Hilt v. Simpson

Mr. Justice Vickers delivered the opinion of the court: This case was heard on evidence introduced in open court. The judge who tried it saw the witnesses and had opportunities .of determining their credibility that are not open to us. Under such circumstances this court will not reverse a case on the evidence unless the finding is against its clear weight. (Fabrice v. Von der Brelie, 190 Ill. 460; VanVleet v. DeWitt, 200 id. 153; Dowie v. Driscoll, 203 id. 480; Village of St. Anne v. Coyer, 223 id. 96.) Such is not the state of this record. We have read all of the evidence and we are entirely satisfied with the conclusion reached by the court upon the facts. Plaintiff in error insists that his defense under section 9 of chapter 59 of Hurd’s Revised Statutes of 1905 is valid, even conceding that the weight of the evidence establishes a parol promise on his part to hold the title in trust and to convey to his sisters on the death of their father, because there is no written evidence of such trust as required by the statute. Assuming the facts to be as found by the court below, plaintiff in error’s position cannot be sustained. The section of the statute relied on by plaintiff in error is as follows : “All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing; or else they shall be utterly void and of no effect: Provided, that resulting trusts or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol.” Under the facts found, this case falls under the proviso in the above statute as construed by this court in Stahl v. Stahl, 214 Ill. 131, and previous decisions of this and other courts cited and reviewed in the above case. This case can not be distinguished in principle from Stahl v. Stahl, supra, and the line of cases "upon which that decision rests. In that case, as in this, the ancestor made a conveyance to one of her children with the understanding that the grantee would divide and distribute the estate equitably between the brothers and sisters of the grantee. After the death of the grantor the grantee conveyed to another of- his brothers, who had full notice of the fiduciary relations between the mother and the first grantee. Upon a full review of the cases it was there determined by this court that the facts presented a case in which a court of equity may properly raise a constructive trust and convert the holder o'f the legal title into a trustee for the benefit of all the children of the deceased mother. If the authorities in this State were again reviewed by us it would be but a repetition of what we have already said in our former decisions upon a state of facts essentially like the facts in this case. For the reasons given in Stahl v. Stahl, supra, and upon the authority of that case, the decree of the circuit court of Madison county is affirmed. p,cr5, aMrmed.