*1 Plaintiff, PARKS, Respondent Henry S. Cross-Appellant,
v. BANK, NATIONAL indi- FIRST ZIONS vidually as Executor of the Estate Parks, deceased, Inter- M.
of Lucile Care, Primary Inc. mountain Health dba Center, Joseph J. Medical Children’s Taylor, Jr., Defendants, Appellants and
Cross-Respondents.
No. 18580. of Utah. Supreme Court 22, 1983. Sept. *2 Snow, Emery,
John A. Michael N. Salt Lake City, appellant. Thornley, Ogden,
Richard H. for respon- dent.
HALL, Chief Justice: appeal a judgment imposing Defendants personal a constructive trust and real included in the of Lucile estate M. following six They points: Parks. raise (1) the is to support evidence insufficient trust; imposition (2) of a constructive fact findings comply do not Procedure; 52(a), Rule Rules Utah of Civil (3) supported by the award is not the evi- findings dence or the and conclusions court; (4) trial the evidence is insufficient concerning to support findings purchase (5) property; plaintiff estopped raising ownership; (6) from his claim of and waived his claim ownership. has Henry Parks, Plaintiff was born S. who 17, 1909, Parks, and Lucile M. February who was November were born 1, 1927, were September married hus- at the the death band and wife time of Lucile M. on Parks October Their congenial marriage was described as happy.
During marriage, plaintiff was con- A That putting out feed for tur- until tinuously gainfully employed Sep- keys, repairing equipment, building tember, 1974, time at which he retired from See, equipment. as we were progressing position (Me- Chief Chemical flock, in the size of our the flock required chanical) Engineering and Base Section more and more equipment and the re- *3 at Hill Consulting Engineer Air Force Base. sponsibilities acquired increased. As we Plaintiff testified that his retirement was property, our response my re- —or by incapacitating necessitated illness of sponsibility for the maintenance and so Mrs. Parks. on increased. Q you When did eat supper? Parks, hand,
Mrs. on the other was not employed regular during on a basis A I never ate supper before —I can’t time marriage. marriage recall, At the life, ever my ever in eating supper thereafter, for approximately four months before 10:00 at night.
she worked for the telephone company. She later worked at the Plantation Inn and Q 10:00, And then after your meal at Ambassador Club Restaurants approxi- you went out with turkeys? mately six months while plaintiff was in A Yes. the military service. After the conclusion Q For how long? of her restaurant employment, in Novem- Well, A that would be from then until ber, 1932, Mrs. again gain- Parks was never I arose the next morning. fully employed outside of the home. She brothers, Mrs. Parks’ George and Burgess did, however, conduct business from time to Colemere, testified that Mrs. Parks was the mother, Colemere, time with her Elizabeth money and manager business of the Parks who was described as a business woman. family. She did all the banking, kept the In Henry and Lucile Parks moved records, paid family expenses signed to a small farm located on 9400 South the checks. It was also shown that Henry Street Lake City, Salt where they com- and Lucile joint Parks had a checking raising menced and selling turkeys. They account. developed also an orchard on the farm and During their years marriage, the Parks sold the Although fruit. gener- income acquired pieces various of real property, all by ated this family operation was very mea- of which are located in Lake County. Salt ger, the required labor of both plaintiff and death, At the time of her the title to each of his wife to maintain it was substantial. properties these was vested in Mrs. Parks During time this farm was in opera- alone. The evidence concerning acquisi- tion, plaintiff continued to work on a full- tion parcel different, of each and each time basis at his outside employment. He parcel will hereafter be separate- discussed described a typical workday as follows: ly- I get up a.m., would at 4:30 do a few 1. 21st Property South chores, get ready to leave the house at
6:00, The 21st property South consisted of ten go Ogden aby carpool, arrived at 7:14, different lots situated at shift, worked a and 1431 normal 8-hour came back, East 2100 make South. These lots were my rounds of the obtained 21st South separate four property, lawns, water, conveyances. take care of the mow, whatever, or and arrive back at the The first conveyance consisted of four farm, probably 7:00 at night. lots, which were described as Lots 38 to 41. Upon arriving farm, back at the The only evidence concerning acquisi- testified that he typically did the following: tion title to these lots is a deed from Salt
