the chancellor, allowed that sum to be applied to Malone's claim for the funeral expenses of Mrs. Malone. The balance of such funeral expenses, amounting to $1,540.60, was disallowed upon the ground that it was a voluntary payment and not intended as a claim against the estate of Mrs. Davis or Mrs. Malone. This forms the basis of appellee's cross-error.

Of this union there was born one daughter,, to $770.60, and on account of the last illness Nellie, the appellant, who afterwards mar- and death of his wife, Mary, the sum of ried Earl Rolofson. When Malone went to $1,400. The rents during the last year of work on the farm for Davis the latter was Mrs. Malone's life amounted to $630, and, in poor health and Malone assumed the man-in stating the account, the master, and later agement of the farm. In 1888 Davis died. Thereafter Mrs. Davis left everything to Malone. He paid all bills for the household and for the operation of the farm, including taxes. There is no evidence that he received pay as a farmhand, but all income from his labor and the produce of the farm went into a common fund, which was applied to the personal expenses of Mrs. Davis and Malone and his wife, the mother of appellant. Malone, after he assumed charge of the farm, built a wagon shed and machine shed and cleared some timber pasture, which according to the testimony of witnesses was between 60 and 90 acres. He rebuilt fences and put clover upon the farm in the poorer soil, and brought up the value of the farm, according to witnesses, to the amount of about $20 per acre. In 1892 the Scott county land was sold for the sum of $9,000 to Fred Boester. One thousand dollars was paid in cash, as Malone told Boester that his mother-in-law and wife were buying a farm in Macon county and they needed $1,000 to pay down on it. The land in question here was purchased in the latter part of August, 1892, a deed thereto being made on March 1, 1893. This deed was taken in the name of Malone. On the same date Malone and his wife signed a deed for an undivided one-third interest to Mrs. Davis. Malone attended to all transactions concerning the purchase of the land in Macon county. Mrs. Davis died in 1905, intestate, leaving Malone's wife as her only child and heir at law. She died seized of a one-third interest in the land in question. In January, 1914, Mrs. Malone died intestate, leaving her husband and appellant, her only child and heir at law.

The bill alleges that Mrs. Malone was the equitable owner of the entire tract of land purchased in Macon county by reason of the fact that as heir of her father she was owner of the Scott county land upon his death, subject to her mother's dower interest, and the further fact that the money arising from the sale of the Scott county land went into the purchase of the land in Macon county. The record shows that the $9,000 arising from the sale of the Scott county land was all put into the purchase of the Macon county land. This land was purchased for $13,600, and $4,600 of the purchase price was represented by a mortgage given back to the grantor, signed by Malone and his wife. This was later paid off by Malone out of the receipts from the Macon county land. In 1896 Malone and his wife joined in a mortgage of this land to Henry Capen for $2,200, which was later paid off.

Malone, on the death of Harriet C. Davis,

At the time of the filing of the bill, and for some years prior thereto, appellant and her husband were, and had been, renting this farm from appellee. The accounting taken by the master covers the period from 1914 until 1922, when the bill in this case was filed. It finds, and the decree holds, that considering all receipts from the land and expenses of the management thereof during that period, appellee, as owner of two-thirds of the land and a dower interest in the other one-third, owes and should pay to appellant, as owner of the last-mentioned one-third, subject to appellee's dower interest, the sum of $4,070.79. The master also recommended partition in accordance with the prayer of the cross-bill. This recommendation was adopted by the chancellor, who decreed accordingly.

[1-5] The principal question in the case is whether Mary S. Malone, mother of appellant, intended, at the time the land in Macon county was purchased, that appellee, her husband, should have the beneficial interest therein, or whether a resulting trust arose from the fact that the money arising from the Scott county farm was used to purchase this land. A resulting trust arises where the legal title or estate to property is transferred to one person with the intention that the beneficial interest shall be in another, as where the purchase price of the property is furnished by one other than the person in whose name the deed is taken, and no intention that the beneficial interest shall pass to the holder of the legal title is shown. Such a trust arises the instant the legal title is taken, if it arises at all. Whether or not such trust arises depends on the intention of the one who furnishes the purchase price with reference to the manner of the taking of the title. It arises, not out of an agreement, but out of a presumed intention that while the title to the property be taken in another yet the beneficial interest is to be in the payor. The payment of the consideration raises a prima facie presumption in favor of a resulting trust. This presumption, however, may be rebutted by parol proof of an intention on the part of the payor that the grantee shall take the beneficial interest and not merely the legal title. The intention of the payor is

(146 N.E.)

