The parties to this litigation had been married for over 40 years at the time of their divorce in 1974. In the course of their divorce proceeding the wife, Clara M. Saff, sought to have a constructive trust imposed on real and personal property which was held only in the name of her husband, Leonard C. Saff. The trial court granted Mrs. Saff a divorce from her husband on the ground of abandonment and awarded her exclusive possession of their jointly owned marital residence in Jamestown, New York; it dismissed, however, her cause of action for a constructive trust on the property held in her husband’s name and denied her request for alimony. The majority hold that this judgment should be affirmed. We disagree. In our view a constructive trust should be imposed at least on certain corporate stock held solely in the husband’s name.
Under well-settled law "[a] constructive trust will be imposed where one party holding title to property is under an equitable duty to convey it to another” (Janke v Janke, 47 AD2d 445, 447-448, affd 39 NY2d 786). A constructive trust is a species of implied trust arising out of a lien recognized in equity, but whose existence or obligation is not known or enforced at law. Its origin is ascribed to Roman law from which it was early imported into the equity jurisprudence of England; it arises from the tacit consent or implied agreement of the parties (3 Story’s Equity Jurisprudence [14th ed], §§ 1590, 1622, 1626, 1627). It has been long accepted as a viable principle in New York (Matter of O’Hara, 95 NY 403, 415). However, in order for a constructive trust to be found, four factors must be present: (1) a confidential or fiduciary relation; (2) a promise, express or implied; (3) a transfer in reliance thereon; and (4) unjust enrichment (McGrath v Hilding, 41 NY2d 625, 628-629; Sharp v Kosmalski, 40 NY2d 119, 121; Janke v Janke, supra).
I. THE CONFIDENTIAL RELATION
Generally, marriage imparts a relationship of confidential*460ity. Indeed there are few, if any relationships that involve the imposition of trust and confidence to the same extent that a marriage relationship does. Where, as here, the wife has entrusted her husband with their joint property and he assumed dominion over it, such dominance is also a factor which must be considered in determining whether a confidential relationship exists (Bogert, Trusts and Estates [2d ed], § 482). The majority agrees that there is a confidential relationship.
II. THE PROMISE
The wife claimed that her husband had made her an oral promise of one half of his property which she alleges should be the subject of a constructive trust. Even absent an express, promise, however, a constructive trust may be imposed (Sharp v Kosmalski, 40 NY2d 119, 122, supra; Sinclair v Purdy, 235 NY 245, 254; Janke v Janke, 47 AD2d 445, 448-449, supra; Matter of Wells, 36 AD2d 471, 474, affd 29 NY2d 931). Further, such a promise or understanding may be inferred from the factual setting and circumstances. Even "[tjhough a promise in words was lacking, the whole transaction, it might be found, was 'instinct with an obligation’ imperfectly expressed (Wood v. Duff-Gordon, 222 N.Y. 88, 91)” (Sinclair v Purdy, supra, p 254; Goldsmith v Goldsmith, 145 NY 313, 318). The implication of a promise here finds support in many circumstances.
The trial court found that Mr. Saff told Mrs. Saff that "what is mine is yours; you’re my wife. It’s always half yours”. In addition, Mrs. Saff consistently testified that "we”, referring to Mr. Saff and herself, went into the business together. The trial court refused to impose a constructive trust, however, in part because it concluded that Mrs. Saff knew what assets were treated as joint properties and which were not so treated. The majority affirm this determination holding that the statements that Mr. Saff made to his wife were not promises but merely a representation which "reflected the intentions of a happier time” and that these statements should be construed to mean only that this couple would share their earnings equally in "raising their family and enjoying their life together”.
