delivered the opinion of the court:
This wаs a bill filed in the circuit court of McLean county for the partition of 120 acres of land in said county, formerly standing of record in the name of Robert Russell, who departed this life intestate September 30, 1916. Appellant, Elizabeth Russell, the widow of said Robert Russell, filed an answer and also a cross-bill, in еach of which she claimed to be the equitable owner of an undivided 29/125 part of 62 acres of said land by reason of a resulting trust therein. The cause was referred to a master in chancery, who reported that appellant did not have the equitable interest by reason of a resulting trust that she claimed in said land, and recommended that partition be granted as prayed in said bill and that the cross-bill be dismissed for want of equity. The .circuit court approved the master’s report and entered a decree of partition accordingly.
Robert Russell left him surviving his widow, appellant hеrein, and a son and a daughter, as his only heirs-at-law. The daughter died shortly after her father’s death, leaving a husband and three minor children, said minor children being appellees herein. We find no dispute in the record or briefs over the interests of the various parties, except as to the clаim of the appellant, Elizabeth Russell, to said equitable interest under a resulting trust. Elizabeth Russell’s father, William McClure, died in 1907, leaving ten children (including said Elizabeth) as his only heirs-at-law, and leaving 145 acres of land in McLean county, which descended to his children. As we understand the record McClure died intestate, and his hеirs desiring to dispose of the land, entered into an arrangement whereby one Yerion purchased 83 acres of said land, and Robert Russell, husband of said Elizabeth, purchased the remaining 62 acres. The price paid for each piece was $100 per acre,—that is, the whole 145 acres sold for $14,500, Elizabeth Russell’s share being $1450. All the heirs of William McClure joined in executing a deed of the 83 acres to Yerion and also joined in executing a deed of the 62 acres to Russell, it being understood and agreed that all parties concerned were to consider $1450 as having been paid on the purchase price by reason of said Elizabeth receipting for her interest in all her father’s real estate and executing said deeds. Russell borrowed the balance of the purchase price from another person to pay the heirs the amount over $1450 of the purchase price of said 62 acres, apparently giving a mortgage on said 62 acres for the amount of this balance, a portion of which mortgage still remains unpaid.
Appellant testified before the master that she permitted her $1450 interest in her father’s land to be applied to the purсhase of the 62-acre tract bought by her husband and that her husband never paid her back the money or any interest thereon. John McClure, a brother of Mrs. Russell, testified that he had conducted the business as to the sale of his father’s farm as the agent or representative of the other children; thаt each of the children was entitled to $1450 as his or her share from the sale of the two pieces of land, and that Mr. and Mrs. Russell said to him, "John, if we can turn Lizzie’s share for a payment we want it,” meaning they wanted to purchase the 62 acres. He further testified that all of the $1450 that was Mrs. Russell’s share in her father’s property was applied as part payment of the purchase money on the 62 acres bought by Russell, and that Russell borrowed the money from another person to pay the balance. Another brother, Frank McClure, testified as to the same transaction, and stated that he heard Robert Russell, after the purchase was closed, say that Lizzie put her money in that land and that he could not have bought it unless she had. We find no contradiction in the record as to these facts. This was substantially all the testimony concerning the transaction by reason of which Mrs. Russell claims the equitable interest under her answer and cross-bill.
None of the parties to this litigation charge or claim any fraud or dishonorable dealings in any of the transactions, and apparently what was done was with the full consent and understanding of all parties. The only question necessary to be considered on this record is whether, on these facts, it will be presumed that a trust was raised by implication in favor of the appellant, Mrs. Russell, in said 62 acres, for the amount of money coming from her father’s estate that was applied on the purchase of said 62 acres.
As we understand the argument of сounsel for appellees, it is to the effect that, even conceding the facts to be as stated above, Mrs. Russell would not be entitled to any equitable interest on the basis of a resulting trust; that, at the most, she could only have a claim for her share of the purchase money of the 83 acres sold to Yerion; that for her interest, derived from her father’s estate, in said 62 acres which was purchased by her husband she could not, under any authority, claim a resulting trust, as her share in said 62 acres had never been paid to her and said undivided one-tenth interest was deeded by her directly to her husband as a gift. We do not think there is any merit in this argument. It has always been the doctrine of courts of equity that such courts have more regard for substance than form. This argument of counsel for appellees is to the effect that if appellant, Mrs. Russell, had been paid her share of the 62 acrеs in cash and then had given it to her husband to apply as part of the purchase money she might be entitled to an equitable interest therefor, but not having been paid her share she cannot be so entitled. If the money as to her interest in said 62 acres had actually passed back and forth, аs appellees contend it should have in order to give her now the right to claim any interest in said 62 acres by reason of her original interest therein, it would have been a mere idle form and the result would have been the same as it is now.
“Where land is purchased with the money of one persоn and the deed taken in the name of another, a trust results by operation of law in favor of the person whose money is used.” (Mathis v. Stufflebeam, 94 1Ill. 481; see, also, Coates v. Woodworth,
But- it is argued that the facts do not show that there was any agreement between appellant and her husband that the propеrty should be taken in the name of the husband, subject to a resulting trust in the wife’s favor. It is clear, under the authorities, that it is not presumed that there is any definite agreement, either in writing or by parol. “Since a resulting trust cannot rest on an express agreement, no parol agreement between the pаrties, made before or after the conveyance of property, can give rise to a resulting trust therein.” (39 Cyc. 106.) “The intention of the parties to create a resulting trust is not necessary to its existence. A constructive trust often arises where the beneficiary not only does not intend to create the relation but has no knowledge of its existence at the time.” (Wright v. Wright,
On the facts on this record the conclusion is inevitable that appellant is entitled to an equitable interest of an undivided 29/124 of the 62 acres of land purchased in the name of her husband, Robert Russell, from the McClure heirs. Beyond all doubt such intеrest arose at the time the deed from the McClure heirs to Russell was delivered. Elizabeth Russell’s share in the proceeds of the whole farm was then considered to be released and paid, and the resulting trust in her favor began at the time such conveyance went into effect. There is no tеstimony in the record that tends in the slightest degree to show that it was understood that Elizabeth Russell only put into the land her ■share of the proceeds of the part sold to Yerion, and deeded to her husband, as a gift, her one-tenth interest in said 62-acre tract. While it is true that where a man pays for land and causes it to be conveyed to his wife or child the presumption is that it was intended as an advancement or gift, (Reed v. Reed,
Counsel for appellees further argue that even though it might be held, otherwise, that this would be a resulting trust, it cannot be so held here in view of the rule laid down by this court in Stephenson v. McClintock,
For the reasons stated the decree of the circuit court is reversed and the cause remanded, with directions to enter a decree in accordance with the views herein expressed.
Reversed and remanded, with directions.