"She said that she had turned the land over to Bob and she expected him to keep it; that his eyesight was bad and he would probably go blind and would have it to fall back on. She said that in her home. I was working there for him."

stances shown in evidence. These rules are, lone, testified to a conversation which he had well settled in this state, as is shown by the with Mrs. Malone in reference to the land in following cases: Rush v. Rush, 304 Ill. 558, Macon county after its purchase. He tes136 N. E. 808; Dodge v. Thomas, 266 Ill. tified: 76, 107 N. E. 261, Ann. Cas. 1915C, 1097; Lord v. Reed, 254 Ill. 350, 98 N. E. 553, Ann. Cas. 1913C, 139; Pickler v. Pickler, 180 Ill. 168, 54 N. E. 311; Goelz v. Goelz, 157 Ill. 33, 41 N. E. 756; Cook v. Patrick, 135 Ill. 499, 26 N. E. 658, 11 L. R. A. 573; 3 Pomeroy's Eq. (3d Ed.) § 1031. The rule also is, that where the gift is the voluntary act of the grantor and expresses his desire and purpose, the existence of a fiduciary relationship between the grantor and grantee will not affect the conveyance of the beneficial interest unless thereby undue advantage is taken of the grantor. Winkelman v. Winkelman, 307 Ill. 249, 138 N. E. 637; Pillsbury v. Burns, 301 Ill. 578, 134 N. E. 103; Lang v. Lang, 284 Ill. 148, 119 N. E. 963.

There is no contradiction of this statement, nor is there any evidence of any contrary statement made on her part. The whole evidence tends to show that both Mrs. Malone and her mother had great confidence in appellee. Moreover, there was no claim during the lifetime of Mrs. Malone that appellee was not the owner of the beneficial interest in the land, and, in fact, no such claim was made by appellant in this case

until 1922. The evidence in the case con

the chancellor was not right in finding that the presumption of trust relationship was overcome. Cases cited by appellant not herein referred to present no different rule of law but were decided on records showing a want of intention to transfer the beneficial interest in the property to the parties sought to be held as trustees.

[7] Appellee should not be credited with the payment of funeral expenses beyond the credits given by the decree. There is no evidence that they were paid with any thought of a claim against the estate of either Mrs. Davis or Mrs. Malone. They were voluntary payments.

The decree of the chancellor will be affirmed.

Decree affirmed.

[6] The question to be determined from the cerning Mrs. Malone's intention to transfer evidence in this case is the intention of Mary the beneficial interest to appellee is undisS. Malone, mother of appellant, in permit-puted. We are therefore unable to say that ting the deed to the Macon county land to be taken in the name of appellee, her husband. The chancellor found that it was the intention of Mrs. Malone, upon the sale of the Scott county farm, that her portion of the proceeds should be received by appellee and applied to the purchase of the Macon county farm, and that the title to the latter land should be taken in the name of appellee; that one-third thereof should be deeded to Mrs. Davis, her mother, and the balance should be the separate property of appellee. The preponderance of the evidence in the case rebuts any presumption that a resulting trust arose upon the purchase of the Macon county land in favor of Mrs. Malone. The undisputed evidence shows that when appellee went to the farm in Scott county it was badly run down; that subsequent to his marriage with Mary S. Davis he received no wages as an employee; that he built up the land; that at all times after the purchase of the Macon county land he managed and improved it. This would not be sufficient evidence to overcome the presumption, however, that the proceeds of the Scott county land were used in the purchase of the Macon county land for the benefit of Mrs. Malone, if this were all the evidence of the intention on the part of Mrs. Malone that the beneficial interest to the property should be taken by appellee. The facts touching that matter are these: In March, 1893, Mrs. Malone joined in a deed with appellee of one-third of the Macon county land to her mother. She must be held to have known that at that 2. Elections time appellee had title to the land. also joined with appellee in a mortgage back to the grantor of the Macon county land in the sum of $4,600, and in 1896 she joined in another mortgage for $2,200 to Henry Capen. William E. Gregory, an uncle of Mrs. Ma

She

(315 III. 164) (No. 16329.) Dec. 16, 1924.

ANDERSON v. PIFER.
(Supreme Court of Illinois.
Rehearing Denied Feb. 5, 1925.)

1. Domicile 2-"Permanent abode" neces-
sary to constitute "residence."

66, a permanent abode is necessary to conUnder Smith-Hurd Rev. St. 1923, c. 46, stitute a residence; "residence" and "permanent abode" being synonymous terms.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Permanent Abode; Residence.]

