Kayden v. Verkins

548 So. 2d 1154, 14 Fla. L. Weekly 1775, 1989 Fla. App. LEXIS 4222, 1989 WL 82145

Opinion

DANIEL, Chief Judge.

Bernard Kayden appeals a final judgment which denied his claim to one-half of the proceeds from the sale of real property titled in the name of Donald Verkins. The court below found that Verkins, now deceased, had created a declaration of trust in which he declared that he held the property “in trust for the benefit of Bernard H. Kayden or his Corporation with a fifty (50%) percent interest therein, and the remaining fifty (50%) percent in trust for the benefit of myself or my corporation.” The court also found that Kayden had made payments towards the purchase price of the property. The court nonetheless concluded that Kayden was not entitled to one-half of the proceeds from the sale of the property by Verkins’ estate. This was error. Where the owner of property properly declares himself trustee of the property upon a trust which fails, and he receives from another consideration for the declaration of trust as an agreed exchange, there is a resulting trust in favor of the person who paid the consideration. Restatement (Second) of Trusts § 425 (1959). See also Smith v. Pratt, 95 N.H. 337, 63 A.2d 237 (1949). Accordingly, the judgment below is reversed and the cause is remanded for entry of judgment for Kayden.

REVERSED and REMANDED.

COWART and GOSHORN, JJ., concur.