Levy v. Levy

• Citation: 35 N.E.2d 659,309 Mass. 486
• Parties: LEVY v. LEVY.
• Decision Date: 11 July 1941
• Court: United States State Supreme Judicial Court of Massachusetts

309 Mass. 486

35 N.E.2d 659

LEVY

v.LEVY.

Supreme Judicial Court of Massachusetts, Suffolk.

July 11, 1941.

Suit by Julius Levy against Helen Levy for an accounting of moneys allegedly entrusted by the plaintiff to the defendant and to obtain delivery of a policy of life insurance and certain articles of jewelry alleged to be wrongfully withheld by the defendant. From interlocutory and final decrees for the plaintiff, the defendant appeals.

Interlocutory decree affirmed and the final decree modified and, as so modified, affirmed.Appeal from Superior Court, Suffolk County.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

H. Snyder, of Boston, for plaintiff.

M. Caro and S. Z. Kaplan, both of Boston, for defendant.

DOLAN, Justice.

This is a bill in equity in which the plaintiff seeks an accounting from the defendant, his wife, of certain moneys alleged by him to have been entrusted to her, and also the assignment and delivery to him of a certain policy of life insurance, and the delivery of certain articles of jewelry alleged by him to be wrongfully withheld by her.

Upon the coming in of the master's report the judge entered an interlocutory decree overruling the defendant's exceptions to the report and confirming the report. The defendant appealed from this decree. Thereafter the judge entered a final decree that the defendant ‘holds the sum of $2,512.73 upon trust’ for the plaintiff, that she be ordered to pay the same with costs to the plaintiff, that she be ordered to deliver to him a gold watch, ‘the property of’ the plaintiff, that she deliver to him ‘Policy of Life Insurance upon the life of the * * * [plaintiff] issued by the John Hancock Mutual Life Insurance Company in the sum of $10,000 being the property of the * * * [plaintiff],’ and that her counterclaim be dismissed without costs. The defendant duly appealed. She has not argued before us that the dismissal of her counterclaim was erroneous.

The parties in this case are the same as in the case of Levy v. Levy, 309 Mass. 230, 34 N.E.2d 650, in which the plaintiff here, as libellant, sought unsuccessfully to obtain a decree of nullity of his marrige with the libellee, the defendant in this case.

The material facts found by the master may be summarized as follows: The parties were married in New York on January 3, 1938. They were at all times domiciled in Massachusetts, to which they returned on the day just mentioned. On January 13, 1938, the plaintiff gave the defendant $421 to pay for a ‘so-called engagement rign.’ Prior to giving her this sum of money, in a conversation overheard by a third person, he told the defendant that he had over $5,000 in cash. The defendant went over the books of the corporation of which the plaintiff was president and owner of fifty per cent of the stock, and then informed the plaintiff that ‘his money was not safe in the event that the business got into financial difficulties; that he should turn over his money to her and that she would use it for setting up housekeeping keeping and return to him on demand such money as was left after using it for said purpose; [and] that the great bulk of the money would be protected for the * * * [plaintiff] in the event of business difficulties.’ As a result, the plaintiff during the months of January, February and March turned over to the defendant by way of orders on several savings banks $5,550.42, of which she ‘actually received’ $4,550.42. The plaintiff had stated to a ‘Mrs. Shuman’ that he had given the defendant ‘a one thousand dollar gift as a St. Valentine's Day gift.’ The master found, however, that he made that he made that statement for the purpose of ‘making * * * Mrs. Shuman think that * * * [he] was being very good to’ the defendant. The plaintiff did give one order on February 15, 1938, to the defendant, on the Eliot Savings Bank of Roxbury, in the sum of $1,088.56, which she collected. Out of the total sum actually received by the defendant she expended for household purposes, including furnishings, and for other purposes with the consent of the plaintiff $2,662.06, leaving in her hands as of May 27, 1938, the date of the separation of the parties, ‘the sum of * * * $1,848.36 [sic]’.¹

On February 1, 1938, the plaintiff was the owner of a policy of insurance issued by the John Hancock Mutual Life Insurance Company of Boston in the sum of $10,000. On that date he assigned the policy to the defendant upon her request and her statement that he could have a reassgnment of the policy ‘upon request.’ Late in August (about three months after the parties separated) the defendant borrowed $1,061 on this policy, which was its maximum loan but not its maximum cash On the day the parties separated the plaintiff lent the defendant a ‘twenty-one jewel gold * * * watch’ which she has not returned to him.

1. The plaintiff contends that the moneys transferred by him to the defendant were upon an express trust, under the terms of which she was to return any portion that had not been expended upon demand by him; that her refusal so to do constituted a breach of trust by her entitling him to an accounting in this proceeding, and an order to pay to him the sum found to have been unexpended by her at the date of separation. The defendant contends, on the other hand, that the transaction was one of a gift rather than a trust, and further, that even if a trust was created, it was a ‘joint trust’ under which she should be credited with amounts expended by her for necessaries sice the date of the separation.

To establish a trust of the moneys remaining in the hands of the defendant after the expenditures made by her in accordance with the understanding of the parties, it was necessary for the plaintiff to prove that it was not intended at the time of the transfers to the defendant that she should take a beneficial interest in the property by way of gift, settlement or advancement. Pollock v. Pollock, 223 Mass. 382, 384, 111 N.E. 963;Berry v. Kyes, 304 Mass. 56, 61, 22 N.E.2d 622, and cases cited. In the instant case, in contradistinction to other decided cases such as the Pollock case just cited, the moneys involved were those of the plaintiff. No contribution to the funds in question was made by the defendant. The controlling factor is the manifestation by the parties of an intention that a trust be created, a question of fact. Povey v. Colonial Beacon Oil Co., 294 Mass. 86, 90, 91, 200 N.E. 891; Scott, Trusts, § 23; Am.Law Inst.Restatement: Trusts, § 23. The master's finding, that the funds involved were turned over by the plaintiff to the defendant, at her request, to be used by her for setting up housekeeping, and upon her promise to return to him ‘on demand such money as was left after using it for said purpose,’ and her representation that the great bulk of the money would be protected ‘in event of business difficulties,’ is consistent with the subsidiary findings made by him and so must stand. Dodge v. Anna Jaques Hospital, 301 Mass. 431, 435, 17 N.E.2d 308. The conclusion is that there was no intention to make a gift of the funds to the defendant, but that the intention was that the defendant should hold them is trust for the plaintiff upon the terms under which the transfer to the defendant was made. In so far as the funds were to be used as necessary by the defendant for setting up housekeeping, that constituted not a gift to her, but a trust...