Q Now, I want to Lake go County 4, 1940, over that a little dated March which more. get You home at night quitclaims and what these lots to Lucile M. Parks. you do, do say, from 6:00 Although to 10:00 in the the deed itself recites a considera- evening? tion purchase lots, $352.72 redemption a tax sale certificate attached 3. 9800 Property South only deed record indicates that A warranty deed was executed on this actually paid, and that such $156.72 Colemere, property by Elizabeth as grantor, payment was made Mrs. Parks. It is in favor of Lucile Parks 1962. Mr. Parks noted that Mrs. Parks was not employed at testified that he was unaware that this payment. the time she made this conveyance had occurred until Mrs. Parks’ read, then, Mr. Parks testified that he later con- will was he was under the fourplex structed a on Lots 38 impression which had been in- generated rental income over the years. testified, herited his wife. He further however, that he later found out that this The second conveyance occurred on De- purchased, had been and that the cember 1945. A warranty convey- deed family’s only sources of income at that time ing Lots 42 and 43 was executed by O.P. were salary and the rents from the Hendricksen, Hendricksen and Kemilla *4 as investment properties. grantors, in favor of Henry S. Parks and Parks, Lucile M. grantees. as Mr. Parks respect With to the purchase prop- of this testified that he personally paid approxi- erty, Burgess (Mrs. Colemere Parks’ broth- mately cash for purchase. this $700 er) mother, testified that his Elizabeth Co- lemere, had owned parcel a 100-acre A second warranty deed Lots conveying land, which included the 9800 South proper- 42 and 43 was executed in 1963by Henry S. ty, and that she conveyed acres to each Parks, grantor, Parks, as in favor of Lucile of her four children. The 9800 prop- South grantee. as There is no evidence in the erty constituted Lucile’s 25-acre portion. record as to Mr. why Parks made this con- He further testified that each of the chil- veyance. dren was pay approximately $100 $200 Lots 46 purchased and 47 were on Decem- per month for his or her 25-acre parcel, but 28, 1945, ber by tax deed from Salt Lake that Lucile payments. had not made her County $300, naming sum of Mrs. 4. Lincoln Property Street Parks as the sole grantee. Again it is noted that Mrs. Parks was not gainfully employed Record title to the Lincoln proper- Street or anytime after while tyMr. was by evidenced an executor’s deed Parks was employed full-time. 27, 1968, dated by November executed Colemere, George Burgess co-executors The only evidence concerning acquisi- of the estate of Elizabeth Rogers, Colemere lots, tion of the final two Lots 48 and in favor of Lucile Parks. a warranty 9, 1946, deed dated March exe- by cuted “E. Rogers,” grantor, as in favor Although pay- executor’s deed recites of Lucile Parks. Rogers, $17,700 E. also known as ment of property, Burgess for this Rogers, Elizabeth Elizabeth Colemere Rog- Colemere testified that was nothing actual- ers and Colemere, Elizabeth was Mrs. ly paid by Lucile Parks. According to Mr. Parks’ mother. Colemere, Mrs. Parks was awarded a credit by her mother’s estate in the amount of 2.33rd South Property $7,142.62 for improvements that she and respect With to the 33rd property, South her (plaintiff) husband had made on the only evidence concerning the title to the property living while thereon. As to the is a warranty deed dated June remaining amount the purchase price, 1959, and executed W.H. Florence in Mrs. Colemere testified that such amount Parks, favor of grantee. Mrs. as It was was deducted from Lucile’s share of her shown, however, also that mortgages had mother’s estate. been placed upon this property in the names 5. 9400 Property South (Mr. Parks) both and Mrs. Parks, and that the mortgage money had The 9400 consists South of two been used to fourplexes construct two on parcels, parcels which are identified as H the same property. H, and I. consisting Parcel of 4.83 net
acres, Mrs. was inherited Parks from her and the paid remainder to Primary Chil- mother, I, parcel while which consists of dren’s Medical Center. acres, approximately 20 was purchased respect personal With property, from Mrs. Parks’ mother. Parcel I will declares that the household furniture known as the family farm and was the personal and miscellaneous property belong Parks’ residence from 1943 until the death plaintiff, having purchased by been him of Mrs. Parks in 1974. However, separate his own funds. The purchase parcel I was evidenced one approximately month after the execu- a uniform real estate contract dated will, tion of the Mrs. Parks executed a 5, 1943, Colemere, June executed by E. as codicil thereto declaring that all household seller, Henry Parks, Parks and Lucile furniture and personal prop- miscellaneous buyers. The contract pur- indicated a books, erty, including carpets, pictures and $3,000. price chase The property (parcel hers, musical instruments were and that I) (1951) was later conveyed by warranty plaintiff had the right to use such property deed from E. Colemere to Lucile Parks as during his lifetime. sole grantee. will, At the time of the review of the Within a week after Lucile Parks’ funeral plaintiff was grieving ap- his wife and services, plaintiff contacted attorney Grant parently approxi- continued to do so for Macfarlane, Sr., inquired whether Mrs. sister-in-law, mately years. two His LaRue Parks had executed a will. Mr. Macfarlane Colemere, testified he was in a state of *5 plaintiff told that he had drawn a will for shock and “seemed like a man that was Mrs. Parks some two or three years prior, ” brother-in-law, dazed .... His George and that the will was being kept at Zions Colemere, testified that plaintiff “[c]ame First Thereafter, National Bank. plaintiff ” close to a breakdown ....
