'Brien

• Citation: 256 Mass. 308,152 N.E. 80
• Parties: O'BRIEN v. O'BRIEN et al.
• Decision Date: 04 June 1926
• Court: United States State Supreme Judicial Court of Massachusetts

256 Mass. 308

152 N.E. 80

O'BRIEN

v.O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Essex.

June 4, 1926.

Appeal from Superior Court, Essex County; Morton, Judge.

Suit by John J. O'Brien against Alice O'Brien and others. Decree for plaintiff, and defendant named appeals. Affirmed.

R. L. Sisk, of Lynn, for appellant.

R. W. Reeve and A. B. Tolman, both of Lynn, for appellee.

CARROLL, J.

The plaintiff and defendant are husband and wife. The husband seeks, in his suit in equity, an accounting of property standing in the wife's name, that she be ordered to convey ‘to * * * the plaintiff such property as may belong to’ him.

The master found that the plaintiff and the defendant ‘turned their earnings into a common fund’; that they ‘kept boarders and lodgers,’ and in the conduct of this business both parties actually worked; ‘that this business was conducted jointly by them for their joint benefit.’ It could not be determined what profits were derived from the business, nor the amount each contributed to the common fund from their ‘outside employment.’ The master also found that this fund was treated as a common fund and was owned jointly by them ‘for their mutual benefit’; that all of the property involved in the controversy was purchased from ‘this common fund which belonged equally to plaintiff and defendant.’ It was also found that the real estate and mortgage were purchased from money ‘taken out of common funds belonging equally to plaintiff and defendant’; that the bank deposit was made from this common fund belonging to plaintiff and defendant; ‘that the title thereto taken by the defendant was taken by her to hold as common property for herself and the plaintiff and not for herself alone; and that she now holds such title in trust for herself and the plaintiff in equal shares.’ In the superior court a decree was entered for the plaintiff, from which the defendant appealed.

[1] A resulting trust may be established between husband and wife; and property standing in the name of the wife may be recovered by the husband if he proves that he furnished the entire consideration, or a specific part thereof, and that it was not intended that the wife should hold the property by way of gift, settlement or advancement. Pollock v. Pollock, 223 Mass. 382, 111 N. E. 963;Daniels v. Daniels, 240 Mass. 380, 134 N. E. 235;Browdy v. Browdy, 250 Mass. 515, 145 N. E. 868.

[2] The evidence is not reported. The findings of the master, therefore, must stand, unless shown by the report to be erroneous. Daniels v. Daniels, supra; Jenanyan v. Fisher, 229 Mass. 472, 118 N. E. 878.

[3] The master has found that the property was purchased by the defendant with money which belonged equally to herself and the plaintiff, that the title was taken in her name, but in trust for herself and husband in equal shares. These findings...