
    Ethel Merker, Individually and as Guardian ad Litem for Leona R. Merker and Others, Infants, et al., Appellants, v. Aaron Merker, Respondent, et al., Defendant.
   Judgment dismissing complaint after trial unanimously affirmed, on the law and on the facts, with costs to defendant-respondent. Plaintiffs, on the preponderance of the evidence, failed to establish any agreement or understanding, express or implied, by defendant Aaron Merker with the deceased to hold or use the savings bonds or life insurance for use of or delivery to plaintiffs and defendant Arthur Merker. Consequently, on this basis there was no warrant for imposing a constructive trust (Farano v. Stephanelli, 7 A D 2d 420, 423-425; Restatement, Trusts 2d, § 44). Similarly, on the preponderance, as well as the sufficiency, of the evidence plaintiffs failed to establish that any transfers of property were made in a fiduciary or confidential relationship, under circumstances, sufficient to require defendant Aaron Merker to establish the voluntary and bona fide character of the transfers, for failure of which another kind of constructive trust might be imposed (3 Pomeroy, Equity Juris. [5th ed.], § 943 et seq.; Restatement, Contracts, § 497 and the cases cited in the N. Y. Annotations). But even if the evidence had sufficed to establish such burden it was met by defendant Aaron Merker on the preponderance of the evidence. In consequence, neither in law nor in justice should the judgment of the trial court be disturbed. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ. [26 Misc 2d 362.]  