FT - Fenderson v. Austin (11/26/1996)

[Riser Adkisson LLP]

Rosemarie Fenderson v. Lettie Austin
685 A.2d 600 (Pa. Super. 11/26/1996)

SUPERIOR COURT OF PENNSYLVANIA

No. 00506 Philadelphia 1996

1996.PA.15721, 685 A.2d 600, 454 Pa. Super. 412

November 26, 1996

ROSEMARIE FENDERSON, EXECUTRIX OF THE WILL OF BRYAN FENDERSON,
DECEASED, APPELLANT

v.

LETTIE AUSTIN FENDERSON, EXECUTRIX OF THE WILL OF ELIZABETH CRAFT,
DECEASED

Appeal from the Order Dated December 26, 1995, Docketed December 28, 1995, In the Court of Common
Pleas of Philadelphia County, Civil No. 5898 April Term 1991.

Before: Del Sole, Popovich and Beck, JJ. Opinion BY Beck, J.

The opinion of the court was delivered by: Beck

OPINION BY BECK, J.:

FILED NOV 26 1996

Appellant-plaintiff Rosemarie Fenderson, as Executrix of the Will of Bryan Fenderson, sought an
ownership interest in real property under the following theories: (1) resulting trust; (2)
constructive trust; and (3) an express oral agreement. A judgment was entered by the court
refusing to impose a resulting or constructive trust. The chancellor found that appellant failed
to prove by clear, explicit and direct evidence that Bryan Fenderson's estate was entitled to an
ownership interest in the property by way of a resulting trust or constructive trust and in the
alternative that a resulting or constructive trust would be invalid. Upon review of the
chancellor's findings of fact which are supported by clear, explicit and direct evidence, a
resulting trust exists in favor of Bryan Fenderson's estate. Furthermore, we find that the
resulting trust is not invalid.

Our scope of review of an equity decree is limited. Dudash v. Dudash, 313 Pa. Super. 547, 460 A.2d
323 (1983). See DeMarchis v. D'Amico, 432 Pa. Super. 152, 637 A.2d 1029 (1994). The chancellor's
findings of fact will not be reversed unless it appears that the chancellor clearly committed an
abuse of discretion or an error of law. Id. However, the chancellor's Conclusions of law, which
are derived from nothing more than reasoning from underlying facts and not involving a
determination of credibility of witnesses, are reviewable. Id.; Linnet v. Hitchcock, 324 Pa.
Super. 209, 471 A.2d 537 (1984) (appellate court is not bound by trial court's Conclusions of law
based on its findings of fact). See In re Estate of Cornell, 511 Pa. 475, 515 A.2d 555 (1986)
(whether the evidence presented was clear, direct, precise and convincing is a question of law).
The following is an account of the facts based on the chancellor's findings of fact.

The instant action involves property purchased by members of the Fenderson family. The Fenderson
family consisted of Lydia Fenderson, the mother of Bryan Fenderson, Lewis Fenderson and Elizabeth
Fenderson Craft. Charles Craft is Elizabeth Fenderson Craft's husband and Rosemarie Fenderson is
Bryan Fenderson's wife. Lettie A. Fenderson is Lewis Fenderson's wife. Rosemarie Fenderson is the
appellant-plaintiff and the Executrix of Bryan's will, while Lettie Fenderson is the appellee-
defendant and the Executrix of the Will of Elizabeth Craft.

Prior to the purchase of the real estate involved in the present action, Lydia, Bryan, Elizabeth
and Charles Craft lived with Bryan Fenderson in his home. For the time relevant to this case,
Lewis Fenderson lived in Washington D.C. In 1961, the family decided to purchase a family home at
15 Pelham Road ("the Property") for $24,279.11. Lewis Fenderson paid the initial deposit of
$2,300. At settlement, Charles Craft provided $6,890.32 in cash and Bryan Fenderson provided
$4,388.37. This amount was in the form of a settlement check from the sale of Bryan's home which
he endorsed and made payable to Lewis, Lydia and Elizabeth and which they in turn endorsed and
made payable to the title company. The remainder of the purchase price was provided for by a
$13,000 mortgage acquired by Lewis.