76-Right of college student to vote at place of college question of fact.

Whether a college student is entitled to vote because his permanent abode is at the place of the college is one of fact; the question being whether his residence there is bona fide, with no intention of returning to parental home.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. Elections 76-Rule as to college stu- takes were made in counting the votes; that dent's right to vote at place of college stated. votes were counted for Pifer which should Mere presence of student at place of col- have been counted for Anderson; that lege is not sufficient to entitle him to vote, but there were several ballots with distinguishhis residence there must be bona fide, with no ing marks counted for Pifer that should intention of returning to the parental home. not have been counted for him, and that 4. Elections 76-College students who re- Pifer received a less number of legal votes gard college town as home are legal voters. and Anderson a greater number. The petiCollege students entirely free from parental tion prayed for a recount, and that a certificontrol, who regard the college town as their cate be issued to Anderson as having been own home, and who have no other home to re-elected supervisor. The answer denied Anturn to in case of sickness or other affliction, derson received the greater number of legal are legal voters. votes, denied ballots were improperly count

5. Domicile4(2)-Question of residence is ed for Pifer, and alleged that 17 students atlargely one of intention.

intention.

tending Eureka College, in said township,

The question of residence is only largely of had voted illegally at the election; that their ballots had been counted for Anderson, and said alleged illegal voters were named in the ballots were recounted and a judgment enAt the hearing on the petition the

answer.

6. Elections 293 (2)-Voter may testify as to intention with reference to residence, but such testimony is not conclusive. In action involving residence of voter altered finding Anderson received 388 legal votes and Pifer 386 legal votes. Anderson leged to have wrongfully voted, the voter may testify as to his intention, but such testimony was adjudged elected. This appeal is prosis not conclusive. ecuted from that judgment.

7. Elections 291-Rule as to burden of proof in election contest stated.

The burden of proof is on contestants to show that majority of the legal votes cast at an election were in his favor, and production of ballots cast for him raises presumption prima facie that they were legal votes, but defendant may rebut presumption by showing that ballots were not cast by legal voters.

8. Elections 295 (1)-Evidence held to show college students not legal voters of college town in which they voted.

In election contest, evidence held to prove that college students who voted in college town were not permanent residents thereof, and therefore were not legal voters, in view of the fact that they had homes elsewhere.

Appellant says that the decision of this case largely depends upon the correctness of the trial court's ruling in holding students to be legal voters and counting their ballots. The students whose right to vote is challenged were young men and women attending college in Eureka, which is in Olio township, Woodford county. Two of the students whose votes were challenged were held by the county court to be illegal voters. Fifteen other students whose right to vote was challenged by appellant's answer were placed on the

stand by him and interrogated as to their residence qualifications. We will not set out the substance of the testimony of all of them, but have selected the testimony of 3 as typical of the 15 students.

Cora B. Holloway testified she came from Appeal from Woodford County Court; W. St. Louis to Eureka College in September, H. Foster, Judge.

Petition to contest election filed by James E. Anderson against Frank Pifer. Judgment for contestant, and defendant appeals.

1922. She had lived with her father and mother in St. Louis before coming to college. After coming to college she lived in a dormitory part of the time and a sorority house part of the time. She worked as secretary to the college president, for which she Barnes, Magoon & Horton, of Peoria, for was paid. During the summer vacation of appellant. 1923 she lived at her parents' house at St. Orman Ridgely, of Eureka, for appellee. Louis and did stenographic work for pay.

Reversed and remanded.

She had a room at her parents' home and called it "my home." She testified she regarded Eureka as her permanent home, but after school was out she would probably go to Chicago. She had borrowed money from others than her parents to help pay for her schooling.

FARMER, J. At the election April 1, 1924, in Olio township, Woodford county, Frank Pifer was a candidate on the Democratic ticket for supervisor, and James E. Anderson was a candidate on the Republican ticket for the same office. The result of the election, as declared by the judges, was that Dan Ogle testified he came from KeithsPifer received 395 votes and Anderson 391 burg, Ill., to the college in September, 1920. votes. A certificate of election was issued to His father was dead, but his mother lived Pifer, and he qualified as supervisor. April and maintained a home in Keithsburg. She 23 Anderson filed a petition in the county is a widow. He spent most of his Easter, court to contest the election. The petition Christmas, and summer vacations at his alleged, in substance, that numerous mis-mother's. Before coming to school he

(146 N.E.)