went Bank, to Zions where he met with Mr. Macfarlane, and Jay Jeppson Troy and Plaintiff’s of his recollection condition is Thornton of the Zions Bank Trust Depart- as follows: “I think I reacted much in the ment, and read the will. manner a I zombie. didn’t know what
The Parks, going will of Lucile on or how to raise any dated verbal November 17, 1971, provides testified, that all statements.” Plaintiff “I real had estate, her except parcel I of the very 9400 South little realization of any conse- property, should be sold and the proceeds quences.” from such sale held in trust by Zions Bank. Macfarlane, As noted previously, Grant trustee, As Zions hold, Bank was directed to Sr., was the first attorney contacted manage and distribute such funds in accord- plaintiff after the death of his wife. Mr. ance with the provisions of the will. The Macfarlane arranged reading will also provided that plaintiff re- was to Bank, will at Zions but did not offer tain a life estate in the farmhouse used legal fact, advice with respect thereto. In himself and Mrs. residence, Parks as their he later appeared as the attorney for the and, at the Bank, discretion of Zions Mr. (Zions Bank) executor of the estate. Parks was provided to be with support in an Colemere, sister-in-law, LaRue amount not exceeding a month and $200 husband, testified that she and her George
financial assistance in the event of illness or Colemere, suggested that plaintiff see an However, emergency. all of the benefits attorney finally took him to provided attorney plaintiff to under the will would Sam Bernstein. Plaintiff terminate testified that Mr. remarried, and, if he as to the estate, life Bernstein read the such will and told him that he would also he terminate if failed to occupy get could half of the estate year. farmhouse for one without even Upon court, going death or to but that he remarriage plaintiff, would have to the will not, however, dictated that a sum act exceeding quickly. not Plaintiff did re- $10,000 was to be paid Joseph to J. Taylor, turn to Mr. Bernstein. $40,000 January
In retained Leo turn to the estate of per year which against Jardine to handle his claim his de- it would not otherwise have realized. estate. ceased wife’s Mr. Jardine advised Plaintiff remained at the Lakeline Drive him that he would take care of the matter. March, residence until 1977. He thereafter He later prepared plaintiff sign and had an moved to a condominium at Road Canyon objection to for petition amendment of Towers, Unit The petition for such testament, last will and but failed to file again move was prepared by representa- anything the document or do further in the tives of Zions Bank Primary Children’s case. Medical Center. It was indicated petition that the residence on Lakeline November, 1977, In plaintiff went to a $100,- Drive could be sold for approximately Stott, attorney, third David about the es- 000 and the condominium unit could be tate. Plaintiff was concerned at that time $72,250, purchased and that the differ- with petition he had received to close the invested, ence could resulting be in an estate. Mr. wrote a letter to Stott Zions $8,000 per year return estate which discussing plaintiff’s rights Bank under the would not otherwise be realized.1 will, gave the bank ten days respond. Because Mr. gave Stott bank an exten- 3,1977, On December plaintiff remarried. sion on the ten-day period respond to the thereafter, Shortly his re- discovering letter, plaintiff terminated Mr. Stott and marriage, Zions Bank discontinued the $500 engaged the attorneys presently appearing check, per support pursuant month in this matter on his behalf. clause conditioning support will such upon plaintiff’s remaining unmarried. This December, 1975, In it was discovered that was, however, monthly allowance reinstated Mrs. Parks’ will did not conform to the Tax by stipulation during trial. Reform Act of and that as a conse- quence, beginning inventory the estate was in the Lucile going to incur a $839,- Parks gross substantial tax In estate listed the estate at liability. an effort 159.43. At the time the for final Macfarlane, petition reduce such Mr. liability, acting filed, executor, settlement and distribution was Bank, on behalf of the Zions con- *6 $344,394.54, making estate had earned a plaintiff agree vinced to an amendment $1,183,553.97 gross estate of before estate of the trust to increase monthly expenses and deductions. At the time of $500, allowance from and to relin- $200 trial, all real estate inventoried in estate quish the health and accident support provi- sold and the es- had been executor sion. $920,500. tate assets at time were above, As noted provided plain- the will response Plaintiff initiated this action in tiff a farmhouse, life estate in the long so petition to close the estate filed as he did not move out for longer than one Bank, executor, Zions on November year, remarry. and did not In April, objection Plaintiff filed an plaintiff decided to move from the farm to probate proceeding complaint and filed the a house on Lakeline Drive in Lake Salt oral, an proceeding seeking impose in this City. Plaintiff went to Mr. Thornton of resulting or constructive trust in his favor Zions requested Bank and the move. The furnishings on certain household and on the court was petitioned and an order was en- set forth real above. approving tered the move. petition The indicated that the Lakeline prop- Drive residence The lower court the real found that $95,000 trust, purchased could be for and the erty was to a constructive farmhouse and farm in ap- judgment plaintiff could be sold for awarded favor $600,000, $175,000. proximately making Additionally, an annual re- the sum of yon 1. Plaintiff later moved from Unit 415 to Unit Road Towers. complex, 709 of the same condominium Can fee title (1) court awarded to the con- Where the owner of an interest dominium in which he was then land transfers it inter vivos to another in residing. transferor, trust for the but no memoran- seek a Appellants herein reversal of the evidencing dum properly intention to alternative, trial judgment, court’s or in the signed, create a trust is as required by a new cross-appeals, trial. Plaintiff seeking Frauds, and the transferee Statute an damage increase in the award and a trust, perform refuses to the trans- finding of an oral trust. upon feree holds the interest a construc-
transferor, tive trust for the if
I. (b) the transferee at the time of the point first appeal defendants raise on transfer was in a confidential relation is that there is no evidence in the record to to the transferor.... justify the trial imposition court’s aof con- structive trust the estate of Lucile They
Parks. argue that the circumstances Defendants further contend that under or elements which must be present in order certain conditions the requisite promise or to justify imposing such a trust are a “con- agreement between the transferor fidential relationship” between a transferor transferee need not be expressly stated at and transferee of property and a conveyance. breach the time of cite They Jensen,5 transferee implicit of an “oral or Haws v. wherein agree- this Court af- ment” to imposition hold the firmed the of a constructive trust for the despite trust the lack of express promise, transferor. an and explained its decision by quoting the The purported authority for defendants’ following passage from a New York Court argument regarding constructive trusts is of Appeals “Though promise decision: a the case of Nielson v. Rasmussen.2 In Niel- transaction, words was lacking, whole son, this Court affirmed the trial court’s found, might be was ‘instinct with an obli- decisionnot to impose a trust and made the gation’ imperfectly expressed.”6 Based following statement regard to the cir- authorities, upon these defendants draw the cumstances under which a constructive that, universally, conclusion courts require trust could be imposed: oral, an or at least implicit, agreement and The “certain circumstances” which the a they breach thereof before will impose trial court ... would have had to find constructive trust. were that the defendants at the time of Defendants point single out that not one the transfer of property to them by plain- witness testified to conversation where- tiffs ... orally agreed to hold said lots in Mrs. Parks promised or agreed hold for Rasmussens and were [beneficiaries] *7 subject parcels of in a confidential relationship to the plain- plaintiff. Furthermore, trust for defend- tiffs.3 [Emphasis added.] argue ants that not one witness testified to The Court further noted in Nielson that any conversations wherein plaintiff and his these “certain circumstances” must be wife made any statement which would indi- shown to exist by “clear and convincing cate that either of them recognized that evidence.”4 Mrs. subject Parks took said to an obligation to hold it in trust for plaintiff.
