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Turro v. Turro

Decided: January 6, 1956.

ELEANOR TURRO, INDIVIDUALLY, AND GERARD ALBERT TURRO, AN INFANT, BY HIS GUARDIAN AD LITEM, ELEANOR TURRO, PLAINTIFFS-RESPONDENTS,
v.
CHARLES TURRO, DEFENDANT-APPELLANT



Clapp, Goldmann and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

[38 NJSuper Page 538] This action was brought to quiet title to certain property on which a one-family house is situated. The infant plaintiff is the posthumous child and sole heir of his intestate father, and he bases his claim on a deed to the property made allegedly to his father as grantee. However, his father's father, the defendant, admittedly paid the purchase price therefor to the grantor named in the deed; and in a counterclaim the grandfather asserts that the father took title subject to a purchase money resulting trust in the grandfather's favor. To the counterclaim the infant answers

saying that his grandfather, when he paid the money, intended to make a gift of it to his father. Thus the principal issue is presented: was a gift intended?

There is another issue in the case, to wit, that raised by defendant's contention that the grantee named in this deed was himself, not his son. In fact, both he and his son used the same name at times. However, whether we look at the matter from the angle of the grantor, or that of the defendant or his son, we have no hesitancy in holding that the son, who had admittedly signed the contract of sale, was the grantee. We therefore need not even consider the effect of the rule forbidding a party to argue, on appeal, for two facts diametrically opposed to each other (at this juncture of the argument defendant contends he is the grantee; on the question of a resulting trust, he claims his son is such). Jersey City v. Hague , 18 N.J. 584, 603-605 (1955).

We are concerned then with only the issue first stated: did defendant make a gift of the purchase money to his son? The mere fact that he paid the same gives rise to what may be "accurately" described as a "presumption" that he intended the grantee to take title to the property in trust for the defendant. This is a presumption against the gift. However the further fact that the grantee was defendant's son gives rise to a conflicting "presumption" that defendant intended a gift. Weisberg v. Koprowski , 17 N.J. 362, 371-374 (1955).

We find ourselves confronted here with two questions: first, does the latter presumption supersede the former one; and second, if so, what quantum of evidence is needed to rebut it?

Where a presumption is not heavily fortified by policy or probability -- viz. , the ordinary presumption -- it disappears as a factor in the case as soon as sufficient evidence is adduced as to the presumed fact as would enable a reasonable man to make a finding contrary to that fact. New Jersey in this respect follows the rule stated by Thayer and espoused in the Model Code of Evidence (Rule 704); it differs from that appearing in the Uniform Rules of Evidence

(Rule 14). Further, see In re Weeks' Estate , 29 N.J. Super. 533 (App. Div. 1954); Silver Lining v. Shein , 37 N.J. Super. 206 (App. Div. 1955). In the case of a conflict between two ordinary presumptions, if the facts giving rise to one of them will, under the rule stated, be sufficient to destroy the other, then both presumptions can logically be disregarded, and the issue will turn simply on the facts themselves, freed of the presumptions. Further, see Thayer, Preliminary Treatise on Evidence 346 (1898); 9 Wigmore, Evidence (3 d ed.), ยง 2493; Rule 704, comment b, Model Code of Evidence; Levin, Pennsylvania and the Uniform Rules of Evidence: Presumptions and Dead Man Statutes , 103 U. Pa. L. Rev. 1, 21 (1954). However, in this case the mere fact that defendant paid the purchase money, though it raises a presumption of a resulting trust, of course does not indicate an intention not to make a gift of the money. So, to resolve the conflicting presumptions here, we must look to other principles.

It may be (we need not decide the point), that any two conflicting presumptions of equal weight will always neutralize each other. Rule 15, Uniform Rules of Evidence. But however that may be, nevertheless where one of two conflicting presumptions rests on substantially stronger considerations of policy or probability, it displaces the weaker one and stands alone in the action. Vreeland v. Vreeland , 78 N.J. Eq. 256, 262 (E. & A. 1911), and a line of cases stemming therefrom, six of which are cited in Annotation , 14 A.L.R. 2 d 7, 42 (1950); see Kushinsky v. Samuelson , 142 N.J. Eq. 729, 731 (E. & A. 1948). In accord, see Morgan, Some Observations Concerning Presumptions , 44 Harv. L. Rev. 906, 932 (1931); 1 Morgan, Basic Problems of Evidence 36 (1954); and Rule 15, Uniform Rules of Evidence. The law works out a technique here in order to give effect to dominant considerations.

As will appear from the New Jersey cases, the conflicting presumptions presented here are not of equal weight. The presumption of a resulting trust favoring the person who pays the purchase money is outweighed by the

presumption of gift favoring the grantee. The apparent philosophic tendency of our cases is not to look with favor upon a resulting trust, since the trust always arises dehors the ...


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