Palmer v. Burnham

NOURSE, P. J.

Plaintiff sued to impress a trust upon real property. The trial court held that the property was the separate property of the decedent Elizabeth Gibbs and that plaintiff had no interest therein other than as devisee under Mrs. Gibbs’ will by which he and Mrs. Burnham each took an undivided one-half interest. In his appeal from the judg

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ment the plaintiff attacks the conclusions of law only. He makes no attack upon the findings of fact, and states that there is no conflict in the evidence.

The ease is founded on the theory that plaintiff and Elizabeth Gibbs opened a joint tenancy bank account through which the property was purchased, title having been taken in the name of Elizabeth Gibbs, and that she therefore held the property in trust. The trial court found from the evidence that all the material allegations of plaintiff’s complaint were untrue. The evidence supporting these findings may be stated briefly. Plaintiff was the brother of Mrs. Gibbs and of the defendant Mrs. Burnham. He was a seafaring man who made his home with Mrs. Gibbs. In January, 1926, he and Mrs. Gibbs opened a joint tenancy bank account with a deposit of approximately $880. In February, 1926, Mrs. Gibbs initiated the purchase of the lot in question by paying $700 by check drawn on one joint tenancy account and $300 on another. At the same time Mrs. Burnham paid $500 from her own funds. In December, 1926, Mrs. Burnham advanced $1,921 which Mrs. Gibbs used to make a payment of $3,000 on the property. In May, 1929, Mrs. Burnham advanced the balance of $2,200. Her contributions were thus approximately $4,600, those of the joint tenancy account possibly $700, while Mrs. Gibbs contributed the balance. It is not possible to state what amount plaintiff contributed because his testimony on that issue was more than evasive. The trial court rejected it in whole or in part and found that it was not true, as alleged in his complaint, that he contributed $750 of the down

payment;

that it was not true that he agreed to furnish one-half of the purchase price, or to receive a one-half interest in the property or any fractional portion thereof, that it was not true that plaintiff contributed any portion of the subsequent