As additional support for this argument,
defendants cite
44 of the Restatement
§
argue
Defendants
that not only does the
(Second) Trusts,
of
which states:
evidence fail to demonstrate a promise or
Utah,
(1976).
2.
212,
(1949).
According statement, to this unless an “ex- *8 press established, trust” has been Inasmuch as the basis of claim or at least asserted, as the basis of entitlement of entitlement to the four lots was an unen- Estate, 273, 7. Witmer v. Brosius’ 184 Kan. 336 9. Restatement of Restitution 160 § comment a 455, (1959). (1937). P.2d 460 Hull, 39, (Second) 8. Fitz-Gerald v. 10. Restatement 150 Tex. 237 S.W.2d of Trusts 44 com- § (1951). ment a trust,11 held, forceable this Court citing case, Nielson and as occurs in most cases (Second) 45 of the Restatement of Trusts § wherein 44 and 45 of the Restatement §§ (“Effect of Failure of Oral Trust for a (Second) of Trusts are applied. The trial Person”),12 Third that the intended express rejected court his claims based on theories imposed trust could be as a constructive trusts, of oral resulting but found suffi- upon proof agreement trust of an oral and a support cient evidence to his claim based on relationship. confidential the theory of constructive trusts. type of constructive trust described In rejecting plaintiff’s claim that a re- species express above is a trust out of sulting trust applied, should be the trial which it arises. It therefore inherits cer- court commented: resulting trust does “[A] tain fundamental characteristics of the ex- not result merely because the puts husband press trust, one of which is “intention.” An up money the to purchase property in his express generally trust is described as “a wife’s name.” This statement appar- fiduciary relationship respect prop- ently upon based the rule of law articulated erty, arising as a result of a manifestation in 442 of the (Second) Restatement § of an intention to create it and subjecting Trusts, which reads thus: the person in whom title is vested to Where a transfer of property is made to equitable duties to deal with it for the person one purchase price paid is benefit of (Emphasis added.) others.”13 by another wife, and the transferee is a type Aside from the of construc child or other object natural of bounty of above, tive trust described constructive the person by purchase whom the price is trusts generally are not upon based paid, a resulting trust does not arise un- Indeed, “intention” of the parties.14 less the latter manifests an intention that most notable distinction between construc the transferee should not have the benefi- trusts, tive trusts and other types of such as cial interest in the property. [Emphasis express trusts, resulting is generally added.] the “intention” element. rule, This like the rule referred to above It is axiomatic an ele essential governing imposition of an oral express ment any agreement is the “intention” to trust, requires a intent,” “manifestation of create it. Accordingly, those constructive i.e., intent to retain the beneficial interest trusts may which arise without proof of the in the property. The trial court apparently parties’ “intention” to create a trust cannot concluded that the element of intent neces- and do require, not as defendants propose, sary give rise to a resulting trust was that some agreement form of be manifest absent. ed. While we acknowledge
In that the present case, resulting plaintiffs claim trust against theory set forth in supra, deceased wife’s estate was based § oral, commonly applied theories of under resulting and con- circumstances as words, structive presented (i.e., trusts. In other herein he was where a pays husband not relying solely upon the oral express purchase price for real property and trust theory, as did plaintiffs places the title thereto in either his wife’s express 11. The beneficiary trust was light unenforceable be- In thereof. of the similarities cause there was no written sections, memorandum evi- previous between the two discus- dencing it, required the intention to create regarding wholly pertinent sion Section 44 is by the Statute of Frauds. Section 45. Nielson, applied 12. Section 45 was rather Scott, 13. 5 A. The Law of Trusts 462.1 than Section because Section 45 deals with supra See also n. 9. beneficiaries, third-party party holding and the equitable (the Nieison interest Rasmus- Hock, supra Id. See also Matter of Estate of sens) party. although was a third Section very substance, n. at 1114. applies similar to Section 45 in alleged where the settlor of the trust is also the
599 plain- or in both his and his wife’s case of Yohe v. Yohe20 where the solely,15 name we are not aware of jointly16), conveyed name tiff/husband had his one-half in- discourage law that would inhibit or (which rule of terest in the residence family had wife, of the constructive trust application the both to his purchased by spouses) been advanced in 160 of the Restate- theory Pennsylvania Supreme § the Court considered ment of Restitution under such circum- both the 160 and 442 trust theories and § § stances. a 160 trust determined that constructive § appropriate remedy. was the most In both the presents possible Section 160 broadest cases, the Pennsylvania these courts con- a It application pro- of constructive trust. applied provisions sidered and the of 160 § may vides that a constructive trust arise under circumstances described in 442. § person holding “where a title to equitable duty convey to an it to jurisdiction apply Yet another 160 § another on the that he would be ground the specific posed under circumstances if unjustly permitted enriched he were 442 is Delaware. In a recent deci- very § it retain ....”17 Such breadth has also sion, Jankouskas,21 v. Adams the Delaware been described as follows: held that it Supreme appropri- Court trusts include those in-
Constructive
all
ate,
only
apply
not
both theories under
stances in which a trust is
the
raised
circumstances, but to actually impose-
such
equity
purpose
doctrines of
of
trusts,
course,
types
provided,
both
of
the
working
justice
out
in the most efficient
proven.
