| Ark. | Oct 16, 1922
(after stating the facts). The chancellor found a resulting trust in favor of the plaintiffs in the town property in the same proportion as their interest was in the rural homestead. This was on the theory that it was the intention of the parties at the time the exchange of the real property was made that they all should have the same interest in the town property as they had formerly had in the rural homestead. In this connection it may be said that a resulting trust in land may be established by parol evidence, but the evidence must be clear, positive and satisfactory. Spradling v. Spradling, 101 Ark, 451, and Harbour v. Harbour, 103 Ark. 273" date_filed="1912-04-08" court="Ark." case_name="Harbour v. Harbour">103 Ark. 273.
Tested by this rule, we do not think that the finding on this point in favor of the plaintiffs is against the clear preponderance of the evidence.
Eard Gree^ and Beulah Huett are the principal witnesses for the plaintiffs, and Nina Lee Greer and Jewel Rainbolt are the principal witnesses for the defendants. The principal witnesses are all parties to the suit, and as such are vitally interested in the result.
The plaintiffs testify in clear and positive terms that they éxecutéd the deed conveying the rural homestead to Nichols because their mother wished to exchange it -for the house and lot in Morrilton in order that she might move to town with her minor children. They further stated they did not intend to relinquish their re? mainder interest in the property; that they intended to have the same interest in the town property as they had held in the homestead in the country, and did not know to the contrary until sometime after their mother’s death.
On the other hand, the two defendants last mentioned are equally positive that it was the intention of the parties that the plaintiffs should have no interest whatever in the town property. The defendants gave as a reason for this that their father had made certain advancements to the plaintiffs in his lifetime and that this was done for the purpose of equalizing their respective interests in their father’s estate.
They also testified that the plaintiffs were present when their disabilities were removed, and understood that the chancery court in that proceeding decreed their mother an estate for life in the town property with the remainder over to the minors. Ed Rainbolt attempts to corroborate their testimony in this respect.
We think that the testimony of the defendants is whollyinconsistent with the other facts and circumstances in the case. The chancery decree removing the disability of the minors and establishing- their interest in the town property was not rendered until about two years after their mother and the plaintiffs had executed their deed to Nichols, to the rural homestead.
The chancery decree recites that the mother was present and agreed that the town property should 'be decreed to her for her natural life, with the remainder to her minor children. If the plaintiffs had been present and had agreed to this proceeding, it is likely that their consent also would have been recited in the decree and their appearance entered to the proceeding just as in the case of their mother. The fact that this was not done, and that the chancery decree was made two years after the plaintiffs had executed their deed in the exchange of the lands, are strong circumstances tending to show that the plaintiffs were not present when the chancery proceedings were had, and did not agree that their interests in the town property should be divested out of them. Thd plaintiffs could not be bound by the chancery decree unless they were present and knew of its rendition*
Again, it is contended by the defendants that the deed was made for the purpose of equalizing the respective shares of the children in their father’s estate. They claimed that their father had made certain advancements to the plaintiffs in his lifetime and that the plaintiffs had relinquished their claim in the homestead in order to compensate the defendants for the advancements that they had already received at the hands of their father. Their father’s will, however, contradicts their testimony in this respect. He had other lands which he directed in his will to be sold and the proceeds to be divided among his children, taking, into consideration the fact that he had already made a net advancement to Eard Greer, one of the plaintiffs. This showed that it was not necessary for the plaintiffs to relinquish their interest in the homestead in order to equalize the respective shares of the children in their father’s estate.
Therefore, we think that the attending circumstances strongly corroborate the testimony of the plaintiffs, and that the evidence establishing a resulting trust in their favor is clear and satisfactory.
It follows that the decree must be affirmed'.