Such characterization does not square with the circumstances and pattern of this couple’s life together. From the beginning everything was shared. At the outset of their marriage while Mr. Saff looked unsuccessfully for employment, *461the Saffs resided in a home where Mrs. Saff worked without pay as a maid for their joint room and board. Before coming to Jamestown, New York, the couple lived and worked in various parts of the country. Sometimes one or the other, occasionally both, would have employment. In those years Mrs. Saff worked at the Lionel Train Corp., General Instruments and Standard Oil Company of New Jersey. She was able to do welding, worked on assembly lines and learned to operate all kinds of machinery, including drill presses. She worked a 58-hour week at 60 cents per hour. Regardless of whether one or both worked, however, the Saffs’ savings were always jointly held. They did more than jointly share their earnings. The first home they purchased and their marital home were jointly owned. Most persuasive are the circumstances surrounding Jamestown Plastics. Jamestown Plastics was a business in which Mrs. Saff performed the same duties as she did at Jamestown Steel. Later, it was incorporated. At the time of its sale in 1970, however, the proceeds of this plastics business enterprise were invested by Mr. Saff in jointly owned stock. This act is consistent with his promise concededly made during their marriage that everything was to be shared equally between them, despite the fact that Mr. Saff testified that he would never permit Mrs. Saff to hold any stock or serve as an officer or director of any corporation that he had anything to do with. This investment was made in a "happier time”; and, it is only as a result of their marital difficulties that the husband no longer wishes to share half and half with his wife assets held solely in his name. The facts and circumstances of the parties’ life together flatly contradict the notion that Mr. Saif’s promise was merely a representation made in a "happier time”. Rather, this was a promise made by a husband to his wife which he consistently kept until he decided to abandon her.
III. THE TRANSFER IN RELIANCE
Mrs. Saff tranferred her share of jointly held savings to start Jamestown Steel and rendered valuable services in the early development of this business in reliance on the belief that she shared in the ownership of it. A significant portion of the funds used to launch Jamestown Steel in 1946 was derived from the joint earnings of Mr. and Mrs. Saff and held by them together in a joint account. The business was started in a small, rented garage. The two men spent much of their time *462selling while Mrs. Saff stayed in the garage next to the telephone. The first load of steel beams the company received were too large to fit into the garage, so Mrs. Saff painted them in order to prevent them from rusting. She ran the office, did the banking, bookkeeping, kept all the books and ledgers, talked to creditors, made out the payroll and other checks, paid the bills, filled out government forms, handled collections and did the tax accounting. She also acted as a secretary. In addition to this work in the family business, Mrs. Saff also worked for a period of time in a doctor’s office without pay for three hours per week in order to compensate the doctor for the shots he gave to aid her in becoming pregnant. When the Saffs were unsuccessful in having their own children, they adopted two children. The first adopted child contracted polio and in order for Mrs. Saff to give him the constant care required, she was obliged to bring the company’s book work home at night where, her husband concedes, she questioned him endlessly about all transactions in order to keep the business records accurate. Another enterprise called Jamestown Plastics was later launched by the Saffs. Mr. Saff testified that his wife performed full-time duty for this enterprise while also continuing her work for Jamestown Steel. Both parties agreed that Mrs. Saff also handled all of the personal family finances. In brief, it seems an inescapable conclusion that Mrs. Saff was the financial member of this husband-wife team, in business and at home. Mr. Saff himself testified that his wife has been associated with him in business from 1946 to the present. To this very day Mrs. Saff continues to be the steel business bookkeeper. Although the husband testified that she did not begin work until six or eight months after the business had commenced, his testimony is contradicted by the fact that all the business records reflect that the entries from the very first day of business were in Mrs. Saif’s handwriting. Mrs. Saif’s knowledge that her husband was to hold corporate stock solely in his own name is not a determinative factor that should shield the husband from the imposition of a constructive trust since the transfer by Mrs. Saff was made in reliance on an express or implied promise that she was to share equally in its ownership. Property transferred in reliance upon a promise made in a confidential relationship will prompt a court of equity to impose a constructive trust (Sharp v Kosmalski, 40 NY2d 119, 122, supra).
