Appeal, No. 76, Jan. T., 1963, from decree of Court of Common Pleas No. 5 of Philadelphia County, March T., 1961, No. 2032, in case of Anna Policarpo, administratrix of estate of Giovanni Policarpo, also known as John Policarpo, deceased, v. Celeste Policarpo, also known as Celeste Di Agostino, and Eladie Policarpo, also known as Eladie Mataloni. Decree affirmed.
Ralph Schwartz, for appellant.
James Iannucci, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
This is an appeal from a final decree of the Court of Common Pleas No. 5 of Philadelphia County, dismissing a complaint in equity seeking to establish a resulting trust.
Appellant is the fiduciary of her husband's estate and the moving party in this proceeding. She seeks to establish that appellees (decedent's two daughters by a prior marriage) took legal title to the realty in question as trustees for their father and now hold it for the benefit of his estate. The property originally was purchased by decedent in March of 1920, in his own name. He and his family occupied the dwelling from that time until his death in November, 1960. In September of 1941, the mortgage on the property was foreclosed,*fn1 and on March 23, 1942, the purchasers at sheriff sale conveyed the property to appellees*fn2 for the price
of $2,600. Six hundred dollars was paid in cash and the balance secured by ($2,000) mortgage executed by appellees.
Appellant may prevail only if it is established that the conveyance of the property on March 23, 1942,*fn3 created a resulting trust in decedent's favor. "A resulting trust arises where a person makes or causes to be made 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 the beneficial interest therein ...". Restatement (2d), Trusts, § 404 (1959) [hereinafter Restatement]. Such a resulting trust may be created if decedent used his own funds or provided the money to purchase the property and directed the sellers to transfer the property to his daughters.
The primary question, therefore, is whose funds were used to make the purchase - was the purchase money that of decedent, as appellant urges, or was it from funds of the grantee-daughters, as they insist.
The well-established and consistently applied standard of the quality of the evidence required to prove an oral trust, is that it must be "'... clear, direct, precise and convincing.'" Petro v. Secary Estate, 403 Pa. 540, 543, 170 A.2d 325 (1961); Moffitt v. Moffitt, 340 Pa. 107, 110, 16 A.2d 418, 419 (1940). Recently this Court, in reaffirming this essential quality of proof, pointed out in Sechler v. Sechler, 403 Pa. 1, 7, 169 A.2d ...