Bankers Sec. Life Ins. Society
v.
Shakerdge, Shakerdge
Court of Appeals
1980
Bankers Sec. Life Ins. Socy. v Shakerdge
49 N.Y.2d 939
Opinion
Argued March 20, 1980
Decided April 22, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HILDA G. SCHWARTZ, J.
Lester Lichter for appellant.
Jay F. Gordon, Perry S. Galler and Ray Beckerman for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
In general, though as an equitable doctrine its application to particular circumstances is susceptible of some flexibility, to establish a constructive trust there must be provided: (1) a confidential or fiduciary relation, (2) a promise, express or implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment (Simonds v Simonds, 45 N.Y.2d 233, 241-242; Sharp v Kosmalski, 40 N.Y.2d 119, 121). On the record here, the only showing that any promise had been made would have to be culled from several remarks made by the decedent's brother Abraham. These, in the form of statements to Joseph and his wife, in the main after the former's death, went no further than to assert that he would "do the right thing" and "take care of" decedent's wife and child. These expressions, though perhaps evidencing some moral obligation, cannot be taken to mean that Abraham was bound to fulfill the expressed intention by applying to that purpose the proceeds of the two insurance policies on which, without interruption, he had been the beneficiary from the time they were written more than a decade earlier. Moreover, the statements contained no reference to the policies. Inasmuch as the constructive trust doctrine serves as a "fraud-rectifying" remedy rather than an "intent-enforcing" one, without more, the circumstances offered by the decedent's widow were insufficient to establish the promissory element which is essential to the proof of such a trust (Matter of Wells, 36 A.D.2d 471, 474-475 [GABRIELLI, J.], affd 29 N.Y.2d 931).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.
The case of Bankers Sec. Life Ins. Socy. v Shakerdge provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Bankers Sec. Life Ins. Socy. v Shakerdge may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Bankers Sec. Life Ins. Socy. v Shakerdge is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.
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