
    Frank ARWOOD, Appellant, v. Deborah I. SLOAN (Eaton), as personal representative of the Estate of Mitchell Robinson a/k/a Vaughn Dee Mitchell Arwood, Appellee.
    No. 88-2461.
    District Court of Appeal of Florida, Third District.
    April 10, 1990.
    Rehearing Denied June 4, 1990.
    Ralph F. Miles, Hialeah, for appellant. Ronald G. Neiwirth, Miami, for appellee.
    Before BASKIN, COPE and LEVY, JJ.
   BASKIN, Judge.

Frank Arwood appeals an adverse final summary judgment entered in his action seeking a declaratory judgment. We affirm.

Upon consideration of the evidence and pleadings, the trial court prepared findings of fact and conclusions of law:

Decedent, Vaughn Dee Mitchell Robinson a/k/a Vaughn Dee Mitchell Arwood, cohabited with Plaintiff, Frank Arwood, for many years in the State of Florida, without benefit of matrimony. During the course of their relationship, the subject real property, whose title was taken originally in the name of “Frank Arwood and Vaughn Arwood, his wife”, was transferred by them to “Vaughn Ar-wood”, the decedent. In addition, various sums of money were deposited in bank accounts in the name of Decedent. Plaintiff filed a claim against Decedent’s probate estate, claiming that the real property, funds in the bank, and other assets in Decedent’s name, were his sole property, and that title to the same had been placed in Decedent’s name for his convenience. The estate rejected the claim; this suit followed.
Plaintiff alleges that he is entitled to the relief sought under the alternative theories of constructive trust or resulting trust. This Court finds that the Plaintiff cannot prevail under either theory. There can be no constructive trust, as a constructive trust requires fraud, misbehavior, or mistake. From the record before me, I find none.
Similarly, Plaintiff cannot show the necessary elements of a resulting trust. A very strong presumption exists in favor of the correctness of the recitations in the subject deed; an even stronger presumption exists in favor of a determination that the money and real estate in question were transferred to Decedent as gifts. See: Safford v. McCaskill, 157 Fla. 133, 25 So.2d 210 (Fla.1946); see also: Williams v. Bullington, 159 Fla.618, 32 So.2d 273 (Fla.1947). I find that the subject transfers to Decedent were gifts, and thus, not subject to the imposition of any form of remedial trust.
Finally, in light of the foregoing, Defendant has agreed in open court to the dismissal of her counterclaim without prejudice. Accordingly, the Court being otherwise fully advised in the premises, it is hereby
ORDERED and ADJUDGED that:
(a) Summary final judgment be, and the same is hereby entered in favor of Defendant and against the Plaintiff; Plaintiff's request for the imposition of a constructive trust and/or a resulting trust upon real estate located at 1526 N.E. 31st Street, Miami, whose legal description is:
“Lot 7, and the East 20' of Lot 6, and the West 20' of Lot 8, in Block 4, of ALLAPATTAH PARK, according to the Plat thereof, as recorded in Plat Book 6, at Page 64½, of the Public Records of Dade County, Florida”
as well as Florida Alliance National Bank account number 0100234966-06 and Southeast Bank, N.A. account number 081-297871, is denied.
(b) The aforementioned property was solely in the name of Decedent, and at the time of her death, the same passed into Decedent’s probate estate, free and clear of any claims of the Plaintiff.
(c)Defendant’s counterclaim is dismissed without prejudice.

We agree with the trial court that the evidence does not support the imposition of either a constructive or resulting trust and that the transfers constituted gifts. Abreu v. Amaro, 534 So.2d 771 (Fla. 3d DCA 1988); Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA), review denied, 407 So.2d 1103 (Fla.1981). In the absence of a genuine issue of material fact, summary judgment is appropriate. Moore v. Morris, 475 So.2d 666 (Fla.1985). As a matter of law, Frank Arwood is entitled to neither the real property nor the bank accounts held by the decedent’s estate.

Affirmed.

LEVY, J., concurs.

COPE, Judge

(dissenting).

I respectfully dissent. The summary judgment should be reversed.

The appellant, Frank Arwood, cohabited for many years with Vaughn Robinson, now deceased. They held themselves out as being husband and wife, although they were not married. In 1982 Arwood purchased a house, and supplied all of the consideration for the purchase. Title was taken as Frank Arwood and Vaughn Ar-wood, his wife. In 1985 they executed a warranty deed to the decedent alone, the consideration being recited as “love and affection.”

