Epstein v. Epstein

191 N.E. 418, 287 Mass. 248, 1934 Mass. LEXIS 1135

• Court: Massachusetts Supreme Judicial Court
• Decided: June 28, 1934
• Status: Published

Opinion

Lummus, J.

The plaintiff is a son of the late Salmon Epstein. The defendants are Annie Epstein, the widow of Salmon Epstein, and the other heirs of Salmon Epstein. In 1919 the plaintiff negotiated for the purchase of a parcel of land with buildings in New Bedford, for $56,000, of which $40,000 was to be represented by a mortgage. The contract and the deed were taken in the name of the plaintiff’s wife, Rose Epstein, who acted solely at the direction of the plaintiff. Of the cash paid, the plaintiff contributed $2,800, Salmon Epstein contributed $1,500, and other members of the family lent the plaintiff the rest, which was later repaid. The $40,000 mortgage note was signed by the plaintiff and his wife. '

In 1921 Rose Epstein conveyed the property to the plaintiff and Salmon Epstein as tenants in common. The master found that “the purpose for which Abraham [the plaintiff] directed his wife, Rose Epstein, to convey the property to Abraham and his father, Salmon, was to increase the credit of Abraham with the New Bedford banks,” and that “Salmon Epstein did not have and did not claim any beneficial interest in the locus and that he held the undivided one-half interest of which he had title for the use and benefit of his son, Abraham, and under the • direction and for the benefit of Abraham.” Exceptions of the defendants to the master’s report were overruled, the report was confirmed, and a final decree entered for the conveyance to the plaintiff of the half interest which had stood in the name of Salmon Epstein. The defendants appealed.

Although Salmon Epstein contributed $1,500 to the purchase price when the property was bought and the title taken in the name of Rose Epstein, there is no finding that he made his contribution for any specific interest in the property. Therefore no trust resulted in his favor. Druker v. Druker, 268 Mass. 334, 340, 341. Even though any presumption of a gift of his contribution to the plaintiff, his adult son, may be “attenuated” (Howe v. Howe, 199 Mass. 598, 604), the master finds that “The financial transactions . . . [between them] were equally consistent with the characteristic generosity of Salmon as with any proprietary interest.” Besides, there is nothing to show that Salmon’s contribution was not repaid. The master finds that Salmon, his son-in-law Simon Beserosky, and the plaintiff had many financial transactions over a course of years, and that “The various transactions between Abraham, Salmon and Beserosky were apparently handled to mutual satisfaction and there is no disputed claim outstanding by any of said parties.” At any raté, no resulting trust in favor of Salmon arose at the time of the purchase of the property in 1919. Nothing done afterwards could create one. Dwyer v. Dwyer, 275 Mass. 490, 494. Quinn v. Quinn, 260 Mass. 494, 503.

The fact that the title was taken in 1919 in the name of the plaintiff’s wife was not conclusive that it was a gift to her, whatever may have been the presumption. Dwyer v. Dwyer, 275 Mass. 490, 494. The master finds that she “acted solely at the direction of Abraham, her husband,” that Abraham, the plaintiff, acted as sole owner, and that she conveyed the property to Abraham and Salmon in 1921 “at the direction of Abraham.” The answer of the defendants does not suggest that Rose was other than a trustee, but alleges “that the plaintiff, his father, Simon Beserosky and Annie Epstein, now Glassman, purchased said premises and that the interests of said Simon Beserosky and Annie Epstein, now Glassman, were acquired by the plaintiff and his father, Solomon [Salmon] Epstein.” Whether Rose held subject to an enforceable resulting trust or not, it is plain that she held merely as trustee for the plaintiff, and performed her duty as such by conveying the property at his direction. Briggs v. Sanford, 219 Mass. 572, 575. Ferguson v. Winchester Trust Co. 267 Mass. 397, 400. But we see no reason to doubt that Rose held subject to an enforceable resulting trust, and the defendants do not argue the contrary.

When Rose conveyed to the plaintiff and Salmon, without consideration, the conveyance was, as to Salmon, “a mere transfer of the title, which . . . [she] held confessedly as trustee, to . . . [Salmon] to continue to hold as trustee in succession.” Howe v. Howe, 199 Mass. 598, 605. See also Cook v. Howe, 280 Mass. 325, 328, 329; Beacon Oil Co. v. Maniatis, 284 Mass. 574.

The defendants complain that the master failed to append to his report a summary of so much of the evidence as was necessary to enable the court to determine questions of law raised by objections presented, as required by Rule 90 of the Superior Court (1932). No error of law is shown in confirming the report notwithstanding the failure of the master to comply with the request of the defendants for such a summary. No such question of law was pointed out to the master, the court below or this court; all the objections, which became exceptions by force of said rule, relate to findings of fact and are not argued. Furthermore, the motion to recommit with directions to append such a summary of evidence as is required by that rule was not accompanied by any affidavit showing what the evidence was that was necessary to enable the Superior Court to determine a specified question of law arising upon a specified objection presented to the master, as provided by Rule 46 of the Superior Court (1932). Koch, petitioner, 225 Mass. 148, 150.

Whether, or how far, findings of fact made by a master shall be subjected to analysis by recommitting the case to him with directions to report subsidiary facts or evidence by which the correctness of his findings in point of fact may be tested, is discretionary with the court that appointed him. E. Kronman, Inc. v. Bunn Bros. Inc. 265 Mass. 549, 555. Lamb Knitting Machine Co. v. Chicopee Manuf. Co. 273 Mass. 506, 517. Ryder v. Donovan, 282 Mass. 551, 554. Carleton & Hovey Co. v. Burns, 285 Mass. 479, 483, 484. For an instance in which further analysis was ordered, see Wilson v. Jones, 280 Mass. 488.

The defendants suggest that the suit is barred by the statute of limitations. That is not so, for there was no repudiation of the trust until after the death of Salmon on October 19, 1931. Lufkin v. Jakeman, 188 Mass. 528, 530 531. Quinn v. Quinn, 260 Mass. 494, 497.

Interlocutory decree affirmed.

Final decree affirmed with costs.