Fleckhamer v. Fleckhamer

• Decision Date: 09 December 1929
• Docket Number: No. 893.,893.
• Citation: 147 A. 886
• Parties: FLECKHAMER v. FLECKHAMER et al.
• Court: Rhode Island Supreme Court

147 A. 886

FLECKHAMER

v. FLECKHAMER et al.

No. 893.

Supreme Court of Rhode Island.

Dec. 9, 1929.

Appeals from Superior Court, Providence and Bristol Counties; Hugh B. Baker, Judge.

Bill in equity by Nellie G. Fleckhamer against Mary E. Fleckhamer and others. From the decree rendered, complainant and respondent Landin both appeal. Modified in part, and in other respects affirmed.

William H. Edwards and Edwards & Angell, all of Providence, for complainant.

William S. Flynn and Edmund W. Flynn, both of Providence, for respondents Fleckhamer and Landin.

McGovern & Slattery, of Providence, for respondent Doyle.

PER CURIAM. This is a bill in equity seeking to establish a constructive trust on different parcels of real estate, the purchase price of which was paid, in part at least, from misappropriated funds. The bill seeks also a decree in personam against respondent Mary E. Fleckhamer for money which she received from the proceeds of a parcel of said real estate. After hearing on bill, answer, and proof, the superior court entered a decree dismissing the bill as to respondent Doyle and Fleckhamer and impressing a trust in favor of the complainant upon property referred to as the Scituate real estate for the sum of $1,950, subject to certain mortgages and taxes. The cause is before us (1) on complainant's appeal from the portions of the decree dismissing the bill as to Doyle and Fleckhamer; (2) on appeal of respondent Landin from the portions of said decree impressing a trust upon said Scituate real estate.

The complainant deposited in two savings banks in the joint names of her son Albert L. Fleckhamer and herself money which she received as a gift from her husband's mother. Although the bank books were intrusted to the son, it was agreed between him and his mother that he would not, during her lifetime, draw any of the money, but that on her decease the accounts would belong to him. The son in his lifetime was the husband of respondent Mary E. Fleckhamer. Without the mother's consent or knowledge the son drew from said accounts sums of money totaling $8,901. From the evidence it seems reasonably certain that a considerable portion of this money became a part of the purchase price of the Scituate real estate and the Barrington real estate which were purchased by the son in his own name and later transferred through a third person to himself and respondent Fleckhamer, his wife, as joint tenants. Upon the death of the son, his wife, as surviving joint tenant, because the sole owner of the legal title to both parcels of real estate. She contributed nothing to the purchase price. The son died after a brief illness. Within about 48 hours before his death, and when he was in extremis, he said to his father: "Pa, I took Ma's money. I will make good after I get better. Will you take me home?" On April 29, 1927, the day following the son's funeral, the complainant together with respondent Fleckhamer, the son's widow, visited the banks in question, and the complainant learned of the son's withdrawals. On May 6, 1927, she delivered to respondent Fleckhamer a schedule of the unauthorized withdrawals and asked her what she was willing to do about it. She replied that she did not know, but that she would call the complainant on the telephone and discuss the matter with her on the third day thereafter. Respondent Fleckhamer did not keep her promise to telephone, but, on the fourth day, May 10, 1927, conveyed both the Barrington and Scituate real estate to respondent August W. Landin with whom she was living. On June 9, 1927, Landin in turn conveyed the Barrington real estate to respondent Doyle. Landin attempted to sell the Scituate real estate also to Doyle, but he refused to purchase because of an outstanding option. He did, however, loan Landin $1,500 and took as security a mortgage on the Scituate real estate.

The bill prayed for relief of three kinds: (1) The creation of a constructive trust in the Scituate real estate in favor of the complainant for the money unlawfully withdrawn by the complainant's son from the bank accounts and invested in this real estate; (2) the creation of a similar constructive trust, for the same reasons, in the Barrington real estate; and (3) a decree in personam against Mary E. Fleckhamer for the amount which, as a donee, she benefited by the unauthorized withdrawals.

The trial justice in his decision, on which said decree was based, granted the complainant relief with respect to the Scituate real estate. He found that the respondent Landin, as grantee, took the real estate with notice of the complainant's claim, and that, subject to the first mortgage of $1,200 and the second mortgage of $1,500, he held the equity in the property in trust for the complainant to the extent of $1,950, the amount of cash which the complainant's son had paid out in purchasing the property. As a basis for this holding, said justice found that an agreement existed between the complainant and her son that he would not withdraw money from either of said accounts during her lifetime; that the son in making the unauthorized withdrawals committed a breach of trust; that he invested $1,950 of the money thus wrongfully appropriated in the Scituate real estate; and that, as Landin was not a bona fide purchaser of the real estate, the complainant was...