Forbes v. Forbes

DOOLING, J.

Defendant appeals from a judgment decreeing that defendant held certain real property in trust for plaintiff and quieting plaintiff’s title.

Stating the facts most favorably to the judgment: The parties were married in 1924 and had two minor daughters. They were divorced (an interlocutory decree of divorce having been entered in 1930 and a final decree in 1937) and defendant had remarried. Defendant remained on friendly terms with plaintiff and frequently visited at the home in which plaintiff and their daughters lived. Defendant’s brother lived in plaintiff’s home as a paying guest. In 1941 plaintiff and defendant discussed the possibility of plaintiff buying a home for herself and their daughters, and in October of that year defendant took plaintiff to look at the house which was after-wards purchased. The house contained three flats and was priced at $4,100. Defendant told plaintiff that at least $1,000 was needed for a down payment. The brother-in-law promised to lend plaintiff $450 and plaintiff gave defendant $100, $50 of which was lent to her by her brother-in-law, to be used as a

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deposit on the purchase. Plaintiff later withdrew $300 from a bank account, in her name as trustee for one of the daughters, and gave $250 of that amount to defendant. The brother-in-law lent her the additional $400 which he had promised and she delivered that sum to defendant. Finally the parties surrendered certain life insurance policies, three on her life and one on his, and received a total of $636 therefor, which sum was also delivered to defendant. Of this sum of $636, $98 was the surrender value of the policy on defendant’s life and the balance of $538 accrued from the plaintiff’s policies. Defendant told plaintiff that with the money so delivered to him he would make the down payment on the property and buy it for her. Without the knowledge of plaintiff defendant took title in his own name, executing a note and mortgage in the principal sum of $3,000 to secure the balance of the purchase price.

After the purchase plaintiff and her daughters moved into one of the flats. Plaintiff collected all of the rents from the other two flats, and paid taxes, installments on the mortgage and other expenses of the property therefrom. Defendant gave plaintiff a statement, in his own handwriting, showing a total amount of $1,389.33 received and $1,341.67 paid out in connection with the purchase. The discrepancy of $3.33 between the total of the amounts testified to have been delivered by plaintiff to defendant and the amount shown on the statement was not explained. Presumably the total surrender value of the policies was $639.33, rather than $636.