(dissenting):
I do not join the opinion of the Court because I view the totality of the evidence as less than clear and convincing that a trust should be imposed on the subject property.
*1118The majority opinion recounts as clear and convincing evidence the “personal and financial relationship between Ruth and her partially disabled brother,” the “intermingling of their financial assets,” and the “history of the sale and purchase of these houses.” However, the most that can be said of the general, unspecific nature of that evidence is that it might give rise to some inference that they made a joint investment in the subject property. Simply an inference is not sufficient. The evidence must be clear and convincing. What the evidence relied upon lacks in clear and convincing quality lies in the absence of any evidence whatsoever that any of Jack’s funds were expended to make the purchase, or were otherwise invested in the property.
The record clearly reflects that Jack had a joint tenancy interest with Ruth in the family home on Fourth East Street, which he traded for a similar interest with Ruth in the Wall Street property. Upon sale of the Wall Street property, the record is silent as to any clear disposition of any monetary sum representing Jack’s interest therein. Ruth then acquired the Ninth East Street property in her own name. She subsequently sold it and acquired the subject property on Sixth South Street in her own name.
Wholly absent from the record is any documentary evidence that Jack contributed any of his own funds to the Ninth East or the Sixth South property. Oral testimony under such facts and circumstances as exist in this case fails to meet the “clear and convincing” standard of proof that is required to vary the terms of a written instrument.
I deem it to have been incumbent upon Jack to have traced the expenditure of his own funds into the subject property. This he failed to do. From the standpoint of the record before us, the last clear evidence of any interest Jack had in properties owned by Ruth was at the time of the purchase of the Wall Street property. This was two transactions prior to the purchase of the property in question. Any number of explanations could be made as to what disposition was made of Jack’s proceeds, if any he had, from the sale of the Wall Street property, but the Court is not free to conjecture.
I would vacate and set aside the judgment of the trial judge and remand for the purpose of requiring the executor to distribute the property of the estate of the deceased in accordance with the terms of the will and codicil.
HOWE, J., concurs in the dissenting opinion of HALL, C.J. HOWE, Justice(dissenting):
I concur in the dissenting opinion of Chief Justice Hall. In addition, I make the following observations concerning the evidence:
I agree with the statement in the majority opinion that a resulting trust arises when it is proven that one party paid the purchase price for property but another party was given legal title. Although the trial court found that that happened in this case, the record reveals no competent evidence to support that finding. The plaintiff was unable to adduce any evidence of who was paid the $37,000 cash which was received for the sale of the Wall Street property, or where those funds went. The plaintiff was disqualified from testifying as to those matters under § 78-24-2(3), U.C.A. 1953, our Deadman’s statute. The real estate broker who handled the sale of the Wall Street property was called as a witness but all that he was able to testify to was that the property was sold for $37,000 cash. Neither could he remember nor did he have documentary evidence as to where the money went or to whom it was paid. It could not be traced into the property at 1513 South 9th East nor into the property later purchased at 523 East 6th South. The evidence did establish that when Jack and Ruth purchased the Wall Street property they assumed a $16,000 mortgage which Ruth retired with her own funds.
All of the testimony adduced by the plaintiff to establish a resulting trust was either so vague or indefinite that only by *1119supposition could it be concluded that the proceeds from the sale of the Wall Street property went into the 9th East home and then later into the 6th South property. For example, the home owners’ insurance policy on the 6th South property showed Jack as well as Ruth as an insured, but because the policy also insured the personal property of each of them, this designation is not probative of any ownership by Jack in the real estate. Secondly, when the 9th East property was purchased the real estate broker had a conversation with Ruth, but his recollection of what she said was so vague and inconclusive that it does not rise to the level of proving a resulting trust. The broker was asked whether he discussed “the way the title to the property she was buying at 9th East was to be taken.” He answered:
A. I did. I can’t repeat verbatim what I said back in these [sic] years ago but as I recall the gist of the conversation was “Jack and your brother are together in this thing.” And she said, “Yes, don’t you worry about it. I will handle it,” and she said, “I want the thing in my own name.” I said, “Fine. How are we going to arrange that?” She said, “We will just do it in my name.” I said, “If that is all right with Jack, that is all right with me.”
Another fact relied upon by the plaintiff was that in recent years Jack had turned over to Ruth all interest, dividend and social security checks which he received. She deposited them in her account and used them for paying utilities and other living expenses. There was no evidence that any of this income of Jack went into any capital expenditure such as one of the houses.
If this case is to be decided by indulging in inferences, one can just as easily infer that Ruth put the title of the 9th East home in her name only because she paid for it with her own funds. Because she had retired the $16,000 mortgage on the Wall Street property with her own funds, she presumably would have been entitled to the greater share of the $37,000 received from its sale. The evidence was undisputed that Ruth had other money of her own which she could have added to her share of the proceeds of the Wall Street property and purchased the 9th East property.
The burden was upon Jack to establish the existence of a resulting trust by clear and convincing evidence. I conclude that he has fallen short of that mark.