| Ill. | Jun 18, 1898
delivered the opinion of the court:
It is contended in the argument by appellees that the facts establish a resulting trust as to the land in controversy. It does not appear by a preponderance of the evidence that when the property in controversy was purchased by Keith and the conveyance made to him the consideration was paid with the money of his wife. Keith swears he bought all the land with his own money; that he had $600 when he came to Illinois with his wife, in 1850, which he had earned farming and in the car-pen ter business; that he bought land with this money, which land he afterwards sold and bought the land in controversy, in 1860; that he never got a dollar of any one to buy land with. The receipts introduced by complainants, signed by Martha A. Keith and Joseph A. Keith, to Elijah Tyner,—one for $550, dated March, 1854, and one for $350, dated December^ 1871,—for advancements to her, do not show that the money went to purchase this land. Keith says his wife lost $400 in the bank which broke in Bushnell, and she loaned $400 to one Bobbell and never got anything from him. He says he borrowed $500 from Elijah Tyner, his wife’s father, to buy cattle with, and paid him $50 a year interest for nine or ten years; that no part of it went into the land; that he paid this $500 to his wife as soon as her father died.
This testimony stands uncontradicted. To raise a resulting trust in favor of the wife on the ground that her money went into the purchase of the land that fact must be clearly proved. It would not be inferred from the fact that the husband had in his hands sufficient money of the wife to make the purchase. Thomas v. City of Chicago, 55 Ill. 403" date_filed="1870-09-15" court="Ill." case_name="Thomas v. City of Chicago">55 Ill. 403; Corder v. Corder, 124 id. 229.
It appears from the evidence that the land in controversy was bought in 1855. The common law was in force in this State at that time. Joseph A. Keith was married to Martha A. Keith in 1845, and all moneys received prior to the act of 1861, when reduced to possession, “by force of well known and long established principles of law governing marital relations, became the property of the husband, and the chattels purchased with it became his likewise. The statute of 1861 never was designed to take from the husband that which belonged to him as a consequence of the marriage, nor could it do so without violating those principles of right and justice no legislature has ever, knowingly and of purpose, disregarded and ignored.” (Farrell v. Patterson, 43 Ill. 52" date_filed="1867-01-15" court="Ill." case_name="Farrell v. Patterson">43 Ill. 52; Dubois v. Jackson, 49 id. 49; Jassoy v. Delius, 65 id, 469.) Under the foregoing decisions all the money received by Martha A. Keith prior to 1861 became the property of her husband, and even if it had been paid towards the purchase of the land in controversy, it could not be regarded as the money of the wife.
It is stated that $2162.91 was received by Martha A. Keith after the death of her father. This cannot affect the question, as the trust must result, if at all, at the instant the deed is taken and the title vests in the grantee. Perry on Trusts (sec. 133) says: “No oral agreements and no payments, before or after the title is taken, will create a resulting trust, unless the transaction is such, at the moment the title passes, that a trust will result from the transaction itself.” The same doctrine was held by this court in Reed v. Reed, 135 Ill. 482" date_filed="1890-11-01" court="Ill." case_name="Reed v. Reed">135 Ill. 482, where we said: “The resulting trust must arise, if at all, at the time of the execution of the conveyance.” The evidence is not sufficient in this case to establish a resulting trust.
Was there a declaration of trust, mauifested and proved by some writing, within the meaning of section 9 of chapter 59 of the Revised Statutes of Illinois? It appears by the evidence that on the 19th day of September, 1885, Joseph A. Keith prepared two wills—one for his wife and one for himself. Both were in his own handwriting. Keith testified: “At the time the will I have produced in court was written, I wrote one for myself. Both were written at the same time. Myself and wife talked over our affairs, and about the land each should have and how it should be disposed of, and after the conversation it was reduced to writing in these wills. * * * Whatever agreement we made was put in the wills just as we agreed.” The first clause of the will drawn for his wife devised to complainants fifty-two acres of land in Hancock county, Indiana. The following is the second clause and the part necessary to be considered in this case:
“Second—-I also give and bequeath to my dear relatives above named, a certain tract or parcel of land which belongs to my husband, J. A. Keith, and myself, after we are done with it, lying and being in the county of McDonough and State of Illinois, known and described as follows, to-wit: the west half of the north-east quarter of No. 7 (seven), in township No. 7 (seven), north of range No. 1 (one), west of the fourth principal meridian, eighty acres, more or less. If the above named real estate has not been disposed of at the death of myself and husband, J. A. Keith, I bequeath it to my four dear relatives, as stated before, and if it has been sold and turned into money or real estate and has not been used for particular wants or necessities of us, what remains of it, as I stated above, either real or personal, I give to my four dear relatives, Mary Jane Wolf, Charlotte Miller, Robert N. Tyner and Elijah T. Wolf, be equally divided between them.”
