RSA 561:10 and 561:12, to which the administratrix refers, do not apply herein, for those statutes address the case of a distributee whose identity and title have been conclusively established by a probate decree, but whose location is unknown. See Smith v. Pratt, 95 N.H. 337, 63 A.2d 237 (1949); Voliotes v. Ventoura, 86 N.H. 52, 53, 162 A. 921, 922 (1932). Similarly, RSA 561:9 does not apply, for that statute deals with a situation in which no heir or legatee can be ascertained.

In Skidmore v. Gueutal, 143 A.D. 407, 128 N.Y.S. 402 (1911), it was held that when a grantor conveys property absolutely for a valuable consideration paid to a trustee who executes a declaration of trust later found to be invalid for indefiniteness and for violation of the rule against perpetuities, title does not vest in the person named as trustee, but vests in the beneficiaries named in the declaration, when it is manifest that the grantor did not intend to coney to the trustee in his individual capacity. In Smith v. Pratt, 95 N. H. 337, 63 A.2d 237 (1949), it was held that, when the trust instrument fails to disclose the intention of a declarant concerning ultimate disposition of the res, it will result to the creator of the trust in the absence of evidence of intention that the beneficial interest should pass to someone else. In that case there was no such evidence, so the one who furnished the consideration for the conveyance to the trustee who made the declaration of trust was deemed to be the creator of the trust and the beneficiary of a resulting trust in the remainder, after a life estate in the trustee specifically provided for in the property.

The finding by the Trial Court that defendant is accountable to the plaintiff in the amount of $1,500 impliedly includes a finding that deceased had made contributions which required such reimbursement. York v. Misiak, 95 N.H. 437, 438; Smith v. Pratt, 95 N.H. 337; Hatch v. Rideout, 95 N.H. 431. Being the administratrix of Henry's estate, plaintiff's right to receive said sum does not require the existence of a right of dower in the Somersworth Road property nor proof of fraud practiced by any of the parties. There being no joint tenancy defendant's motions were properly denied and the order must be.

There is no occasion to determine the admissibility of evidence of an agreement that it should be so returned, since the plaintiff's testimony was that there was no such agreement. Conversation which he may have had with the clerk of court with respect to the use to be made of the funds could not have affected the nature of his title as against the decedent, and was properly excluded. If the principle that a trust results by operation of law in favor of one who furnishes consideration for a purchase (Smith v. Pratt, 95 N.H. 337; Hatch v. Rideout, 95 N.H. 431) had any application, the decree entered gave adequate effect to it by decreeing to the plaintiff an interest coextensive with what his contribution was found to be. Exceptions overruled.

Her testimony was not denied, but was in part at least confirmed, by that of her husband. Coupled with the evidence of the subsequent conduct of the parties with respect to the property, the evidence would support a finding that any presumption of a gift of the property by the wife to the husband was rebutted (Foley v. Foley, 90 N.H. 281), and that a trust in favor of the wife resulted (Hopkinson v. Dumas, 42 N.H. 296; Smith v. Pratt, 95 N.H. 337, 340), at least in the proportion which her funds invested in the property bore to the total investment (Hatch v. Rideout, 95 N.H. 431). "Whether there was a trust in favor of the wife was the great question in the case; and inasmuch as that question was not tried . . . the case should be discharged, and stand for further hearing in the court below." Moulton v. Haley, 57 N.H. 184, 187.

Restatement (Second) of Trusts § 425 (1959). See also Smith v. Pratt, 95 N.H. 337, 63 A.2d 237 (1949). Accordingly, the judgment below is reversed and the cause is remanded for entry of judgment for Kayden.