elements of such trusts were
manner, where there is no intention of
re-
factual situation
the Adams case is
relation,
parties
to create such a
similar
to the
case.
markably
present
in most cases
contrary
intention
There,
here, the
and labors of a
toils
title,
holding
legal
the one
and where
wife over the
of their
husband and
course
express
implied,
there is no
or
written or
in the
a
marriage resulted
accumulation of
verbal, declaration of the trust.18
wife,
substantial estate. The
who was con-
spouse, managed
sidered the dominant
pronouncements
Pennsylva-
The recent
financial affairs. As a result of her man-
nia courts are
on the
particularly apt
ques-
proper-
most of the accumulated
agement,
tion of whether
may
applicable
160
be
§
ties and assets were held in her name.
under circumstances outlined in
442. In
§
death,
discovered,
her
it was
much to
Upon
Kohr,19
Kohr v.
under circumstances some-
that she had devised
surprise,
her husband’s
now,
what similar to those before us
of the estate to a niece and
majority
Superior
Pennsylvania, applying
Court of
years
left little to her husband.
two
Some
442,
resulting
held that a
trust
not
could
§
death,
suit to
brought
after her
the husband
imposed
be
because no “intent to retain a
trust im-
resulting
have a constructive or
beneficial interest” had been shown. The
his share
the estate. The
posed upon
court then resorted to
160 construc-
§
a
However,
granted
request, imposing
lower court
tive trust
theory.
constructive
trust
what
resulting
constructive
imposed
trust was not
that case for the
determined
to be the husband’s share
prove
reason that
failed to
estate,
appeal
“unjust
subsequent
enrichment” to the transferee of
and on
estate,
disputed
the deceased wife’s
property. Similarly,
brought by
345,
Co.,
Cercone,
Wash.App.
15. See Anderson v.
54 Utah
180
v.
Investment
30
Huber
Coast
Scanlon,
804,
(1919);
(1981).
P. 586
Scanlon v.
6 I11.2d
638
609
P.2d
(1955).
they now misapplied court has proven facts or made findings clearly against weight In light foregoing authority, of the of the evidence.23 well as the inherent broad of the scope trust, 160 constructive we conclude that § The evidence clearly plaintiff shows that the facts and circumstances of the instant was gainfully employed throughout the en- case warrant application provision of the tire marriage, course of the and that Mrs. question 160. The remaining is whether § Parks was only employed period for a brief the record contains clear convincing and (approximately ten months). It shows that satisfy evidence to even the require- broad at the time subject each of the properties ments of 160 for the imposition of a was acquired, plaintiff was employed constructive trust. income, had a substantial while Mrs. Parks had no outside employment separate or in-
The evidence clearly shows that the title come. It plaintiff’s further shows that in- subject parcels each of the of property come and individual responsible labor were was in the name of Mrs. Parks alone. The for improvements made on of the many question as to (her whether Mrs. Parks es- properties, as well as the maintenance of tate) “unjustly would be enriched” re- the properties. taining sole ownership of these properties depends upon plaintiff whether actually This evidence clearly adequately “equitable had an interest” in such proper- supports the trial court’s finding plain ties. earnings tiff’s labors and were responsible
With respect question acquisition of a substantial portion “equitable interest” in the properties, the marital estate. It is therefore appro trial priate court found that during marriage conclude that had an plaintiff Parks, Mr. and “equitable subject Mrs. Mr. Parks interest” in the (plaintiff) property, “was and that the total continuously employed and a substan- inclusion of such property part tial in the estate of acquired marital estate was Mrs. Parks constituted an from his earnings.” “unjust enrichment” contend, Defendants of her estate. Accord however, that we finding supported ingly, this is not hold that the trial court’s imposi by the tion They evidence. of a constructive trust upon contend that the estate evidence shows of Mrs. plaintiff justified, had no Parks was at least as to part the acquisition that portion or ownership representing plaintiff’s proven property and that Mrs. interest therein. Parks alone ac- quired and owned it all. They conclude II.
that inasmuch as the property was exclu-
sively
Parks,
owned by
Mrs.
had no
Defendants next contend that
the trial
“equitable
therein,
interest”
findings
therefore
court’s
of fact do not comply with
Id. at 153.
Eleganti,
quoting
Olivero v.
