178 N.E. 480 | Ill. | 1931
This is an appeal by appellants, Elizabeth D. Emrich and Frank J. Emrich, her husband, from a decree of the circuit court of Cook county ordering appellants to convey to appellee, Emma Link, all their right, title and interest in certain real estate in the city of Chicago, title to which was conveyed to appellee and appellant Elizabeth D. Emrich as joint tenants in 1916.
On May 4, 1928, appellee filed in the circuit court of Cook county a bill of complaint alleging that Elizabeth D. Emrich held title, as joint tenant with appellee, to a one-half interest in the real estate in question as trustee for the use and benefit of appellee. The prayer of the bill was that Mrs. Emrich and her husband, who was also made a party defendant to the bill, might be decreed to convey all their right, title and interest in the property to appellee. A demurrer to the bill was sustained, and appellee electing to stand by her bill prosecuted an appeal to this court, where *240
the decree was reversed (Link v. Emrich,
Appellee was married to Henry Eberhardt, who died on January 16, 1906. By him she had two children, Elizabeth D. Emrich and Henry Eberhardt, who survived their father and are yet living. On July 25, 1906, appellee married John Link, a widower, who had children by a former marriage. In March, 1916, appellee contracted to buy from Josephine Burmeister for $9000 the property in question, which is located at 3719 Maple Square avenue, in Chicago, and is improved with a three-flat building. She paid $6000 of the purchase price in cash, the balance of $3000 being secured by a mortgage on the premises. On March 17, 1916, the premises were conveyed to appellee and Mrs. Emrich as joint tenants, the deed having been thus drafted at appellee's request. The $6000 paid by appellee for this property was the proceeds of the sale of property which her first husband conveyed to her shortly before his death and was all of the money and property that she possessed at that time. She took possession of the property after the deed above mentioned had been made, collected all rents and paid all taxes and assessments against the property and for all repairs and improvements made thereon. Appellants lived in one of the flats in the building for a year and a half and paid rent to appellee. Link died on *241 October 5, 1924. In February, 1926, appellants moved into the flat in said building then occupied by appellee, and from that time down until the bill was filed they and appellee lived there together, appellants in place of rent paying all the expenses of the flat and providing board for appellee. On May 29, 1926, appellee paid $1000 of the indebtedness secured by mortgage on the premises and she and appellants executed a trust deed to secure the balance of $2000, which was evidenced by a new note signed by appellee and Mrs. Emrich. This note has not been paid. In January, 1928, appellee requested her daughter to convey her one-half interest in the property to her, and the daughter refused.
Josephine Burmeister, from whom the premises in question were bought, as a witness for appellee, testified that prior to the time the deed to the premises was executed appellee told witness that she thought she would have the deed made to her and her daughter since Link was her second husband and she wanted her children protected; that a few days later appellee said she had talked the matter over with Paul Kraemer, and that she wanted the deed made to her and her daughter in order to protect her children.
Appellee testified, in substance, as follows: After she had looked at the premises in question and about decided to buy the property she talked the matter over with her daughter, who objected to her buying it because her husband would have an interest in it. She went to see Paul Kraemer, a real estate dealer and a friend whom she trusted, and he advised her to have the deed made to her and her daughter as joint tenants. He explained to her what a joint tenancy was. She told Kraemer exactly what she wanted. She wanted the title fixed so that in case she should die before her husband he would take no interest in the property. Kraemer knew she had a son as well as a daughter. She wanted her son to have an interest in the property after her death. He was not in financial difficulties at the time the deed was made, "but he did, like all *242 men did, drink a little bit, but he was all right otherwise." She understood that, the way the deed was made, if she died first her daughter would take the property. In response to a question as to why she did not have the deed made to herself, her daughter and her son she said: "I don't really know. At that time my daughter was the whole thing — you know, my pet." After the deed had been made Kraemer said, "Mrs. Link, I am sure your daughter will return it back to you if Mr. Link should die before you," and the daughter said, "Sure; I only want to set my mother safe." Kraemer died several years ago.
Elizabeth D. Emrich testified that she never at any time promised to convey the property to her mother and denied making the statement which her mother testified she made to Kraemer after the deed was executed. She stated that she heard her mother explain to Kraemer that the money with which the property was bought came from her first husband and that she wanted the title fixed so that if anything happened the property would pass to her daughter; that her mother then said, "You know she is the only one that I really would want to have it, because you know our Henry has made a lot of trouble." Kraemer then said, "Yes, I know your Henry." In rebuttal appellee denied having told Kraemer that she wanted her daughter to have all of her property at her death, or that her son, Henry, had so conducted himself that she "wanted to cut him out."
The position of appellee is that Elizabeth D. Emrich took title to a one-half interest in the property subject to a resulting trust in favor of appellee. Appellants contend that the evidence is insufficient to show that there was or is a resulting trust.
Ordinarily the existence of a resulting trust is established by proof that one person has bought property and paid for it with his funds and has had the title conveyed to another. Where, however, a husband has bought property and had the title transferred to his wife, or a parent has *243
bought property and had the title transferred to his or her child, a resulting trust is not shown to exist unless it is established that it was not intended that the wife or child should take a beneficial interest in the property, because under such circumstances there is a presumption that the property was transferred to the wife or child as a gift or advancement. (Euans v. Curtis,
The fact of the payment of the purchase price for the property in question by appellee is not disputed, and therefore the question in this case is whether or not appellee has proved that it was not interest that Elizabeth D. Emrich should take a beneficial interest in the property at the time the deed was executed. Appellee contends that the facts that the property constituted her entire estate and that she had another child that would be disinherited if there was no trust, together with the fact that she took and retained exclusive control of the property, collected the rents and paid the taxes and assessments and for all repairs and improvements of the property, show that it was not the intention of the parties that the daughter should have a *244
beneficial interest in the property. In support of this contention she cites Pool v. Phillips,
The evidence tends to show that appellee believed it to be a definite and certain fact that her daughter would survive her, and that the chief reason why she had the property conveyed to herself and daughter as joint tenants was that she wanted her husband to have no interest in the property at her death if she died before he died. If it was intended that the daughter should take no beneficial interest in the property and that appellee should have the entire equitable estate then a resulting trust arose and she was in a position to compel a conveyance from her daughter at any time. If that is true, then the arrangement was not such a one as would have deprived appellee's husband of dower in the property had she died before her husband and also before her daughter died, because a surviving spouse is entitled to dower in real estate in which the deceased spouse had such an equitable estate at the time of his or her death that he or she could have enforced conveyance of the legal title to him or her. (Kathman v. Sheehan,
The decree of the circuit court is reversed and the cause remanded, with directions to enter a decree dismissing the bill of complaint for want of equity.
Reversed and remanded, with directions. *247