Tenczar v. Tenczar

• Decision Date: 28 December 1954
• Citation: 332 Mass. 105,123 N.E.2d 359
• Parties: Mary TENCZAR v. John TENCZAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 359

123 N.E.2d 359

332 Mass. 105

Mary TENCZAR v. John TENCZAR.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 26, 1954.

Decided Dec. 28, 1954.

John J. Harrington, Fall River, for petitioner.

John F. O'Donoghue, Fall River (H. William Radovsky, Fall River, with him), for respondent.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ.

WILKINS, Justice.

The petitioner is the respondent's wife. By this petition she asks that a 'specific account' which had been in the husband's name in Fall River National Bank should 'be declared to have been the result of the joint efforts of the parties and should be shared equally by them.' The decree declared that the money in the account 'was owned' by them 'as tenants in common,' and ordered the respondent, who before the date of the petition had closed the account by withdrawing $4,145.48, 'to deliver' to the petitioner 'the sum of $2,072.74, which is one half of the money so jointly accumulated by them.' The respondent appealed. The evidence is not reported. Upon request, the judge made a report of the material facts found by him. G.L.(Ter.Ed.) c. 215, § 11, as amended by St.1947, c. 365, § 3. This report under the statute must be taken to contain all the material facts upon which he based his decision, and there is no room for the implication of further findings. Sidlow v. Gosselin, 310 Mass. 395, 397, 38 N.E.2d 665. We have to decide the case on just those facts including any inferences we may properly draw from them. Vergnani v. Vergnani, 321 Mass. 699, 702, 75 N.E.2d 497; Brown v. Brown, 323 Mass. 332, 333, 81 N.E.2d 820.

The findings are meager. The parties were married in 1941. On June 19, 1953, the Probate Court for Bristol County entered a decree that the husband was living apart from his wife for justifiable cause. A decree in equity at that time ordered an equal division between them of an account in Fall River Savings Bank. ¹ The account in Fall River National Bank which is the subject of the present petition, was opened by the husband in his own name in March, 1945, and closed in September, 1952, when the balance was $4,145.48. ² The wife and the husband were both employed during their marriage. Their salaries were 'turned over' to the wife, who paid household expenses. The balance was divided and deposited in the two accounts. The account in Fall River National Bank 'Was accumulated by the joint efforts of the petitioner and respondent, and the said account was owned by the petitioner and the respondent as tenants in common, and should be equally distributed between them.'

The mere fact that the wife contributed to an account in the husband's name did not give rise to a trust. 'It was held in English v. English, 229 Mass. 11, 12, 13, 118 N.E. 178, that when either husband or wife pays money or transfers property to the other, there is no presumption that it is received in trust. If a trust is alleged to exist, it must be proved. 'In the absence of such proof, it must be deemed that the money, property or conveyance was received with the intention, that it be applied to the use and benefit of either or both at the discretion of the recipient.'' Hogan v. Hogan, 286 Mass. 524, 526, 190 N.E. 715, 716; Russell v. Meyers, 316 Mass. 669, 673, 56 N.E.2d 604. See Cram v. Cram, 262 Mass. 509, 513, 160 N.E. 337. If the wife had contributed to the purchase price of real estate, title to which was taken in the husband's name, before there...