23. 209 P.2d at
See also
61 Utah
214 P.
findings respect to the issues delineat ed under this 52(a) requires particular point Rule that a trial are not as full complete desired, and as might they be do specially court find facts in all actions tried ascertain the ultimate facts and sufficiently the jury. facts without a find Such conform to the pleadings and the evidence ings of fact must “mind clearly indicate the the supporting judgment. court,”24 of the and must resolve all issues of material fact the necessary justify As noted above in our discussion of con- conclusions of law judgment trusts, entered structive the findings trial court’s Furthermore, thereon.25 that the title to the property failure of a trial had been held Parks, solely by Mrs. that plaintiff had court to enter adequate findings requires worked continuously during marriage the judgment to be vacated26 and that a part substantial of the marital allege Defendants the trial court’s estate had acquired been with his efforts findings of fact do not address of the and earnings adequately established the ele- issues germane to the causes of action and necessary justify ments the imposition of defenses raised in the pleadings. Specif- a constructive trust. ically, they allege findings that no were It is true that the findings do not respect made with elements of a specifically negative allegations defendants’ trust, further, constructive that none of estoppel and waiver. compli Substantial were entered regarding defendants’ affirm- not, ance 52(a) however, with Rule does ative estoppel (Ad- defenses of and waiver. require negative that the trial court every ditional deficiencies in the trial find- court’s allegation contained in pleadings; rath ings of fact and conclusions of law are er, if, the Rule is satisfied from the findings alleged under subsequent points ap- (the court) makes, it trial there can be no peal.) reasonable inference other than that In addition to the rules set forth above must have found against allegations.28 such regarding sufficiency of the trial court’s view, In our findings clearly herein fact, findings of this Court has observed: infer the trial allega court’s denial of these tions. The importance of complete, accurate findings consistent of fact in a case III.
tried a judge is essential to the resolu- Next, that, argue defendants even assum- dispute tion of under the rule of proper ing properly a constructive trust was im- law. To that end the findings should be posed, proceeding judg- the award from the sufficiently detailed and enough include ment was not supported by the evidence or subsidiary facts to disclose the steps by findings and conclusions. which the ultimate conclusion on each factual issue was reached.27 Defendants allege they occupy [Citations “gratuitous status of a transferee”29 with omitted.] K.D.S., Utah, 9, Kirkman, 487, 24. State ex rel. 578 P.2d 11 28. Patton v. 109 Utah 167 P.2d (1978). 282, (1946). 283 Bank, Utah, 25. Romrell v. Zions First National “gratuitous 29. A transferee” is defined 392, (1980); Boyer Company 611 P.2d 394-95 (1937) Restatement of Restitution 204 as one Utah, Lignell, (1977). v. 567 P.2d 1113 property who “receives the title to of which Utah, Baugh, 26. Kinkella v. 660 P.2d 236 another has the beneficial interest without no- (1983); County Anderson v. Utah paying Board of tice of the other’s interest but without ” Com’rs, Utah, 589 P.2d value .... Dalton, Utah, 27. Rucker v. 598 P.2d subject to the the con-
respect property propriety damages award that, challenged case He They allege by plaintiff. structive trust. further this is also that, have already given inasmuch as sold real contends size of the estate they estate, originally ($920,500), substantially included in be award should them, recovery against pur- closely the measure of increased to more reflect his contri- trust, to the suant constructive deter- to the marital estate. bution mined as follows: is that Parks her- position Plaintiff’s Mrs. Where a receives the title to person defendants, self, not the whose party is the property of which another has the benefi- status, with respect *12 cial interest without notice of the other’s trust, is to the to the constructive relevant value, paying interest but without and He contends liability. determination of being still such exchanges without notice Parks, un- original that Mrs. as the trustee it for other he is a property, duty under trust, der the constructive dis- wrongfully either of her posed property through the trust (a) the which property to surrender he thereby will in- (secret) undisclosed and or, acquired exchange, option, in at his liability curred a wrongdoer.” as “conscious
(b) points the pay property major the value of the Plaintiff out that distinc- received, which originally prop- he tion between this classification and the clas- acquired erty exchange which he in sification to which be- allegedly defendants to an lien being subject equitable for long (“gratuitous transferee”) is that a payment.30 such liable, is wrongdoer” only “conscious not for of the property wrongfully value trans- further, And ferred, but also for the value of whatever is ... liable to the [The transferee] are a profits realized as result of such trans- extent, only claimant to the but to the fer. extent, he is to which enriched unjustly at the of the If expense claimant. We in agreement are with ... makes a he profit, can [transferee] position insofar as it classifies Mrs. Parks as loss, keep the if he profit; incurs a he a wrongdoer” “conscious and holds her es it good.31 need not make tate accountable liable to for plaintiff and authorities, upon Based these defendants of res any profits his share realized on the suggest liability that their is limited of the constructive trust. Under the con trust, value to the Parks, structive trust Mrs. theory, as trans further, and that there must link be- be a property, feree assumed the role a tween said and the value amount awarded “constructive trustee.”32 Although her role plaintiff. as a “constructive trustee” did not entail argue
Defendants that requisite fiduciary obligations the numerous which “link” present is missing They imposed case. are trustee upon express a of an point out subjected trust, that the did that require respect she constructive trust consisted of the entire account for the equitable interest held estate, while plaintiff the amount in plaintiff beneficiary awarded Mrs. capacity.33 $175,000 was a sum of and a condominium. testamentary disposition Parks’ of the trust They argue there are findings knowledge no or with property, of her husband’s therein, conclusions even remotely explain, which a her interest constituted breach of justify or trustee, link this award to the responsibility value as constructive earn estate. Accordingly, they that the a ing wrong contend her the status of “conscious judgment should be vacated. doer.” Scott, (1937).
