| New York Court of Chancery | Dec 22, 1906
The motion against the entire bill will alone be considered, as it is manifest that no relief can be granted under this bill. Under rule 213 this motion will'be treated as essentially a demurrer to the bill. Ireland v. Kelly, 60 N. J. Eq. (15 Dick.)
The allegations of the hill are clearly insufficient to establish a resulting trust. When a deed of conveyance is executed and delivered, the intention that the grantee is not to enjoy the beneficial estate, but that a trust is to result must appear expressly or by implication from the terms of the deed, and no extrinsic evidence of the grantor’s intention is admissible unless fraud or mistake is averred. If the deed recites a pecuniary consideration, though only nominal, that recitation raises a conclusive presumption of an intention that the grantee is to take the beneficial estate, and destroys the possibility of a trust resulting to the grantor, and no extrinsic evidence will be admitted to show that there was, in fact, no consideration, unless fraud or mistake is shown. Osborn v. Osborn, 29 N. J. Eq. (2 Stew.) 385; Stucky v. Stucky, 30 N. J. Eq. (3 Stew.) 546, 554; Coffey v. Sullivan, 63 N. J. Eq. (18 Dick.) 296, 303; Fretz v. Roth, 68 N. J. Eq. (2 Robb.) 516, 527; 3 Pom. Eq. Jur. § 1036.
It is not so certain that the allegations of the bill may not support a constructive trust, but 1 entertain the view that the mere facts that the conveyance was from a father to a daughter, and that the father retained possession of the property conveyed and received its revenues and made improvements, standing alone, and without any averment of fraud or mistake through undue influence or want of appreciation upon the part of the grantor as to what he was doing, or that grantor was without ample means to warrant a gift, or was without the benefit of disinterested and competent advice, or entertained a purpose contrary to that expressed in the deed, are not sufficient to raise the presumption of a constructive trust and to cast upon the grantee the burden of answering. The authorities collected in Fretz v. Roth, 68 N. J. Eq. (2 Robb.) 516 (at p. 528), to which may be added Slack v. Rees, 66 N. J. Eq. (21 Dick.) 447, and James v. Aller, 68 N. J. Eq. (2 Robb.) 666, disclose fully the various conditions which may exist to establish the presumption of a constructive trust under a conveyance similar to the one in question. The averments of the bill are not, in my opinion, sufficient for that purpose.