Keith also testified that he put the date to it; that the signature was the signature of his wife; that they consulted together with reference to getting up the will prior to his writing it, and that she consented to the same; that the will he wrote for himself and the one he wrote for his wife were alike, except her will related to the land south of the noad which at her death was to go to her heirs, and his will related to the land north of the road which at his death was to go to his heirs; that there were no witnesses to either will; that he did not recollect that his name was to it, but he might have signed it; that he destroj^ed his will as soon as she died and before he married his second wife.
In construing these two wills prepared by and in the handwriting of Joseph A. Keith for himself and wife at the same time, they fall within the rule frequently applied by this court, that where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument. Wilson v. Roots, 119 Ill. 379" date_filed="1887-01-25" court="Ill." case_name="Wilson v. Roots">119 Ill. 379; Gardt v. Brown, 113 id. 475; Duncan v. Charles, 4 Scam. 561; Freer v. Lake, 115 Ill. 662" date_filed="1886-01-25" court="Ill." case_name="Freer v. Lake">115 Ill. 662.
Appellant contends that, whatever might have been the efficacy of these two wills as a declaration of trust or a testamentary disposition of the alleged property of Martha A. Keith, they were revoked by the subsequent will prepared by one Edie and probated after her death. The case at bar comes within the case of Kingsbury v. Burnside, 58 Ill. 310" date_filed="1871-01-15" court="Ill." case_name="Kingsbury v. Burnside">58 Ill. 310, where it was said (p. 330): “We have seen that the trust is not necessarily to be declared in writing, but only to be manifested and proved by writing, and if there be written evidence of the existence of the trust, the danger of parol declarations, against which the statute was directed, is effectually removed,”—citing Lewin on Trusts, 63. In Forster v. Hale, 3 Ves. Jr. 308, decided by the master of the rolls in 1798, in construing" the seventh section of the English statute respecting" trusts, which is like section 9 of the statute ,of this State, it was said: “All declarations of creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party.” The master of the rolls adopted a letter as a clear declaration of trust, by which he said he meant clear evidence in writing that there was such a trust. And again the lord chancellor, in 1800, (5 Ves. 308,) in regard to adopting a letter as evidence in writing of a declaration of trust, said: “It is not necessary that it should be a declaration, but a writing signed by the party may be evidence of a trust admitted in that writing".” The question of revocation or whether those wills were valid and operative as wills, is immaterial, but the real question is, was there evidence in writing, manifested and proved by these wills, of the existence of a trust.
In construing written instruments courts will endeavor, in all cases, to place themselves in the position of the contracting parties, so that they may understand the language used in the sense intended by the parties using it. Keith and his wife were married in 1845, were well advanced in years and were without children. They had a farm of two hundred and eight acres of valuable land, the accumulation of their joint labor, and they talked over the matter as to how it should be disposed of at their death. The husband says that he and his wife talked over their affairs and about the land each should have, and after that conversation it was reduced to writing'in these wills; that it was put in the wills just as they agreed; that he wrote the wills and they were in his own handwriting. The language is as follows: “I also give and bequeath to my dear relatives above named, a certain tract or parcel of land which belongs to my husband, John A. Keith, and myself, after we are done with it, and lying and being in the county of McDonough and State of Illinois, known and described as follows, to-wit: The west half of the north-east quarter of No. 7, in township No. 7, north of range No. 1, west of the fourth principal meridian, eighty acres, more or less.” The language, “a certain tract of land belonging to my husband, John A. Keith, and myself” clearly establishes the existence of a trust in favor of Martha A. Keith to an undivided half of the west half of the north-east quarter of section 7, township 7, north, range 1, west of the fourth principal meridian, subject to the use and control of Joseph A. Keith during his natural life. The trust being manifested and proved by the written wills, written by Keith himself, who was by law able to declare the trust, it must be carried out.
The decree of the circuit court will be reversed and the cause remanded, with directions to that court to enter a decree declaring the trust, and requiring the proper conveyance to complainants of one-half of the land described in the will of Martha A. Keith, dated November 28,1885, and duly probated, but subject to the use and control of Joseph A. Keith during his natural life.
Reversed and remanded.
Wilkin and Cartwright, JJ., dissenting.