McGeehan, Colie and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.
This appeal is from a final judgment dismissing the complaint, entered in the Chancery Division of the Superior Court after hearing.
The complaint, filed on November 26, 1948, sought to set aside a deed signed by the plaintiff, by which she conveyed to her brother Joseph O'Neal premises in East Orange, consisting of a lot and three-family dwelling. It alleged that the plaintiff has been very ill since the spring of 1947, and particularly so from March, 1947, to the fall of that year. On a date unknown to her, in the summer of 1947, while she was suffering from a moderately advanced stage of tuberculosis and was in a weakened physical and mental condition, "her brother, Joseph, came to the plaintiff and requested her to sign a paper writing which he falsely represented had something to do with her death, or guardianship of her infant children. Plaintiff, relying on the said representations of her brother, Joseph, and because of her dependence upon him and the trust and confidence reposed in him, and because of her weakened physical and mental condition * * * executed said paper writing." Subsequent to the death of Joseph, which occurred on August 8, 1948, she learned for the first time that the paper writing which she had signed was a deed dated July 8, 1947, conveying the premises to Joseph. The complaint alleged, further, that she understood neither the irrevocable character of her act nor its legal consequences; that the effect of the deed was to impoverish her, and that she did not have the benefit of independent advice but reposed trust and confidence in Joseph because of their confidential relationship. It charged that the instrument was obtained by fraud and was invalid.
The court below found that the property was conveyed to the plaintiff by the Warranty Building and Loan Association, by deed dated June 16, 1945; that the purchase price of the
property was paid by Joseph; that from June 16, 1945, when the property was conveyed to the plaintiff, until the death of Joseph, he exercised complete dominion over the property; that a resulting trust arose in favor of Joseph; and that the conveyance by the plaintiff was an acknowledgment that the property belonged to him and by her own act she is estopped from asserting ownership for herself.
The plaintiff argues that the court erred in finding that a resulting trust arose and in failing to find that Joseph made a gift of the premises to the plaintiff. We think the interests of justice require us to make new findings of fact, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Rules 1:2-20, 4:2-6.
The uncontradicted testimony was that Joseph O'Neal came to Newark from Georgia in 1916, became a special policeman, and prospered. He was the oldest and plaintiff the youngest of a family of five brothers and sisters. The plaintiff lost her sight in 1921. Joseph sent money to his father to pay for medical treatment for her and later, in 1921, sent for her to come and live with him in Newark. She received treatment for her eyes in Newark and soon thereafter was able to see, with the aid of glasses. When she came to Newark, Joseph was single and she lived with him, keeping house, taking care of his clothes and cooking for him. In 1934 she moved into her own apartment, where she lived with her twin boys who had been born out of wedlock a few years earlier. From 1934 until she became very ill in May, 1947, she was employed. In May, 1947, she became afflicted with pneumonia and pleurisy, which culminated in tuberculosis of the lungs. She was hospitalized on July 2, 1947, until September 8, 1947, and again on two later occasions.
In 1945 Joseph purchased the property and had the title taken in the name of the plaintiff, subject to a building and loan mortgage of $2,500. The balance of the purchase price, amounting to $1,549, was paid by him. The building and loan savings book was in the name of the plaintiff. She made the monthly payments of $35 to the building and loan and
paid the water bills until she entered the hospital in July, 1947. She notified the tenant that she was the owner of the premises and rent must be paid to her. The then tenant paid the rent to her each month and received her receipt therefor until June, 1947. While she was very ill in June, 1947, and under constant medical attention, Joseph told her that he would take care of the rent; thereafter, the tenant paid the rent to Joseph, who gave receipts signed by the plaintiff. When the tenant moved out in July, 1947, Joseph urged her to move in, but she refused. At her suggestion, Joseph moved into the premises and lived there until his death on August 8, 1948. At the time of Joseph's death, Joseph was fifty-two years of age and the plaintiff forty-five years of age.
Joseph was regarded by his brothers and sisters as the head of the family. A very close relationship existed between Joseph and plaintiff and Joseph gave her money and bought her clothes, and continued to contribute money to her after the title to the premises had been placed in her name. Joseph visited her frequently, aided her in disciplining her boys, selected a boarding school for them, and helped her financially in their schooling.
A resulting trust does not arise where a transfer of property is made to one person and the purchase price is paid by another, if the person by whom the purchase price is paid manifests an intention that no resulting trust should arise. Restatement, Trusts, N.J. Annot. , § 441 (1942). Oral declarations of the payer's intention to make a gift to the transferee are admissible to show that the payer intended that the transferee should have the beneficial interest in the property, and such declarations are admissible whether made before or at ...