190 Ill. 197 | Ill. | 1901
delivered the opinion of the court:
Counsel for the appellant, in their brief, say the appellant is not asking to recover on a verbal express trust, but upon a resulting trust. When a parent pays the purchase price of real estate and directs the title to be made to his or her child, the presumption which arises in law is, that an advancement or gift to the child is intended. (Taylor v. Taylor, 4 Gilm. 303; Pool v. Phillips, 167 Ill. 432; 1 Am. & Eng. Ency. of Law,-2d. ed.-p. 769.) In such state of case a resulting trust can only be established by clear and satisfactory proof that neither an advancement nor a gift was intended. (Pool v. Phillips, supra.). The presumption is the same whether the parent be the father or the mother. (1 Am. & Eng. Ency. of Law,-2d ed.-p. 773, and note 2.)
The only testimony relied upon to overturn this legal presumption is that of the appellant. Her testimony, in substance, was, she and her husband kept a hotel; that Prose was her son by a former husband and lived in her family; that she had a conversation with appellee Curtis about purchasing the lot; that he offered to sell it to her for §125, but she told him she would talk to her son before purchasing; that she had a talk with her son, q,nd asked him if she would buy the ground if he would help improve it; that he said he would assist, but wanted it so it would be his; that his brother had plenty of property and ought not to come in on this lot; that she agreed to have the deed drawn in his name if he would help improve it; that she thought he was the one to have it; that she intended to give him the property if he would help improve it. She also testified she wanted the lot for a home, and that she agreed to have the title conveyed to her son for the reason he had “agreed to help her improve it,” and that she told him that the lot was not his until “he did that.” What improvements she intended or desired to have put upon the lot, and to what extent she expected her son to assist therein in order the gift might become irrevocable, is not disclosed. It is clear she intended that the lot should belong to him unless she revoked the gift for non-performance on his part of the verbal understanding between them.
In the view most favorable to be taken for the appellant, all that can be deduced from this testimony is, that the transaction, as between the mother and son, was a gift to the son, which might be subsequently revoked by, her should the son fail to fulfill the conditions of a verbal agreement between them requiring the performance of some act or acts by the son in the future. The testimony is not only insufficient to overturn the leg'al presumption of a gift or an advancement, but tends rather to add confirmation to the presumption that a gift was intended. The plea of the Statute of Frauds presented an insurmountable barrier to the establishment of an express trust by verbal testimony.
The decree is affirmed.
r, „ , Decree affirmed.