262 Mass. 294 | Mass. | 1928
The plaintiff, during the life of his first wife, bought two parcels of improved real property, taking title to one parcel in his own name and to the second parcel in the name of himself and of his wife Alice Geddis as tenants in common. She died intestate August 31, 1915. The defendants were the only children of the marriage, and on November 11, 1915, at the plaintiff’s request they conveyed to him all the right, title and interest they inherited from their mother. The plaintiff at the time of the conveyance stated that he did not intend to remarry and would make a will so that his children should have all of his property. But on January 16, 1919, in contemplation of a second marriage, he voluntarily, as the trial judge could find on the evidence, conveyed the property to the defendant Elizabeth J. Congdon, his daughter, as trustee, by deeds in the form prescribed by St. 1912, c. 502, §§ 2, 14, 15, which were duly recorded by her in the registry of deeds on January 17, 1919. The plaintiff on June 1, 1920, had a declaration of trust prepared which the grantee was to execute, and it was transmitted and received by her. The testimony of the grantee shows that she in good faith accepted the deed with the understanding between her and her father that the property thus conveyed was not a gift, but was to be held for his benefit, and upon his death she was to divide it equally with her brothers and sisters or their heirs. The grantee however objected to the terms of the declaration because of the provision that “In the event of the marriage of the said George C. Geddis, and providing that his wife is living with him at the time of his decease, she shall receive one-third part of said premises,” and correspondence followed between counsel for the grantee and counsel for the plaintiff. It was claimed by the grantee that, in the oral discussions with his children preceding the creation of the trust, there was no agreement that, if the plaintiff married, his wife, if she survived him, should share in the distribution of the estate.
The purposes for which the trust was created, although not expressed in the deed to the trustee, could be proved
It is manifest that the recorded declaration of trust imposed upon the plaintiff a greater expenditure than the burden which he purposed to assume. But the defendant Congdon testified that the declaration of trust as recorded was in conformity with the agreement as she understood it, and, the trial judge having found on the evidence that this was the general understanding and agreement of the parties, we cannot find on the record that his conclusion was plainly wrong. While the plaintiff prays for cancellation of the deed and a reconveyance of the property, he is bound by the
Ordered accordingly.