Brennan v. Durkin

Page, J., delivered the opinion of the Court. The appellants in this case, filed their bill in the Circuit Court for Alleghany County, sitting in equity, for a sale of the real estate, of which John Durkin died seized. The appellees, who were defendants below, by their answer, allege, that the property, which consisted of one lot and improvements situated in the village of Lonaconing, was bought and paid for by them, and, in consequence, the equitable title thereto is in them. Subsequently, the parties agreed to the passage of a decree for a sale, reserving all questions as to their rights, to be adjudicated in the audit distributing the proceeds of the sale.

Accordingly a decree was passed, appointing a trustee to make the sale, which was after-wards made, and finally ratified by the Court. The auditor, to whom the case was then referred, made an audit, ⁴⁵³ in which, after allowing the costs, trustee’s commissions, and expenses of the sale, one-fifth part of the residue was awarded to each of the five children of the deceased. The defendants excepted to the ratification of this audit, “because the allowance to the plaintiff, Anne Brennan * * is contrary to the right of the defendants * * inasmuch as the property sold was bought and paid for by them, and the house thereon was built with their money, a trust thereby resulting in their favor.” The Court sustained the exception, and remanded the account to the auditor, with directions to disallow the distribution to Anne Brennan, and to make distribution of the funds after deducting costs, &c. to Patrick, Thomas, Frank and John Durkin in equal shares. The law relating to resulting trusts in Maryland, has been placed by numerous decisions of this Court beyond controversy.

In the case of Witts vs. Horney, 59 Md., 585 , Judge Mlller, in delivering the opinion of the Court said: “ Where one party purchases an estate, and pays the money, and the deed is taken in the name of another, a trust results by construction of law, to the party who paid the money, and such payment may be proved by parol; but in all such cases, the proof of payment by the cestuis que trust must be clear, direct and explicit. The strictness of proof is required, because of the danger of rendering titles depending upon deeds and other written instruments insecure.” In this case the real estate in question was conveyed by John Winn and wife on the 29th day of January, 1875, to John Durkin, the deceased, for a consideration of four hundred and fifty dollars, the receipt of which is acknowledged in the deed. It also appears by the evidence, taken by the parties while the case was before the auditor, that Patrick Durkin with his sister, Anne (now Mrs. Brennan) came to this country in 1870; and in 1871, was followed by his brother Thomas Durkin. ⁴⁵⁴ In 1812, desiring to have, the rest of the family with them, Patrick and his sister Anne, provided the means for them to come; Patrick sending them the tickets for their passage, and Anne, one hundred dollars. In May of that year, John Durkin, Sr. and his wife, accompanied by his sons, Frank and John, both minors, arrived; and the whole family thus re-united, lived together until the complainant Anne was married in October of the same year, when she went off to reside with her husband.

The other members of the family kept house together until the death of the father in 1811, and after-wards the four boys lived with their mother until her death in 1891. At the time of their arrival in this country, John Durkin, the son, was fourteen years of age and his brother Frank was sixteen. The arrangements made for the support of the family, appear to have involved the united labors of the entire family. The mother and Anne, until the marriage of the latter, and afterwards, the mother alone, with the occasional aid of a hired girl, did the house-work, such as cooking, washing, &c.; the father cultivated the garden and attended to such work in the family as required a man to perform it; and the boys worked in the mines, and brought home their wages to their mother, who expended it according to her own judgment.

In respect to these sums thus furnished by the boys, there appears to have been no special agreement. Thomas Durkin in his testimony says, “on pay-days we gave her our money and she, paid it out ” * * ‘‘ she used it in household expenses.” Patrick states: “when John and I worked together * * I used to get money and take it home to my mother.” Mrs. Brennan testifies, that' “the wages that my four brothers earned at Midland and gave to my mother,, she considered that her- own, when they gave it to her;” and Edward Brennan, on being asked, if he did not know that the boys gave their ⁴⁵⁵ wages to her, answered, “I don’t know anything about that,