delivered the opinion of the court:
Appellant, Carl Fender, as assignee of the contract purchaser, instituted suit for specific performance of a contract for warranty deed against the heirs аnd devisees of Ferdinand and Anna Yagemann, the original contract sellers. Thereafter, by leave of court, the executors and a specific devisee under the will of Agnеs Mathieu, the original contract buyer, filed a cross complaint against the appellant and the defendant Yagemann heirs asking that title to the real estate be quietеd in the specific devisee. After a hearing on the merits, the circuit court of Kane County entered a decree vesting and quieting title in Clara Riley, the specific devisee, аnd directing the master in chancery to execute and deliver to Clara Riley a deed to the premises. From this decree Fender appeals. There was no appearance and no appeal is taken by the Yagemann heirs. Since a freehold is involved we have jurisdiction.
The following facts appear to be undisputed. On or about March 31, 1926, Ferdinand and Anna Yagemann, husband and wife, entered into an agreement for warranty deed with Agnes Mathieu whereby the Yagemanns sold a combined residence and store property at 802 Claim Street in the city of Aurora for $4500, payable $1000 down, $500 on June 1, 1926, and the balance of $3000 payable $150 on October 1 and April 1 in each year until the whole amоunt with 6% annual interest has been fully paid. The agreement provided for the premises to be conveyed by warranty deed upon payment of the full purchase price and intеrest. By assignment dated September 25, 1933, and acknowledged September 26, 1933, Agnes Mathieu “in the consideration of the sum of $10 and other good and valuable consideration” transferred to her brother “Carl Fender, his heirs, administrators, executors and assigns all my right, title and interest of whatsoever kind, character and nature in and to” the agreement for warranty deed. This аssignment appeared on Mrs. Mathieu’s executed copy of the original agreement, and that copy with the assignment shown thereon was recorded in Kane County on Seрtember 26, 1933, and mailed by the recorder to attorney W.- F. Fowler, now deceased, who acted as the notary public in taking Mrs. Mathieu’s acknowledgment. Mrs. Mathieu’s copy of the аgreement has endorsed on the reverse side the $500 payment made on June 1, 1926, and twenty $150 payments, plus interest, paid on or about October 1 and April 1 of each year therеafter. Following the endorsement of the April 1, 1936, final payment appears this notation:
“Paid in full Will give Deed and abstract as soon as complete. /S/ Anna Yagemann by E. A. Yagemаnn April 1, 1936”
All payments upon the contract were made by Agnes Mathieu or someone on her behalf. It was stipulated that the real estate taxes for the years 1935 through 1941 were paid by Carl Fender; taxes for 1931-34 and 1942-49 were paid by Agnes, who lived in the property from the time the contract was entered into until 1958, approximately a year before her death, when, because of her illness she moved into the home of her sister and brother-in-law, Clara and Leo Riley. Thereafter the Claim Street property was substantially improved, all аrrangements for the repairs and improvements being made by the Rileys, and paid for by checks signed by Agnes Mathieu. In October, 1959, Agnes Mathieu executed a will specifically devising this prоperty to Clara Riley, and naming Clara and her husband as co-executors ; Agnes died the following December 21.
A former neighbor testified that in 1956 she talked to Agnes Mathieu regarding the possibility of her participation in a boundary dispute involving the Claim Street property, and that Agnes then said that “she couldn’t help us. She had turned the property over to her brother, Carl Fender. It was not hers to fight with.” Mrs. Fender, appellant’s wife, testified he made repairs and improvements on the property, and helped with the basement and yard work.
Appellаnt, in seeking reversal of the decree, contends principally that the appellees have failed to establish a resulting trust in favor of Mrs. Mathieu and her devisee, Mrs. Riley, in that thе findings of the court are against the manifest weight of the evidence, and that appellees failed to show by clear and convincing evidence that Mrs. Mathieu intended to сreate a resulting trust for her own benefit.
It is apparent that the claim of a resulting trust here is based upon the' fact that Mrs. Mathieu paid the entire purchase price and сontinued in physical possession of the premises from the date of the assignment in 1933 until about a year before her death and that in the last year of her life she continued to rеceive the rent from the premises and made substantial improvements thereon. No explanation appears from the evidence why the assignment was made to her brоther, Carl Fender. As we said in First Nat. Bank and Trust Co. v. Illinois Nat. Bank and Trust Co.
It is our opinion that the proof offered by the appellees in this case does not meet the required stаndard to establish a resulting trust in favor of Mrs. Mathieu during her lifetime or in favor of her devisee after her death. We cannot presume that Agnes Mathieu intended the assignment to Fender, absolute on its face and unequivocal in its terms, to be in trust for her benefit in the absence of proof to that effect more clear and convincing than that here offered. Her continuing to live in the premises, her payment of the balance of the purchase price, and the taxes subsequent to 1942 have no bearing on the question of whether or not a resulting trust was raised on September 26, 1933. The self-serving statement of Mrs. Mathieu in her will is not sufficient to meet the required burden of proof. (First Nat. Bank and Trust Co. v. Illinois Nat. Bank and Trust Co.
Since the record does not support the asserted resulting trust, the decree must be reversed and the cause remanded with directions to enter a decree in accordance with the prayer of the complaint.
Reversed and remanded, with directions.