Connall v. Felton

• Decision Date: 14 January 2009
• Docket Number: A134751.,052355.
• Citation: 201 P.3d 219,225 Or. App. 266
• Court: Oregon Court of Appeals
• Parties: Carolyn CONNALL, Personal Representative of the Estate of Barbara J. Felton, Plaintiff-Respondent, v. Elon C. FELTON, Defendant-Appellant.

201 P.3d 219

225 Or. App. 266

Carolyn CONNALL, Personal Representative of the Estate of Barbara J. Felton, Plaintiff-Respondent, v. Elon C. FELTON, Defendant-Appellant.

052355.

A134751.

Court of Appeals of Oregon.

Argued and Submitted July 28, 2008.

Decided January 14, 2009.

Mark A. Gordon argued the cause and filed the briefs for appellant.

Robert A. Lucas, Rainier, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

WOLLHEIM, J.

Plaintiff, the personal representative of her mother's estate, brought this action on behalf of the estate seeking to quiet title to the decedent's real property that was her family home (the property), which the decedent transferred to defendant, her step-son, during her lifetime, reserving for herself a life estate. Plaintiff sought the imposition of a constructive trust on the property. She claims that the deed and extrinsic evidence establish that the decedent transferred the property to defendant only for the purpose of avoiding probate, intending that he hold the property in trust and share it equally with her six children. The trial court agreed with plaintiff and ordered defendant to transfer the property to the estate. Defendant appeals and, on de novo review, ORS 19.415, we reverse.

The decedent and Clifford Felton were married for 16 years. It was a second marriage for both of them. The decedent had six children from her first marriage, including plaintiff. Clifford had one child from his first marriage, defendant.

After they were married, Clifford and the decedent executed reciprocal wills. Each spouse's will named the other as the primary beneficiary and the decedent's six children and defendant as equal contingent residual beneficiaries. When Clifford died, the decedent, by operation of law, became the sole owner of the property, because the decedent and Clifford had held the property as tenants by the entirety. Shortly before her death, the decedent deeded the property to defendant, reserving for herself a life estate. She prepared the deed herself, borrowing terms from a form provided by a friend. The deed stated that "[t]he true and actual consideration paid for this transfer is $-0-; estate planning." The decedent had the deed notarized at a title insurance company and then recorded the deed.

Plaintiff learned of the deed either shortly before or just after the decedent's death. Noting the deed's reference to "estate planning," and based on conversations that plaintiff had had with the decedent shortly before her death but after the conveyance, plaintiff believed that the deed to defendant was for the purpose of avoiding probate of the property and that the decedent's intention was that, like the property distributed pursuant to the will, the property or its proceeds would be shared equally by all six of the decedent's children and defendant. Plaintiff does not contend that the deed created an express trust for the estate. Plaintiff brought this proceeding seeking a declaration that the property be held by defendant in constructive trust.

The trial court determined that the term "estate planning" was ambiguous. Based on the decedent's will, which the trial court concluded demonstrated an intention that all property be shared equally among her children and defendant, and testimony from the decedent's children concerning statements she had made to them before her death, the trial court determined that the decedent's intention was that the property be held by defendant until the decedent's death, just for the purpose of avoiding probate, and then be distributed equally among her children and defendant. The court said:

"It appears to me that [the decedent] was concerned that she wanted to avoid the expense of probate, wanted to make things easy on everyone, and she expected that by putting the property into [defendant's] name that he would then follow the instruction of the will and divide the property equally among her children and himself."

The court found by clear and convincing evidence that there was a resulting trust for the benefit of the estate and the general judgment it entered required defendant to transfer his interest in the real property to the estate.

On appeal, defendant asserts that the trial court erred in imposing a resulting trust on the property and ordering defendant to convey the property to the estate. For the reasons that follow, we conclude, on de novo review, that the requirements for the imposition of a resulting trust have not been met. Accordingly, we reverse the trial court's judgment.¹

A trust is an equitable obligation, either express or implied, placed on a person by reason of a confidence placed in her or him to hold the property for the benefit of some other person, or for the benefit of herself or himself and others. See Shipe et al. v. Hillman, 206 Or. 556, 562, 292 P.2d 123 (1956) (quoting Templeton v. Bockler, 73 Or. 494, 506, 144 P. 405 (1914)). An express trust is created when a grantor or trustor divests herself or himself of full legal and equitable ownership in property with a manifestation of intent to create legal title in a trustee and equitable ownership in a beneficiary. Brown v. Brown, 206 Or.App. 239, 249, 136 P.3d 745, rev. den., 341 Or. 449, 143 P.3d 772 (2006). An express trust in real property can be created only in writing subscribed to by the party creating the trust and executed with formalities required by law. ORS 93.020(1). Plaintiff does not contend that the decedent created an express trust when she deeded the property to defendant.

