Howe v. Howe

• Citation: 199 Mass. 598,85 N.E. 945
• Parties: HOWE et al. v. HOWE.
• Decision Date: 21 October 1908
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 598
85 N.E. 945

HOWE et al.
v.
HOWE.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 21, 1908.

Appeal from Superior Court, Worcester County; William Cushing Wait, Judge.

Suit by Ellen M. Howe and others against Frank F. Howe. From a decree for plaintiffs, defendant appeals. Modified and affirmed.

[199 Mass. 605]Sheehan & Cutting, for appellant.

Arthur M. Taft and John B. Scott, for appellees.

[199 Mass. 599]RUGG, J.

This is a suit in equity by the widow, who is also the executrix of the will, of Elbridge G. Howe, and the other plaintiffs, who are devisees of interests in the real estate of said [199 Mass. 600]Elbridge, against the defendant, who is a son of said Elbridge, seeking to establish a resulting trust in their favor in certain real estate, the legal title to which was in the defendant. No appeal was taken from the order overruling the defendant's demurrer, so that no question raised by it is before us. There was a hearing before a justice of the superior court, who filed a memorandum of facts found by him and entered a decree establishing the trust, from which the defendant appealed. The defendant presented 40 prayers for rulings, all of which were refused, as either immaterial in view of the findings made or unsound in law. A considerable number of these have not been argued, and are treated as waived.

It is first argued that the bill of complaint contains no sufficient allegation of a resulting trust, and that hence the decree is not within the scope of the bill. It is distinctly averred that, at the time of the purchase of the real estate in question, the entire consideration was paid by Elbridge G. Howe, who had always thereafter until his death occupied and received all the rents and profits, and that the conveyance was made to one Mowry, who never occupied or used the premises or received any benefit therefrom, who held the title for the benefit of Elbridge G. Howe, and who thereafter at his request conveyed the estate to Walter H. Howe without consideration, it being understood and agreed between Elbridge G. and Walter H. Howe that the latter was holding the title for the use and benefit of the former, as Mowry had done; and that later, at the request of Elbridge G. Howe, said Walter H. conveyed the premises without consideration to the respondent, who never occupied or received any of the income or rent from them, but who held the legal title for the use and benefit of his father as said Mowry and Walter H. had done. This is in substance an averment of an initial purchase by the father, who paid the consideration, and subsequent conveyance by Mowry to Walter H. and by him to Frank E. with notice of the circumstances of the original transaction and assent to its terms. These allegations sufficiently state a resulting trust within the well recognized principle of equity jurisprudence, that where one buys and pays for real estate, but the conveyance of the title is to another, a trust results in favor of the one who pays the consideration, which may be enforced in [199 Mass. 601]equity against the grantee named in the deed, who is treated as subject to all the obligations of a trustee. Lufkin v. Jakeman, 188 Mass. 528, 74 N. E. 933;Skehill v. Abbott, 184 Mass. 145, 68 N. E. 37;Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461. Such a trust may be established by parol, and the statute of frauds does not apply to such transactions. Livermore v. Aldrich, 5 Cush. 431; Rev. Laws, c. 147, § 1. Nor is it of any consequence that the consideration paid was not out of funds on hand by the original cestui que trust but from the proceeds of money borrowed by him even from the trustee, provided the fact of the loan is clear. McDonough v. O'Niel, 113 Mass. 92.

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