Estate of Lucille M. Horstmeier, deceased, Mary E. Scott, Executor - Page 9




                                        - 9 -                                          
          1962); Kane v. Johnson, 73 N.E.2d 321, 324 (Ill. 1947).  Unless              
          there is evidence that a gift was intended from the payor to the             
          person taking title, it is assumed that the payor intended to                
          keep the beneficial interests of the property for which he or she            
          paid.  See Prassa v. Corcoran, supra.  The fact that the payor               
          borrowed from the person who took title does not prevent a                   
          resulting trust from arising.  See Towle v. Wadsworth, 35 N.E. 73            
          (Ill. 1893).  Nor does the fact that the agreement with respect              
          to the loan and purchase of the property was oral rather than                
          written.  See id.  Parol evidence may be used to prove a                     
          resulting trust.  See Ill. Rev. Stat. ch. 59, sec. 9 (1975) (now             
          740 Ill. Comp. Stat. 80/9 (West 1993)); Kohlhaas v. Smith, 97                
          N.E.2d 774, 776 (Ill. 1951).  A resulting trust arises at the                
          instant title is taken, or not at all.  See Prassa v. Corcoran,              
          supra.                                                                       
               The burden of proof is on the party seeking to establish a              
          resulting trust, and, because recorded legal title is being                  
          rebutted, the standard of proof is “clear, convincing and                    
          unmistakable.”  In re Estate of Wilson, 410 N.E.2d 23, 27 (Ill.              
          1980).  A resulting trust will not be sustained where the                    
          “evidence is doubtful or capable of reasonable explanation upon              
          any theory other than the existence of a trust”.  Kohlhaas v.                
          Smith, supra at 776.                                                         
               Petitioner has offered the claim filed by Ms. Scott and the             
          decision of the Probate Division of the Circuit Court approving              




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011