Appeal from the Circuit Court of Sangamon County; the Hon.
Simon L. Friedman, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 30, 1984.
Defendant appeals from an order of the circuit court of Sangamon County entered at the conclusion of a trial at bench. The substance of the order declared the plaintiff to be the legal and equitable owner of two parcels of real estate located in the city of Springfield but subject to resulting trusts in favor of the defendant. The court reduced the resulting trusts to monetary amounts which were ordered paid to the clerk of the circuit court by the plaintiff and held until the judgment order became final. It was further ordered that the defendant vacate the premises and remove his personal belongings therefrom and that thereafter the defendant was permanently enjoined from entering upon the premises.
Upon application by the defendant this court stayed the order and judgment pending appeal.
A summary of the evidence adduced at trial follows. Plaintiff and defendant became acquainted about 30 years ago. In 1975 they met again in Springfield. Defendant was in ill health and plaintiff agreed to care for him. He then moved into plaintiff's rented house in July 1976. Subsequently they agreed to move to a new house. On May 25, 1978, a house at 2100 South Fifth Street in Springfield, one of the parcels of real estate involved in this litigation, was exposed for sale at public auction. Plaintiff bid $50,300 and the house was struck off to her. She signed the purchase contract and made a down payment of $10,000 with her personal check. The transaction was closed about a month later, and the balance was paid by a purchase money mortgage obtained by plaintiff from a Springfield bank. This loan was afterwards renegotiated and reduced through a series of transactions which culminated in a conventional mortgage executed by plaintiff in October 1979. At trial plaintiff admitted that $8,000 of the down payment was provided by defendant. However, the trial court found that all mortgage payments except one made by the defendant had been made by the plaintiff.
Plaintiff and defendant moved into the Fifth Street house and resided there together until May 1983. The trial court found that the relationship was that of "housekeeper/companion" and not one of cohabitation. Therefore, the court concluded that no fiduciary relationship arose between the parties. During the time in which they resided in the house, the parties purchased various items of personal property, including many antiques.
The other parcel of real estate involved here was located at 1113 South Eleventh Street in Springfield. Defendant and Manning Briggs purchased the property at public auction in 1980 for $16,100. Briggs signed the contract and defendant furnished him with one-half the purchase price, or $8,050. Before the closing, plaintiff and defendant conferred and decided to purchase the property themselves. Briggs agreed and returned defendant's $8,050 to him, and it was applied on the purchase price. Plaintiff borrowed a like sum from a local bank and applied it on the purchase price. Title was placed in a land trust with a local bank as trustee, and plaintiff was named as the sole beneficiary.
The genesis of the instant litigation was plaintiff's demand that defendant leave the Fifth Street house. She testified that she did this because defendant was using the house as a law office and had used profane language against her and had threatened to kill her. She claimed to be the owner of the house, although she admitted, as indicated previously, that defendant had supplied $8,000 towards the down payment. She also admitted that defendant owned some personal property in the house. She further testified that she had worked during the relationship and had earned $16,500 to $18,000 annually, from which the mortgage payments had been made.
Defendant's version of the source of funds for the transactions differed considerably. He claimed that the funds came from a trust which he had created for his children. According to his testimony, he drew the trust instrument himself in 1948 when he was a student in law school. There were no witnesses to the instrument and no original nor a copy were ever produced. He claimed to have made periodic contributions toward the trust over the intervening years until 1972, when he was gravely ill, and then turned the trust assets over to James Griffith.
Griffith testified that he accepted the assets, which consisted of $33,500 in cash and items of valuable coins and jewelry. He also signed an acceptance of trust. According to him, the assets were in an attache case which he kept in the trunk of his car for two months and then in an attic above his garage from 1973 until 1978.
Griffith further testified that he discussed the trust with the plaintiff and the defendant in late 1977 or early 1978. At that time the trust agreement was signed by the plaintiff together with a receipt acknowledging her acceptance of the trust assets. According to his version of the conversation, plaintiff and defendant would purchase a house with the trust assets and the house would be held in trust for the benefit of defendant's children.
Plaintiff denied any knowledge of the existence of the trust and denied any conversations about it. Defendant produced several witnesses as to conversations with plaintiff and defendant concerning the trust. However, it was established that all of these witnesses were clients of the defendant.
In its order the trial court found that no express trust existed. This is the first issue raised by defendant on appeal.
Although defendant could present no written evidence of a trust in favor of his children, a trust in personal property may be established by parol evidence. (Catherwood v. Morris (1931), 345 Ill. 617, 178 N.E. 487.) In order to impress a trust upon property by parol evidence, it is essential that the facts be established by clear and convincing proof. (Knapp v. Hepner (1957), 11 Ill.2d 96, 142 N.E.2d 39.) A trial court's finding as to the existence of a trust will not be disturbed on review ...