Lewis Fenderson, Elizabeth Craft and Lydia Fenderson took title to the property as joint tenants
with right of survivorship. Bryan Fenderson was not named in the deed. Testimony revealed that
Bryan was not a title owner because at the time the property was purchased, there was a lawsuit
filed against Bryan. *fn1

Even though Bryan was not a legal owner of the property, he and Rosemarie along with Lydia and
Elizabeth and Charles Craft lived on the property until 1969. In 1969, Elizabeth and Lydia moved
out and Bryan and Rosemarie occupied a portion of the property and rented the remainder. Bryan
Fenderson reimbursed Lewis and Elizabeth for 50% of the expenses and mortgage payments associated
with the property, as well as, paid $2,254 directly to the mortgage company. *fn2

In 1991, Elizabeth and Bryan were the only parties still alive who were initially involved in the
purchase of the property. *fn3 Elizabeth passed away in January of 1991. Since Bryan was not a
title owner of the property, the property was distributed according to Elizabeth's will. *fn4
After Bryan's death in March of 1991, appellant, as executrix of Bryan Fenderson's estate,
initiated the present action seeking an ownership interest in the property.

Appellant claimed Bryan Fenderson's estate had an ownership interest in the property under an
express oral agreement to add Bryan's name to the deed or by a resulting or constructive trust.
There was a hearing before a Judge pro tem. After the hearing, the chancellor issued a decree nisi
refusing to find that Bryan Fenderson's estate had an ownership interest in the property.

After issuing findings of fact, the chancellor concluded that appellant had failed to sustain her
burden of proving that Bryan's estate was entitled to a resulting trust by clear, explicit,
direct, unequivocal and convincing evidence. The chancellor then determined that even if a
resulting trust existed, it was invalid, because the trust was created to avoid the claims of
potential creditors. The chancellor concluded that while the parties discussed adding Bryan's name
to the deed, they never reached an agreement.

However, the chancellor did create a life estate in Rosemarie Fenderson's favor. He found that
Elizabeth Craft entered into a contract with Bryan promising to make a will in which Rosemarie
would possess a life estate in the property. *fn5 After exceptions were filed by appellant and
denied by the trial court, the decree nisi was made final and entered as a judgment. Rosemarie
filed the appeal presently before us. We reverse.

CONTRACT TO MAKE A WILL AND PROVIDE A LIFE ESTATE FOR PLAINTIFF

The chancellor's order declaring a life estate for the benefit of Rosemarie cannot be affirmed on
appeal. A trial court errs when it rules on an issue not presented to it, because an issue not
raised is deemed waived. Pennsylvania Department of Transportation v. Reott, 56 Pa. Commw. 252,
424 A.2d 991 (1981). We find that it was error for the chancellor to grant Rosemarie a life estate
interest in the property, when neither the plaintiff nor the defendant set forth the theory of a
promise to make a will benefiting Rosemarie as a basis for establishing an interest in the
property.

RESULTING TRUST

We also find the chancellor erred in failing to impose a resulting trust in favor of Bryan
Fenderson's estate. Based on the chancellor's findings of fact, supported by clear, precise,
direct and unequivocal evidence, a resulting trust exists. Furthermore, the resulting trust is not
invalid.