30. Restatement Restitution A. of Trusts 32. 5 The Law § § 31. Restatement of Restitution 204 comment 33. Id. wrongdoer” upon
A “conscious
is one who
wrongful disposition of
of another
“wrongfully disposes property
property of others.37
knowing
disposition wrongful
The record shows that the value of the
acquires
exchange
other property.”34 estate of Lucile Parks has increased sub-
presented,
Under the circumstances as here
her
stantially
petition
since
death. The
Mrs. Parks herself did not receive property
final
settlement and distribution listed
exchange
original property in the
$344,394.54,
gross income at
for a total
trust; however,
estate,
constructive
her
$1,183,553.97.
gross estate of
At the time
more
her
specifically
personal representa-
(July
1982),
stipulated
of the trial
it was
(Zions Bank/executor),
tive
who
stands
$920,-
that the net value of the estate was
position
the same
of the decedent had she
lived,35 did receive exchange
property,
foregoing
In accordance with the
reason-
well as a substantial profit therewith.
ing,
we hold that
is entitled to
of a
liability
wrongdoer”
“conscious
receive his share
profits
income and
may
beyond
extend
the mere restoration of
realized
the trust res as a result of its
the status
We
quo.
acknowledge
ap-
wrongful disposition.
proval
following
principle of law and
*13
dispositive
consider it
herein:
We also consider meritorious de
Where a
the
person by
consciouslywrong-
fendants’
link
argument
requisite
that the
ful
of the
disposition
property of another
between the value
property subject
of the
acquires
property,
person
other
the
whose to the constructive trust and the award is
property is so used is not only entitled to missing. Although the net value of the
the wrongdoer
hold
for
personally liable
$920,500,
estate
stipulated
was
at
there was
property
the value of the
dis-
wrongfully
no indication in the
as to what
findings
posed of but he is entitled as an alterna-
plain
of the net estate
portion
represented
property
tive to the
so
the
acquired.
If
tiff’s share
into account income and
(taking
so
is or
property
acquired
becomes more
thus,
above),
as indicated
there
profits
valuable than the
property used
ac-
support
was no
for the amount of the
it,
quiring
the profit
by
thus made
the
award as set forth in the conclusions.
wrongdoer
him;
cannot be retained by
light
insufficiency
In
of the
of the find-
person
the
whose property was used in
award, we
ings
respect
with
must
making
profit
the
is entitled to it.36
vacate the
remand the case
judgment and
The reasoning behind this rule has been
purpose making adequate
for the
find-
stated thus:
as to the value of
ings
plaintiff’s equitable
If, however,
wrongdoer
the
were permit-
interest in the estate.38
keep
profit,
ted to
there would be an
incentive to wrongdoing, which is re-
ÍV.
moved if he is compelled to surrender the
on
is
profit.
point
appeal
The rule which
Defendants’ fourth
compels the
wrongdoer
findings
purchase
to bear
any
concerning
losses and to sur-
any profits operates
render
property
supported by
as a deterrent
of the
are not
34.
property
Restatement of Restitution 202
§
the Lincoln Street
exceed his share of
by
the credit extended
his wife’s mother’s es-
Supra
35.
n.
any testimony against made certain testi- objection knowledge an was the equally have been within it grounds on that was “irrelevant mony ... de- of both the witness and such immaterial, self-serving declarations on and testify called to person ceased unless ... The court part of the deceased.”49 trial by thereto executor].51 [the on objection grounds overruled the those described scope application Its of has been testimony. and allowed the The dead man’s this Court as follows: for the first time on statute was raised executor, etc., sues or defends When an appeal. assets protect in an action to or recover circumstances, particular In view of these estate, party of the the other neither (above) re- the Court made statement action, person through nor the whom and further upon by plaintiff, lied observed: title, deraigns any he claims or his nor It objection will be observed that person having other a direct interest goes testimony made to the which only opposing the claim of the the exec- party might to the responsive question be utor, etc., is, in the cause an interest objection was In this which the made. action, adverse to the claims be noted that no connection should also executor, testify any can as to transaction objection interposed competen- deceased, had with the which is involved objection cy being The witness. lawsuit, in the statement nor as to overruled, the is entitled to a appellant made the deceased relative to ruling only upon review of transactions, and claims involved matters grounds pointed stated and out lawsuit, person in the unless such is called objection, irrelevancy which were and im- executor, etc.52 testify by so and “self materiality serving statements part objec- therefore, on the of the deceased.” The its Clearly, employment overruled, properly prof- tion was present proper. case is evidence was both relevant ma- fered In light disposition forego- of our terial.50 issues, ing we affirm the judg- trial court’s opinion It is the of the Court that aspects, exception ment in all with the language from the Obradovich decision re- the amount of the award We plaintiff. lied upon by plaintiff, when considered in therefore vacate that particular aspect context, its supportive true is not of plain- judgment purpose and remand for the position. tiff’s making a redetermination of the award adequate findings thereof. support above, As argues noted also the dead man’s statute is not applicable to
this Again, disagree. case. we must The DURHAM, JJ., PE- STEWART and statute provides, pertinent part: LEARY, TER F. District concur. Judge, following persons cannot be witness- OAKS, J., himself, having disqualified es: herein; LEARY, participate
does not Dis- *16 Judge, trict sat. (3) a civil party any action ... and any person in directly interested the HOWE, (dissenting): Justice event thereof ... when the par- adverse by This case is controlled the rule of law ty in such action ... opposes, claims or sues stated in 442 of the Restatement of or defends ... as the executor ... Section of any person, (1959), deceased ... as to Trusts 2d which reads as follows at with, by statement or transaction such 402: p. 280, Sainsbury,
49.
