Estate of Lucille M. Horstmeier, deceased, Mary E. Scott, Executor - Page 8




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          property held by a person within a State is a matter of State                
          law.”  Estate of Young v. Commissioner, 110 T.C. 297, 300 (1998)             
          (citing Fernandez v. Wiener, 326 U.S. 340, 355-357 (1945)).  The             
          issue in this case is a factual one.  The parties frame the                  
          question as being whether petitioner has proven that Ms. Scott               
          satisfied the factual requirements of a resulting trust.3  If so,            
          a resulting trust arose in her favor, and only one-half the value            
          of the Glenview house is includable in the taxable estate.                   
               A resulting trust arises when one person furnishes                      
          consideration for property and title is taken in the name of                 
          another person.  See Fowley v. Braden, 122 N.E.2d 559, 563 (Ill.             
          1954).  A resulting trust does not depend on contract or                     
          agreement but arises by operation of law to enforce the presumed             
          intent of the person who furnishes consideration for the                     
          property.  See Prassa v. Corcoran, 181 N.E.2d 138, 140 (Ill.                 


               3 We are aware that the Supreme Court of Illinois has, under            
          certain circumstances, refused to enforce equitable property                 
          rights between unmarried cohabitants on grounds of public policy.            
          See Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979).  We are also              
          aware that the Illinois Appellate Court has interpreted Hewitt               
          to permit the enforcement of equitable property rights between               
          unmarried cohabitants in some circumstances.  See Spafford v.                
          Coats, 455 N.E.2d 241 (Ill. App. Ct. 1983).  But see Ayala v.                
          Fox, 564 N.E.2d 920 (Ill. App. Ct. 1990).  However, in the                   
          instant case, respondent has not raised the issue of whether a               
          resulting trust should be disallowed under Illinois law on                   
          grounds of public policy.  Because petitioner had no occasion to             
          present pertinent evidence or argument on this question, we do               
          not consider it and address only the question of whether the                 
          factual requirements for a resulting trust have been satisfied.              






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