A resulting trust arises when a person makes a Disposition of property under circumstances which
raise an inference that he does not intend that the person taking or holding the property should
have a beneficial interest in the property. Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975);
Policarpo v. Policarpo, 410 Pa. 543, 189 A.2d 171 (1963). A purchase-money resulting trust arises
in favor of the person who paid the purchase price, when the transfer of property is made to one
person and the purchase price is paid by another. Masgai, supra; Grubb v. Delathauwer, 274 Pa.
Super. 511, 418 A.2d 523 (1980); Potoczny v. Dydek, 192 Pa. Super. 550, 162 A.2d 70 (1960). See
Restatement (Second) of Trusts § 440. In order for a purchase-money resulting trust to arise, the
following is required (1) the transfer is made to one person and the purchase price is paid by
another; (2) the payor does not have the intention that no resulting trust shall arise; (3) the
transferee is not the natural object of the transferor's bounty. Fitzpatrick v. Fitzpatrick, 346
Pa. 202, 29 A.2d 790 (1943).

A purchase-money resulting trust can even arise when several persons contribute to the payment of
the purchase price and title is not in the names of all contributing payors. Zahorsky v.
Leschinsky, 394 Pa. 368, 147 A.2d 362 (1959); Potoczny, supra. When this occurs, a resulting trust
arises in favor of the person who paid the purchase price in the proportion that the amount paid
bears to the total purchase price. Lewis v. Spitler, 266 Pa. Super. 201, 207, 403 A.2d 994 (1979).
See Restatement (Second) of Trusts § 454.

A resulting trust must arise at the time title is transferred. Musselman v. Myers, 240 Pa. 5, 87
A. 425 (1913). Payment of the purchase price by the beneficiary subsequent to the transfer of
title without a prior obligation on the part of the beneficiary to pay fails to raise a resulting
trust. Id. As a result, the purchase money must be paid at the time title passes or the
beneficiary must be obligated to pay. Id. See United States of America v. Premises Known as 717
South Woodard Street Allentown, Pennsylvania, 804 F. Supp. 716 (1992), modified, 2 F.3d 529.

The law requires clear, direct, precise and convincing evidence of a resulting trust before it
will convert absolute ownership into an estate of lesser quality. Masgai, supra; Grubb, supra. The
person seeking the imposition of the resulting trust has the burden of meeting the evidentiary
standard.

The law is clear that once the evidence establishes that a party has made a partial payment
towards the purchase price, the beneficiary has a prima facie case for a purchase-money resulting
trust in his favor in the proportion that the amount paid by him bears to the total purchase
price. Purman v. Johnston, 343 Pa. 645, 22 A.2d 722 (1941) (mere payment of purchase price is
sufficient to create a resulting trust); Fitzpatrick, supra; Lewis, supra. See Restatement
(Second) of Trusts § 440. In the present case, after setting forth the findings of fact the
chancellor found that appellant failed to meet the burden of providing clear, direct, precise and
convincing evidence that a resulting trust existed. We disagree.

The chancellor found that "the cash portion of the acquisition was provided in part by the
settlement check from the sale of Bryan Fenderson's home in the amount of $4,388.37 which he
endorsed and made payable to Lewis Fenderson, Lydia Fenderson and Elizabeth Craft and which, they,
in turn, endorsed and made payable to the title company." Chancellor's Findings of Fact. According
to this finding of fact, Bryan contributed 1/6 of the amount towards the purchase price at the
time title passed to Lewis Fenderson, Elizabeth Craft and Lydia Fenderson. This finding is clear,
precise, direct evidence that Bryan Fenderson contributed a portion of the purchase price at
settlement and establishes a prima facie case for a partial purchase-money resulting trust.

A prima facie case established by the party seeking a resulting trust can be rebutted by evidence
showing that the payor did not intend to receive a resulting trust or any beneficial interest in
the land. Magsai, supra; Lewis, supra. See Restatement (Second) of Trusts § 441. When there is no
evidence as to the intention of the payor, it is inferred that the payor intended to acquire a
beneficial interest in the property in such proportion as the part paid by him bears to the total
purchase price. Restatement (Second) of Trusts § 454 cmt. b. In the present case, appellee failed
to produce direct evidence that Bryan did not intend to have a beneficial interest in the
property. As a result, we can infer that Bryan intended to acquire a beneficial interest in the
property to the extent of his contribution to the purchase price. In fact, the chancellor's
findings of fact (1) that the only reason Bryan's name was not added to the deed was because a
lawsuit had been filed against Bryan and (2) that Bryan had reimbursed Lewis and Elizabeth for the
mortgage payments they made, support the assertion that Bryan did intend to have a beneficial
interest in the property.

