Keith v. Miller

• Decision Date: 18 June 1898
• Citation: 51 N.E. 151,174 Ill. 64
• Parties: KEITH v. MILLER et al.
• Court: Illinois Supreme Court

174 Ill. 64

51 N.E. 151

KEITH

v.MILLER et al.

Supreme Court of Illinois.

June 18, 1898.

Appeal from circuit court, McDonough county; Jefferson Orr, Judge.

Bill in equity by Charlotte Miller and others against Joseph A. Keith for a decree that plaintiffs own certain lands subject to a life interest in defendant. From a decree for complainants, defendant appeals. Reversed.

Wilkin and Cartwright, JJ., dissenting.Sherman & Tunnicliff and Neece & Son, for appellant.

Baily & Holly and David Myers, for appellees.

This was a bill in equity, filed September 1, 1893, in the circuit court of McDonough county, by Charlotte Miller, Mary Jane Wolf, Robert N. Tyner, and Elijah T. Wolf against Joseph A. Keith, claiming the W. 1/2 of the N. E. 1/4 of section 7, township 7, range 1, in McDonough county, Ill., devised to them under the following will by Martha A. Keith, the wife of Joseph A. Keith: ‘First. I give, bequeath, and dispose of my property as follows, viz.: My real estate, consisting of a certain tract of land described and designated as follows, viz. fifty-two acres of land on the old homestead (Tyner homestead), located near on Blue river, in Hancock county, Indiana, to be equally divided among my dear relatives, my sisters, namely, Mary Jane Wolf and Charlotte Moller, my brother, Robert N. Tyner, and nephew, Elijah T. Wolf; and, further or secondly, I give, bequeath, and devise unto my dear relatives the following described real estate, viz.: The west one-half of the northeast quarter of section 7, in township 7 north, and range 1 west of the fourth principal meridian, in McDonough county and state of Illinois, with the following proviso or conditions: That my husband, Joseph A. Keith, have, during his lifetime, the entire use and control of it, and, in case he should make sale of the same, then the proceeds of said sale shall go to my relatives above named, equally divided. In witness whereof I hereunto set my hand and seal this 28th day of November, 1885. Martha A. Keith.’ The will was executed in the presence of two witnesses, and admitted to probate in McDonough county, February 3, 1886. The bill alleges that Martha A. Keith died in McDonough county, February 1, 1886, leaving a husband, Joseph A. Keith, surviving her, but left no child or children; that she left a last will and testament, which was duly probated February 3, 1886; that Joseph A. Keith claimed the aforesaid land in fee (the land in Indiana mentioned in the will not being involved in this suit), and denied complainants' title; and prays that complainants be decreed to be the owners, subject to the life estate of Joseph A. Keith, and that the court decree that he holds the land in trust for complainants, subject to said life estate. The bill also alleges that Joseph A. Keith bought this land, together with other land, part of which is 78 acres on the S. side of the S. W. 1/4, and on W. 1/2 of the S. E. 1/4, of section 6, with the separate money of Martha A. Keith, derived from her father, Elijah Tyner, both before and after his death, in 1871; that Keith received $1,150 from said Tyner before his death, and $1,913 from his estate, all belonging to his wife, Martha A.; that said Keith and his wife agreed that each should own an interest in said land in proportion to the amount invested therein by each; that said Keith agreed with said Tyner that the money he had or should receive from him or his estate should be invested for the use of Martha A., or her heirs at the death of said Keith; that said Keith bought the lands and took the deeds in his own name; that said Keith and his wife, in her lifetime, had made an oral partition of said lands, by which it was agreed that she should have the lands in controversy as her separate property; that said Keith wrote a joint will for himself and wife, by which he devised the same from said Martha A. to himself for life, remainder to her heirs, writing his own name therein, and that the same is a declaration of trust in which he held the land; that pursuant to such agreement said Martha A. claimed to be the sole owner, subject to such life estate; that said Keith has been in possession since her death, and now denies that she ever had any interest in the land, or that complainants now have, and denies she had any right to dispose of the same by devise; that said agreement is not of record, and that said Keith is liable to dispose of the land. The bill prays that said oral partition be confirmed and for general relief.

Joseph A. Keith put in an answer to the bill, in which he admits the making and probate of the will of his wife, Martha A., and the death of Elijah Tyner; denies knowledge of her will until after her death; denies that he purchased the land in controversy, or any land, with money belonging to Martha A. or with money received from her father; denies there was any agreement that she should have any interest therein or that he bought any land with such money; denies that he agreed with Elijah Tyner to invest any money for Martha A., or that the same or any land or property should go to her or her heirs at his death, and sets up the statute of frauds as a defense; denies that he wrote a joint will for himself and wife, and that any will of his wife contained a declaration of trust signed by him; denies that there was any oral partition, and that his wife was to have the land in controversy as her separate property, or that she ever claimed it except by her will, which was without his knowledge or consent; says that he became the owner of all the lands mentioned in the bill about 40 years ago, by deeds to himself, paying the consideration out of his own means, and not from his wife's, and did not have any of her money when the conveyances were made; that said conveyances were recorded and kept at his home; that his wife knew said lands were so conveyed to him, and, with her knowledge and consent, he had exclusive and open possession and control, and paid taxes, since the date of said deed, claiming to own the same; that complainants have had knowledge of his claim since Martha A. Keith's death from his possession and from the records, and have acquiesced therein; sets up laches and possession for 20 years, and payment of taxes for 7 years, under color of title, as a defense; that he is the absolute owner of said land, and that said Martha A. had no interest therein which she could dispose of by will, and denies that complainants are entitled to any relief. A general replication was filed by complainants to the answer. The decree below found a resulting trust in all the land in favor of Martha A. Keith. Joseph A. Keith appealed.

CRAIG, J. (after stating the facts).

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 carpenterbusiness; 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...