Decided May 1, 1951.
Where the plaintiffs provided a home and board to the legal owner of real estate in accordance with a mutual understanding that a deed would be executed by the latter granting joint use thereof for the life of such owner and a fee to the plaintiffs upon her death, neither laches nor the statute of limitation operates to bar a bill to establish a trust in the property brought within six years of the date of her death when the plaintiffs first had knowledge of her disavowal of the understanding. A resulting trust may be established by parol evidence that one person has furnished the whole or a part of the consideration for a purchase of land, the title to which was taken in the name of another. The extent of the interest to which a claimant is entitled upon the establishment of a resulting trust in his favor is not limited to the amount of money he has advanced toward the purchase price of the real estate but may include labor and materials furnished and the release of an obligation or a promise. Where the plaintiffs' testimony relative to the money they advanced toward the purchase price of certain real estate was inexact as to details but consistent with the conduct of the parties over a period of years such testimony was not incredible and worthless as a matter of law.
BILL IN EQUITY, to establish a resulting trust in certain real estate in Franklin, New Hampshire, owned by the late Emma Trumbull, hereinafter called the Calley property. The Master's report recommending a decree for the plaintiffs was approved by the Superior Court (Wheeler, J.) who allowed and transferred defendants' bill of exceptions to the findings and rulings of the Master and to the admission of certain evidence. The plaintiffs, husband and wife, are the son-in-law and a daughter of the said Emma Trumbull and the defendants are her other two daughters and grandchildren.
In 1927 Emma Trumbull purchased the Ham property for $2,800 making a down payment of $1,300 toward which the plaintiffs advanced $200, the balance of the purchase price being secured by a mortgage by Emma. The plaintiffs provided board and care for Emma on the Ham property until 1934 and in the meantime made small payments to reduce the mortgage, paid some taxes and made substantial improvements to the property. In 1928 Emma, pursuant to her previous oral agreement, executed a deed to stand seized of the Ham property to the plaintiffs. The deed provided that Emma was to have joint use of the property during her life and the plaintiffs were to own the property in fee after her death if they provided her with a suitable home and satisfactory board and care.
In 1934 Emma purchased the Calley property for $2,850 making a down payment of $1,000 and raised the balance by a mortgage of the property. The plaintiffs and Emma moved to the Calley property and the plaintiffs there continued to provide board and care for Emma and made improvements on the property until Emma died in 1939. During 1935 the plaintiffs joined Emma in a conveyance of the Ham property for $3,000. The proceeds from this sale were used by Emma to pay the balance of the mortgage on the Ham property ($800) and the mortgage on the Calley property ($1,850). The balance of the proceeds were retained by Emma.
During the twelve years that the plaintiffs lived with and cared for Emma on the Ham and Calley properties, their relations were friendly. No complaint was made by Emma to the plaintiffs during her life. The Master found that plaintiffs relied on Emma's promise to execute a covenant to stand seized of the Calley property under the same terms and conditions as were contained in the covenants relative to the Ham property. This was never done and a few days before her death Emma devised a life interest in the Calley property to her plaintiff daughter with the remainder to the defendants. The plaintiffs have continued in possession of the premises since Emma's death. Other facts appear in the opinion.
Upton, Sanders Upton (Mr. Richard F. Upton orally), for the plaintiffs.
Murchie Cofran (Mr. Cofran orally), for the defendants.
The first question is whether the plaintiffs' bill in equity, filed in 1943, is barred by laches or the statute of limitations. The Master's findings and rulings as approved by the Superior Court disallowed both contentions. "The plaintiffs were in possession of the premises at all times between the date of Mrs. Trumbull's death and the date of filing the present action, and that the defendants took no action inconsistent with the complete title in fee claimed by the plaintiffs, nor asserted any right or title in the premises until they filed an answer in the present case . . . . The plaintiffs had no reason to believe they would not ultimately receive a conveyance of a fee to the Calley premises from Mrs. Trumbull up to the time they read her will after her death, so the statute did not start to run against them until the date of Mrs. Trumbull's death, on February 1, 1939." Ordinarily in the case of a resulting trust the statute of limitations begins to run in favor of the holder of the legal title against the equitable owner at the time of the conveyance where there is no recognition of the rights of the equitable owner. Dow v. Jewell, 18 N.H. 340; 4 Bogert, Trusts and Trustees, s. 950. However it "will not become adverse to the cestui que trust until the trustee disavows the trust, or asserts some right to the property inconsistent with it, and the cestui que trust has knowledge of the disavowal or assertion, or from the circumstances ought to have learned of it." Crowley v. Crowley, 72 N.H. 241, 246. The plaintiffs had no knowledge of a disavowal by Emma of their understanding until her will was read in 1939. During her lifetime Emma recognized the plaintiffs' joint use of the property and she never made any claim or assertion inconsistent with the plaintiffs' rights in the Calley property. The finding of the Master that the plaintiffs were not barred by laches under those circumstances was warranted by the evidence and the claim was within the time limit of the statute of limitations.
R.L., c. 259, s. 16, requires that trusts concerning lands shall be in writing but specifically excepts trusts which "result by implication of law." Accordingly a resulting trust may be established by parol evidence that one person has furnished the whole or a part of the consideration for a purchase of land, the title to which was taken in the name of another. Foley v. Foley, 90 N.H. 281; 3 Scott, Trusts, s. 454.4; Restatement, Trusts, s. 454, comment j. While a resulting trust in land cannot be created by a parol agreement of the parties, evidence of the agreement is admissible to show the particular property for which the consideration was paid. 2 Bogert, Trusts and Trustees, s. 452; Converse v. Noyes, 66 N.H. 570.
The defendants contend that the plaintiffs are limited in establishing a resulting trust to the extent of the money paid by the plaintiffs. Francestown v. Deering, 41 N.H. 438, 442. The consideration paid in the case of a resulting trust is not limited to money but may include labor, materials, the release of an obligation or a promise. Shelley v. Landry, 97 N.H. 27; Crowley v. Crowley, 72 N.H. 241, 244. The money advanced by the plaintiffs, their labor in caring for Emma and improving the Calley property and the transfer of their interests under the deed to stand seized in respect to the Ham property, all in pursuance of the understanding of the parties at the time of the purchase, was sufficient consideration to give rise to a resulting trust of a remainder in fee in their favor in the Calley property. Hallett v. Parker, 68 N.H. 598; Shelley v. Landry, supra.
Skillful cross-examination of the plaintiffs by defendants' attorney disclosed some uncertainty as to the exact amount of money that was contributed by the plaintiffs as well as the time and method of payment. The testimony that money was paid was considered convincing by the Master even though the exact method, amount and time of the payments were not. Since this testimony was consistent with the conduct of the parties over a period of several years, we cannot say that it was incredible and worthless as a matter of law. Chabot v. Shiner, 95 N.H. 252.
An examination of the record shows that the findings of the Master were warranted by the evidence and the trial was free from any error of law. In view of the result reached it is unnecessary to consider whether the findings and rulings could be supported by some other theory of law. See Restatement, Restitution, s. 182.