In order to impose a resulting trust, the transferee must not be the natural object of the
transferor's bounty. When the transfer of property is made to a wife, child or other natural
object of the bounty of the person who contributed to the purchase price, it is presumed that the
transaction was intended as a gift and a resulting trust does not arise. Hornyak v. Sell, 427 Pa.
Super. 356, 629 A.2d 138 (1993); Kohr v. Kohr, 271 Pa. Super. 321, 413 A.2d 687 (1979). See
Restatement (Second) of Trusts § 443. However, the relationship of brother and sister, does not,
per se, give rise to a presumption that one is the object of the other's bounty. Fitzpatrick,
supra. In the present case, there was no evidence admitted to show that Bryan's contribution was a
gift. As a result, the fact that Bryan Fenderson is the brother of Lewis and Elizabeth does not
give rise to a presumption of a gift and does not interfere with the finding of a resulting trust
in favor of Bryan Fenderson's estate.

Upon review of the chancellor's findings of fact, there is clear, direct evidence that Bryan
contributed to the purchase price and there is no evidence that he did not intend to receive a
resulting trust. As a result, we find that a resulting trust was created at the time of settlement
in Bryan Fenderson's favor in proportion to the amount he contributed.

In the present case, a partial purchase-money resulting trust arose at the time of settlement
which must be enforced unless the trust was established for an improper purpose, i.e. the purpose
of defrauding the creditors of the payor. Policarpo v. Policarpo, supra; Summers Estate, 424 Pa.
195, 226 A.2d 197 (1967). The chancellor found that the reason Bryan Fenderson's name was not
included in the deed was because of a lawsuit filed against him. The plaintiff in the lawsuit had
fallen on Bryan Fenderson's property and had initiated a personal injury action.

The plaintiff in the lawsuit filed against Bryan Fenderson is considered a creditor of Bryan's
under the Pennsylvania Uniform Fraudulent Transfer Act. 12 Pa.C.S. § 5101(b) (Pennsylvania Uniform
Fraudulent Transfer Act defines creditor as any person who has a claim, right to payment
regardless of whether it is reduced to judgment, liquidated, fixed, contingent, matured, unmatured
or disputed). Therefore, it would seem as if a resulting trust cannot arise in favor of Bryan
Fenderson because he contributed to the purchase price without taking little in order to defraud a
potential creditor. However, section 444 of the Restatement (Second) of Trusts allows a resulting
trust created for an illegal purpose to arise unless it is against public policy to enforce such a
resulting trust. Restatement (Second) of Trusts § 444 cmt. a.

In the present case, the chancellor also found that the lawsuit was dismissed with prejudice. We
find that it is not against public policy to enforce the instant resulting trust when the filed
lawsuit was dismissed without any evidence that the claim which Bryan sought to avoid had any
substantial foundation. As a result, the resulting trust in favor of Bryan Fenderson is valid and
must be enforced.

As set forth above, at the time title passed in the property, a resulting trust was created in
Bryan Fenderson's favor. By contributing $4,388.67 to the purchase price of $24,279.11 at the time
of settlement, Bryan Fenderson obtained a 1/6 fractional undivided interest in the property. In
the present case, Lewis Fenderson, Elizabeth Craft and Lydia Fenderson (the parties whose names
appear on the deed) had an interest in the property as joint tenants with right of survivorship.
As a result, we must determine whether Bryan holds his interest as joint tenant with right of
survivorship or as a tenant in common. There is no case law on the subject to guide us under these
particular facts, and as set forth below, we find that Bryan Fenderson's ownership interest in the
property is as a joint tenant with right of survivorship.