607
a
of property
Where
transfer
is made to
constructive trust upon
property.
the
On
person
purchase
one
and
price
paid
the
is
appeal to this Court we held
pur-
that a
wife,
by another and the transferee is a
money
chase
resulting trust arose under
object
bounty
child or other natural
of
of
those circumstances and not a constructive
the
the
person by
purchase
whom
is
price
trust.
the
and the
payor
Since
transferee
paid, a
trust does not
un-
resulting
arise
(and
were siblings
not husband and wife as
less the latter manifests an
that
intention
in
case),
the instant
442
Section
was not
the transferee
not have
should
the benefi-
Instead,
applicable.
440
Sections
and 441
cial interest in the property.
controlled, raising a rebuttable inference
that
gift
no
was intended
thus a
and
result-
recognized
applied
We
and
the
An-
rule in
ing trust arose
favor
the payor (Jack).
of
Cercone,
345,
v.
derson
54 Utah
586
180 P.
We affirmed the trial court’s finding by
(1919). In Comment A to
at p.
Section 443
clear
convincing
and
that a
evidence
result-
404, it is
stated that
is the
intention
arose in
ing trust
favor of Jack. The Su-
payor
transfer,
at
the
the time of the
preme
Court
California refused to im-
time,
at a
not
later
which determines
press a constructive trust in Altramano v.
whether a
trust arises.
con-
resulting
“The
Swan,
622,
20 Cal.2d
608
104,
(1940);
43
Ark.
144
Hoef v.
S.W.2d
the decision was made
the two of
by
Hoef,
153
(1926);
323 Ill.
N.E. 658
them that he was
to die
going
first. And
Bowman,
113 Mont.
121
therefore,
Lewis v.
P.2d
they ought
put
to
all of the
(1942),
ground,
162
overruled on another
in her
I
property
paid
name.
think that I
Mont.,
A.2d rejected where the court interest in their jointly held residence. He application Section 160 of the Re- claimed that he the deed signed believing statement of Restitution when the evidence was a new were they getting deed as a did not rebut the inference of a gift from consequence of their paying mortgage son, mother to and establish that a resulting in full. ques- The court held that it was a trust was intended her. tion of fact whether a confidential relation- At the trial the defendant moved to dis- ship between husband and wife existed miss the case on grounds, several which would have required her to disclose including that the evidence did not establish concerning material facts the deed. The a resulting trust. The apparent- trial court court remanded the case for a full eviden- ly granted the motion as to a resulting tiary hearing question. on that Obviously, trust, but made no written finding of fact the case dealt with an different entirely as to whether inference of a gift had problem than we have in the instant case. been overcome. In his bench ruling, which Jankouskas, Del.Supr., Adams v. 452 A.2d granted the apparently defendant’s motion (1982) involved a similar fact situation trust, regards resulting dismiss as a to our The case. court affirmed a lower court said: court finding that the husband turned over ... but resulting a trust does not result his earnings to his wife “in obvious trust” merely because the puts up they agreed husband because had the survivor money purchase his wife’s of them should have everything. rule name. Mr. Park’s I recall testimony, as 442 of the Restatement of Section Trusts it, regard done, mentioned, why this was 2d was not but the lower court’s even when they younger were first finding supported trust was intended started to acquire property, apparently imposition resulting its of a “constructive or *18 which is to the trust. deciding which). A similar the interest (without trust” was the instant case that a trust work outside finding in Mrs. Parks did not Although fact, In lacking. is completely intended em- of the home and had no income from is to the con- ruling court’s bench trial her full time and she contributed ployment, There no trust intended. trary to the maintenance of the home labor —that here between Mr. and agreement was no surrounding it. the small orchard and farm was to have Mrs. Parks that the survivor that she have If Mr. Parks did not intend everything. interest in the properties the full beneficial purchase money, which he provided trial If this case is to be remanded to the is difficult for me to believe that he intend- adequate purpose making court for the findings plaintiff’s equi- as to the value of ed that she was not to at least a half have table interest in his wife’s estate as directed interest therein. Under that view of two con- majority opinion, important evidence, imposed a trust should not be on re- siderations should be observed property. more than one-half of the Her mand: dispose one-half should be free for her to as she saw fit. B to by will Comment First, segregate the trial court should 443 of the Restatement Trusts 2d Section were properties purchased those which at 404: (1954) p. states wholly part funds contributed either or which properties Mr. Park from those purchase price one person pays Where or from acquired by gift were inheritance for which is transferred at his Mrs. Parks’ mother or her estate. As to the a natural ob- direction to another who is law properties, latter there is no basis in the it is shown that ject bounty, of his a trust imposing any whatever kind of partial intended to have a in- payor them, plaintiff’s theory. on even under resulting trust property, terest in Furthermore, they the property as to which payor arises in favor of the as to such originally took title to their names only interest but as to such interest. joint tenants but which Mr. Parks after- Duckworth, Mo., v. Dougherty Accord: her, quitclaimed wards no constructive S.W.2d except trust would arise under the circum- stances stated in 44 of the Restate- Section
ment of Trusts 2d where the transferee
agrees property, to hold the or an interest therein, for the benefit of the transferor.
Secondly, any property in which a con- arisen, or resulting structive trust has trial court should determine the extent of