After the decedent’s demise, Arwood submitted a claim in probate, to which the personal representative objected. Arwood then filed a complaint for declaratory judgment. He contends that he is entitled to the imposition of a resulting trust or constructive trust on the residence and on two bank accounts held in the decedent’s sole name which were used for operation of appellant’s business.

In granting summary judgment, the trial court essentially relied on a presumption that the transfers were gifts. In so doing, the trial court erred.

“[I]t is well settled that where the purchase money of land is paid by one person, and the title is taken in the name of another, the party taking the title is presumed to hold it in trust for him who pays the purchase price.” Pyle v. Pyle, 53 So.2d 312, 313-14 (Fla.1951) (citation omitted). The trial court relied on an exception to this rule: where the legal title is taken in the name of a person for whom the purchaser has a legal or moral obligation of support, such as a family member, then a presumption of gift will arise. See, e.g., Safford v. McCaskill, 157 Fla. 133, 25 So.2d 210, 212 (1946); Dames v. Dames, 149 So.2d 570, 571-72 (Fla. 3d DCA), cert. denied, 155 So.2d 616 (Fla.1963).

In the present ease there has been cohabitation without marriage, and where that is so, the presumption is reversed: a presumption will arise in favor of a resulting trust, rather than a gift. See Williams v. Bullington, 159 Fla. 618, 32 So.2d 273, 275-76 (1947). Moreover, even where there is a presumption of gift, the presumption is not conclusive and may be rebutted by proof of the real intention of the payor. Dames v. Dames, 149 So.2d at 572. The intent of the parties cannot be established from the operative documents, but must be established by other evidence. See Hiestand v. Geier, 396 So.2d 744, 747 (Fla. 3d DCA), review denied, 407 So.2d 1103 (Fla.1981).

The record reflects that there are disputed issues of material fact with respect to the resulting and constructive trust issues. Arwood presented the affidavit of a nephew, who is a disinterested person for purposes of the Deadman’s Statute, § 90.602, Fla.Stat. (1989), supporting Ar-wood’s contentions. The personal representative offered substantial portions of Arwood’s testimony in support of her motion for summary judgment. That being so, there has been a waiver of the Dead-man’s Statute as to the subject matter of the oral communications, see § 90.602(2)(b), Fla.Stat. (1989), so that the corresponding portions of Arwood’s affidavit are also admissible. See generally Briscoe v. Florida National Bank, 394 So.2d 492, 493 (Fla. 3d DCA 1981); C. Ehrhardt, Florida Evidence § 602.1, at 270-72 (2d ed. 1984). In short, the applicable presumption in this case operates in Arwood’s favor, not against him; but even if there were a presumption in favor of there having been a gift, there is sufficient evidence in this record to create a triable issue of fact.

For the reasons stated, the summary judgment should be reversed and the case remanded for further proceedings. 
      
      . We disagree with the conclusion in the dissent that summary judgment is inappropriate. The record clearly demonstrates that the deceased had a regular source of income and sole control over the bank accounts in question; Frank Ar-wood also maintained bank accounts solely in his name; and Frank Arwood freely transferred his interest in the home to the decedent. Consequently, no genuine issue exists.
     
      
      . On analogous facts a constructive trust has been held to be an available remedy. Williams v. Grogan, 100 So.2d 407, 410 (Fla.1958).
     
      
      . The cases of Abreu v. Amaro, 534 So.2d 771 (Fla. 3d DCA 1988) and Hiestand v. Geier, 396 So.2d 744, are not to the contrary. Both of those cases involve the question whether the plaintiff had met his burden of proof at a plenary trial on the merits. The present appeal is from a summary judgment, as to which it is axiomatic the moving party bears the burden of showing the nonexistence of any disputed issue of material fact. That showing has not been made here.
     
      
      . The exact scope of the waiver is not material for this appeal.
     
      
      .A troublesome aspect of the case, not before us on this appeal, is Arwood’s admission that the assets were placed in decedent’s name in order to protect him from creditors. The Florida Supreme Court has held that such an intention will not bar the imposition of a resulting trust unless there is an actual fraud on creditors. Sponholtz v. Sponholtz, 190 So.2d 572, 573 (Fla.1966); Steele v. Lannon, 355 So.2d 190, 192 (Fla. 2d DCA 1978). Moreover, ”[f]raud is not presumed, but must be established by the party relying upon it.” Sponholtz v. Sponholtz, 190 So.2d at 573 (citations omitted). The defense of unclean hands would be available to the personal representative at trial if the criteria of Spon-holtz were met.
     