Pollock v. Pollock

• Decision Date: 07 March 1916
• Citation: 223 Mass. 382,111 N.E. 963
• Parties: POLLOCK v. POLLOCK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 382

111 N.E. 963

POLLOCK

v.POLLOCK.

Supreme Judicial Court of Massachusetts, Middlesex.

March 7, 1916.

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

Bill by Andrew L. Pollock against Agnes D. Pollock. From a final decree dismissing the bill, plaintiff appeals. Affirmed.

John J. Scott, of Boston, for appellant.

William R. Buckminster and Arthur J. Wellington, of Boston, for appellee.

PIERCE, J.

From the findings of fact it appears that October 9, 1907, the plaintiff with the assent and approval of his wife, the defendant, took title in the name of his wife to the real estate upon which, in his bill, he seeks to have impressed a resulting trust in his favor. The consideration paid for the conveyance was $3,000, which was made up of and had its source in money on deposit in the name of the wife in a savings bank, in cash directly furnished by the husband and from the avails of a note, signed only by the wife, which note was secured by a mortgage upon the real estate conveyed and which does not appear ever to have been paid. The money on deposit in the name of the wife in amount was $1,057.22. Of that sum, $525 represented $486 with accumulated interest, which the wife on her marriage in 1904 brought to the husband as her ‘dowry.’ This ‘dowry’ does not appear ever to have been given to the husband for his sole use, but was intended by both husband and wife to be used for the family. Its deposit in the savings bank in the name of the wife was made at the suggestion of the husband and was but convenience in its use. Both ‘intended the property to be held for their joint use.’

To establish a resulting trust the husband must prove that he furnished himself the entire consideration or a specific and definite part thereof, for which it was intended he should receive a determinate and fixed fraction of the whole estate conveyed. Bailey v. Hemenway, 147 Mass. 326, 17 N. E. 645;Skehill v. Abbott, 184 Mass. 145, 68 N. E. 37. In addition, the evidence must be clear that it was not intended at the time of the conveyance that the wife should take a beneficial interest in the property by way of gift, settlement or advancement. Cairns v. Colburn, 104 Mass. 274;Edgerly v. Edgerly, 112 Mass. 175;Patterson v. Patterson, 197 Mass. 112, 83 N. E. 364.

Considering the fact that the deposit in the savings bank was intended by husband and wife to be for family use, that both intended the property when conveyed to the wife to be for their joint use and that the note signed by the wife is outstanding and unpaid, the inference cannot be drawn that the entire consideration was paid by the husband with his own money or with the money lent or given to him by his wife, nor can it be found that he furnished a distinct part of the consideration of his own money or of money loaned or given to him by his wife with the intention to receive of the estate a share equivalent to the ratio the sum paid bore to the whole...