(dissenting).
I dissent from the majority’s affirmance of the decision below that a constructive trust should be imposed to enable an older, richer, and less filially devoted son to take from a younger, poorer, and more filially *82devoted son assets which their father had transferred to the second son.
I begin my analysis where the majority concludes its:
[Ujnjust enrichment ... lies at the heart of the equitable remedy of a constructive trust____ ‘A conclusion that one has been unjustly enriched is essentially a legal inference drawn from the circumstances surrounding the transfer of property and the relationship of the parties.’ [Citation omitted]. The [district] court in the instant case held that appellant would be unjustly enriched ‘if he was permitted to retain this property despite the circumstances under which it came into his hands.’
I do not agree with the majority that the district court’s holding of unjust enrichment was a correct and, indeed, “inevitable” conclusion in the circumstances here.
In my view, Herbert would be unjustly enriched only if his retention of the property was in fact contrary to Anton’s wishes at the time of his death. A court of law might consider this question conclusively settled by Anton’s 1950 will — written thirty years before he could have known that it would be Herbert who nursed him as he slowly died of Parkinson’s disease over a five-year period — but a court of equity is not so constrained. Bearing in mind that “[e]nrichment alone will not suffice to invoke the remedial powers of a court of equity,” it can and should look to all the evidence and make “a realistic determination based on a broad view of the human setting involved” whether “under the circumstances and as between the two parties to the transaction the enrichment be unjust.” McGrath v. Hilding, 41 N.Y.2d 625, 629, 394 N.Y.S.2d 603, 606, 363 N.E.2d 328, 331 (1977).
Even if the district court was correct in its view that Anton wished there to be an equal division of property between the brothers when he made the transfers, or even later when Herbert wrote the letter of December 4, 1985, there is simply no evidence at all that this was his intention at the time he died. Except for the will, the only evidence on that subject is the testimony of Herbert as to his conversation with Anton. And the district court refused to “entirely discredit” this testimony.
On this state of the proof, I would hold, Robert did not carry his burden of showing that he was entitled to the aid of a court of equity to disturb the existing positions of the parties. Indeed, I am convinced (and I find nothing to the contrary in either the opinion below or the opinion of the majority here) that Anton in fact wished the property to be disposed of precisely as it would have been but for the intervention of the district court.
My colleagues have properly highlighted in their opinion the lofty principle: “A constructive trust is the formula through which the conscience of equity finds expression,” Simonds v. Simonds, 45 N.Y.2d 233, 238, 241, 408 N.Y.S.2d 359, 362, 380 N.E.2d 189, 193 (1978) (quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380 (1919) (Cardozo, J.)). I regret that they have not employed that principle to better effect.