Implied trusts fall into two categories: constructive trusts and resulting trusts. Shipe et al, 206 Or. at 562, 292 P.2d 123. A constructive trust is a procedural device imposed to remedy a violation of a confidential or fiduciary relationship in order to avoid unjust enrichment. Brown, 206 Or.App. at 251, 136 P.3d 745. Plaintiff's complaint sought the imposition of a constructive trust; the trial court rejected that theory. We also conclude that the evidence in this case does not include circumstances that would justify imposition of a constructive trust. See Marston v. Myers et ux., 217 Or. 498, 509, 342 P.2d 1111 (1959) ("A `constructive trust' * * * is a trust by operation of law * * * against one who, by fraud, actual or constructive, by duress or abuse of confidence, or by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or other questionable means * * * has obtained or holds that legal right to property which he ought not, in equity and good conscience, hold and enjoy.").

Instead, the trial court determined that the decedent's actions gave rise to a resulting trust. A resulting trust arises when property is transferred under circumstances that give rise to an inference that the person who made the transfer does not intend the transferee to take a beneficial interest in the property. Shipe et al, 206 Or. at 563-64, 292 P.2d 123. It exists "by implications of law" and is presumed always to have been contemplated by the parties, "the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance." Id. The typical, but not exclusive, context for a resulting trust is the purchase of property by the alleged beneficiary when title is taken by another person. See Belton v. Buesing, 240 Or. 399, 417, 402 P.2d 98 (1965) (Lusk, J., concurring) ("[T]here are three categories of resulting trusts, to-wit: (a) the failure of an express trust; (b) the full performance of an express trust without exhausting the trust estate; and (c) the payment of the purchase price of property by one who directs that title be taken in the name of another."); De Roboam v. Schmidtlin, 50 Or. 388, 92 P. 1082 (1907). In every case, evidence must be clear and convincing to establish that the property was conveyed in trust, contrary to the express terms of the deed. De Roboam, 50 Or. at 393, 92 P. 1082; see also Fry v. D.H. Overmyer Co., Inc., 269 Or. 281, 292, 525 P.2d 140 (1974) (A deed absolute on its face "is what it purports to be unless and until proved otherwise by clear and convincing evidence.").

In this case, the trial court believed that the deed itself, along with the decedent's will and subsequent conversations of the decedent with her family, demonstrated circumstances showing that the decedent intended to transfer the property to defendant in trust. The trial court first reasoned that the term "estate planning" gave rise to an ambiguity as to the decedent's intentions. It relied on that ambiguity as a basis for considering testimony of conversations between the decedent and family members after she executed the deed and before her death.

We first address the trial court's determination that there was an ambiguity in the deed. In interpreting the deed, we resort to the familiar methodology established by statutes and case law. Our objective is to ascertain the meaning that most likely was intended by the parties who entered into it. ORS 42.240 ("In the construction of an instrument the intention of the parties is to be pursued if possible[.]"); see Tipperman v. Tsiatsos, 327 Or. 539, 544-45, 964 P.2d 1015 (1998) (construing deed); Yogman v. Parrott, 325 Or. 358, 361 937 P.2d 1019 (1997) (construing a contract). We look first to the language of the instrument itself and consider its text in the context of the document as a whole. If the text's meaning is unambiguous, the analysis ends, and we interpret the provision's meaning as a matter of law. Yogman, 325 Or. at 361, 937 P.2d 1019.

To determine whether a term in a document is ambiguous, the court can consider evidence of the circumstances surrounding its execution. Abercrombie v. Hayden Corp., 320 Or. 279, 292, 883 P.2d 845 (1994); Batzer Construction, Inc. v. Boyer, 204 Or.App. 309, 129 P.3d 773 (2006); ORS 42.220; ORS 41.740.² A provision...