The only case law dealing with ownership interest in the property concerns the situation where
title is taken by a person who pays a portion of the purchase price, and the other portion is paid
by another who does not take title. Lewis, supra. In this situation, the court created a partial
purchase-money resulting trust for the benefit of the payor who held his interest in the property
as a tenant in common with the transferor. Id. Because the theory of a resulting trust depends on
the parties' intent and because the deed provides for joint tenancy with right of survivorship, we
find that Bryan Fenderson holds an interest in the property as a joint tenant with right of
survivorship.

The doctrine of resulting trusts is based on the presumption of the intent of the parties arising
from and shown by their acts at the time of the transaction. Peoples-Pittsburgh Trust Co. v.
Saupp, 320 Pa. 138, 182 A. 376 (1936). In the present case, at the time the deed was created, it
provided for joint tenancy with right of survivorship. As set forth above, the resulting trust was
also created at the same time the deed was transferred. By acting in a manner which lead to the
creation of a resulting trust, as well as providing for joint tenancy with right of survivorship,
the parties taking title to the deed not only intended to hold their interests as joint tenants
with right of survivorship, but also intended for Bryan Fenderson's interest to be as a joint
tenant with right of survivorship.

The law is clear that to hold property as joint tenants with right of survivorship, the four
unities must be present: unity of time, unity of possession, unity of title and unity of interest.
See Summary of Pennsylvania Jurisprudence (Second) Property § 6:4. We find that the creation of a
resulting trust does not destroy the four unities. Unity of time requires that the interests of
the tenants vest at the same time. Unity of title requires the tenants to have obtained their
title by the same instrument. Because a resulting trust is created at the time title is
transferred, Bryan's interest in the property was created at the same time that Lewis, Elizabeth
and Lydia received an interest in the property, as well as from the same instrument. Unity of
possession requires the tenants to have an undivided interest in the whole estate. This unity is
satisfied because by contributing a portion of the purchase money at the time of settlement, Bryan
Fenderson received a 1/6 undivided interest in the property. Unity of interest requires the
tenants to have estates in the property of the same type, duration and amount. Because a resulting
trust arises at the time title passes and is established from the same instrument, Bryan's
interest is the same type, duration and amount as the remainder of the parties listed in the deed.

Since Bryan Fenderson is a joint tenant with right of survivorship, Bryan Fenderson, as the last
remaining survivor, had sole ownership and control over the property prior to his death. In re
Parkhursts' Estate 402 Pa. 527, 167 A.2d 476 (1961) (essence of joint tenancy with right of
survivorship is the vesting of two or more persons with joint ownership during lifetime with sole
ownership and control passing to survivor at the death of other joint tenants). Once Bryan passed
away, the property should have been disposed of under Bryan Fenderson's estate.

Order reversed. Trial court is directed to enter order imposing resulting trust on the property
known as 15 Pelham Road, Philadelphia, PA in favor of the estate of Bryan Fenderson. Jurisdiction
relinquished.

Opinion Footnotes

*fn1 The lawsuit against Bryan was dismissed with prejudice in 1975.

*fn2 The chancellor found that in addition to the money Bryan paid to reimburse his brother and
sister, Bryan paid $80,057.47, including mortgage payments, to maintain and pay expenses on the
property. It was determined that Bryan contributed 61% of the total costs while Lewis and
Elizabeth jointly contributed 39% of the total costs of the property.

*fn3 Charles Craft died in 1964, Lydia Fenderson passed away in 1972 and Lewis Fenderson died in
1983.

*fn4 Elizabeth's will provided for a life estate in Bryan Fenderson. Upon his death or vacating
the property, the premises were to be sold and the proceeds distributed 10% to Bryan Fenderson,
50% to Lettie Fenderson and 40% to charities.

*fn5 This Conclusion was based on the the chancellor's interpretation of a conversation between
Elizabeth and Bryan. Elizabeth promised to "do the right thing" after Bryan expressed his concern
over what would happen to his wife once he died.