IV. THE UNJUST ENRICHMENT
We cannot agree with the majority and the trial court that *463there was insufficient proof that the husband was unjustly enriched by his sole retention of all interest in Jamestown Fabricated Steel. Contemporary concepts of what is fair between a husband and wife should be applied, but not within a vacuum. The over-all equities between the parties must be assessed in order to reach a realistic determination "based on a broad view of the human setting involved” (see McGrath v Hilding, 41 NY2d 625, 629, supra; Sharp v Kosmalski, 40 NY2d 119, 123, supra; Foster and Freed, Marital Property and the Chancellor’s Foot, 10 Fam L Q 55, 72-73). Where legal title to property has been obtained under circumstances evincing such a confidential relationship which render it unconscionable for the holder of legal title to retain and enjoy the beneficial interest, equity will impose a constructive trust (4 Pomeroy’s Equity Jurisprudence [5th ed], §§ 1053, 1056a; Bogert, Trusts and Estates [2d ed], § 482). As Judge Cardozo succinctly put it, "[w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee” (Beatty v Guggenhein Exploration Co., 225 NY 380, 386; 5 Scott, Trusts [3d ed], §§ 462, 462.2).
Since appellant wife seeks here an equitable remedy, it is important to note that in granting Mrs. Saff a divorce from her husband on the grounds of abandonment, the trial court found that Leonard Saff had left the marital residence in 1972 and has not returned. It further found that Clara Saff had made her husband welcome in their home and never interfered with him or subjected him to any public criticism or ridicule before the separation; and that her complaints, in private, about his drinking were prompted by reason of a warning given by a family doctor. It should also be noted that 12 years prior to this separation Mr. Saff had fathered a child by another woman and that Mrs. Saff forgave him for this and continued their marriage.
The picture presented by the record in this case is that of a husband and wife who saved, invested and worked side by side in order to start and develop a successful business. The wife had a right to rely on the express or implied understanding that she would share equally with her husband in the ownership of the assets acquired by their joint efforts and savings. To permit the husband to retain solely to himself all of the business assets to which each contributed time and money and *464which each rightfully expected to share, in our view, constitutes unjust enrichment of the husband at the wife’s expense (Janke v Janke, 47 AD2d 445, 448-449, supra).
We agree with the majority that courts should not sit as superlegislators and enact community property law by judicial decree. Contrary to the majority’s claim, we do not seek to establish judicially the rule of community property between these parties. Rather we are simply imposing a constructive trust only upon the Jamestown Steel stock and the incidents thereto held solely in the husband’s name because with respect to that property the four factors of confidential relationship, promise, transfer in reliance on the promise and unjust enrichment are all present.
The majority’s concern that imposing a trust in this case would "trifle with corporate enterprises involving the vital interests of innocent third parties” is unwarranted inasmuch as the trust sought to be imposed is only upon freely transferable corporate stock and the incidents thereto. Further, the concern for the rights of an innocent third party is not supported by the facts since Mr. Dahl (Mr. Saif’s former partner) retired eight years ago.
Restitution should result in a restoration of both parties to a position of status quo (5 Scott, Trusts [3d ed], § 462.2) and, ordinarily, the measure of restitution is the amount of enrichment received (Restatement, Restitution, § 1, Comment a). Therefore the constructive trust imposed on respondent’s interest in Jamestown Fabricated Steel, Inc. should result in appellant obtaining one quarter of the stock of the business (since her husband owns one half of it), one half of whatever business profit he receives annually and also one half of the yearly payment made to Leonard Saif as a result of the sale of the real property on which the business is located to the corporation.
We would not impose a constructive trust on the real property in Randolph, New York, because, although a promise may be found, there is lacking in the transaction sufficient proof of unjust enrichment; nor would we impose a constructive trust on one half of the common stock held solely in Mr. Saif’s name amounting to $60,000. This stock was obtained after the parties separated in 1972 and there is no evidence of any promise with respect to it, without which no constructive trust may be imposed.
Finally, the majority refuses to impose a constructive trust *465and has also affirmed the denial of alimony in this case. We disagree with the latter as well as the former. Absent the imposition of a constructive trust which would enhance the wife’s present financial condition, we believe that alimony should be awarded to provide suitably for the wife considering the parties’ established standard of living, their age and health and, to a limited extent, their conduct (Domestic Relations Law, § 236; Kover v Kover, 29 NY2d 408, 415).
Accordingly, we dissent and vote to modify the judgment as set forth in this opinion and, as modified, it should be affirmed.
Moule, J. P.. and Hancock, Jr., J., concur with Simons, J.; Card amone and Denman, JJ., dissent and vote to modify the judgment, in an opinion by Cardamons, J.
Judgment affirmed, without costs.