delivered the opinion of the court:
That appellant received $400 from her father’s estate in her husband’s lifetime, seems to be uncontroverted, the appellee testifying to the same fact. Of this money she loaned $343.50 to her husband, the note and mortgage being dated January 18, 1869, and it seems that no interest was ever paid by him on this loan. The note and mortgage were made to her son Albion Crane, who, it is conceded, had no interest in the same, but merely held the same in trust for his mother. Within a year after Levi Crane’s death Albion filed his bill to foreclose this mortgage, to which the appellee and all the heirs were made parties, and a sale was had on June 12, 1880, there being due, according to the decree of sale, the sum of $553.90. Albion Crane bought this forty-acre tract at the sale and afterwards assigned his certificate to appellant, who in due course received a deed for the land. The debt being hers, she paid nothing besides, except the costs, amounting to $58.05. She had an undoubted right to buy this tract of land so sold and take absolute title to herself. It is claimed by appellee that appellant had funds of the estate sufficient to pay off this mortgage, and should have done so. Whatever her duty might otherwise have been, the evidence fails to show that she had received sufficient funds to pay this debt, or any considerable part of it, but that she had paid out for funeral expenses, taxes and claims against the estate a large part of what she had then received. We are unable to see any reason why her right and title to this tract, the south-west quarter of the south-east quarter of section 22, are not perfect. No resulting trust arose in respect thereto in favor of appellee and thé other heirs. The purchase money belonged to appellant, and not to them.
The note of January 5, 1876, made by Levi Crane for $225, payable in five years, to the trustees of schools, and secured by mortgage on this same tract then already mortgaged to Albion Crane, and also on the south-west quarter of the south-west quarter of section 23, was foreclosed after it became due after Crane’s death, and a decree of sale of the forty-acre tract in section 23 was entered to pay the amount, $272.03, found due. The appellee and all the heirs were made parties to that suit. Appellant bought at the sale, but Graham, a probate judgment creditor in the amount of $241.21, redeemed, and as to a one-seventh interest therein one Jaques, by virtue of a judgment held against W. H. Crane, one of the heirs, also redeemed. At the redemption sale of Graham, N. C. Bicker bought and received a certificate of purchase for the tract, less the one-seventh interest redeemed by Jaques. After obtaining his deed, and in 1889, Bicker conveyed to appellant, but whether with or without Jaques’ interest does not appear. Mrs. Kyle testified that when she bought at the foreclosure sale under the mortgage to the trustees of schools she had no money, and instead of paying the purchase price in money she gave her note to the trustees, and secured it by mortgage on the tract she had obtained by the sale under the mortgage to her son Albion, and that when Graham’s redemption sale occurred, not having the money to buy at that sale, she got Ricker to buy for her, and paid him interest on the amount for a number of years, completing the payment to him only a year before this suit was brought. This tract was the homestead, to the rents and profits of which, after the death of her husband, appellant, as his widow, was entitled so far as appellee was concerned, she, appellee, having arrived at her majority and married, and established a home of her own elsewhere, before the death of her father. The evidence shows that at Crane’s death this forty acres was worth about the sum of $1000 only.
The court found, and we think correctly, that appellant had not abandoned her homestead but was entitled to it. But we think the decree was erroneous in setting off such homestead, inasmuch as she had, before the commencement of the suit, obtained the title in fee, and, so far as appellee is concerned, the homestead interest had become merged with the fee in appellant. Appellee had no interest in the rents and profits of the homestead tract from and after her father’s death, and even if appellant used such rents and profits to pay the purchase price for the land at the judicial sale, or to re-pay borrowed money used for that purpose, that fact could create no interest in appellee nor give rise to any resulting trust in her favor. And, as we have seen, appellant acquired title in fee to the tract mortgaged to her son Albion, and she was, of course, after that time entitled to the rents and profits of that tract also. There was, therefore, but one other tract in the rents and profits of which appellee had any interest, and appellant offered in her answer to account for the rents and profits of that tract.
It was error to charge appellant with any rents and profits after she obtained her title to the tract sold to pay her mortgage debt, accruing from such tract. So, also, was it error to require her to account to appellee for any of the rents and profits of the homestead tract. By the statute the homestead continued after the death of Crane for the benefit of his widow and of the children until the youngest should become twenty-one years of age; but this benefit did not extend to appellee, who was no longer a member of the family but had a family of her own. The homestead estate devolved upon the widow, by operation of law, eo instcmti upon the death of her husband. (Jones v. Gilbert, 135 Ill. 27.) Nor was appellant entitled to any credit for taxes, as allowed by the court, which she had paid on said homestead tract, nor upon the other tract after she acquired title. It follows, also, that the decree is erroneous in directing the sale of these two tracts of land, or any part of them, subject to homestead, or otherwise. It therefore becomes unimportant to consider the contention of appellant tha't it was erroneous to order the sale of that part set off as a homestead, subject to the estate of homestead.
It is claimed, however, that appellant bought in the land, when it was sold, for the benefit of her children as well as of herself, and that she had so stated at the time and had practically so admitted when called as a witness by the complainant. Inasmuch, however, as the Statute of Frauds is pleaded, no express trust could be established unless manifested and proved by some writing signed by her. It is not pretended that there was any written evidence of the trust. Nor do we think that there was sufficient evidence to establish an express trust if the Statute of Frauds had not been pleaded. It is apparent from the testimony of appellant that she was an ignorant woman, and that all that she meant by her statements as a witness that she bought the land for herself and children was, that her children, as her only heirs-at-law, would get it at her death. But taking her testimony altogether, it is clear, we think, that she bought the land with the intention of acquiring title thereto in fee in herself.
It is, however, contended, that appellant occupied a fiduciary relation toward appellee, and that it was her duty to apply the rents and profits to the discharge of the incumbrances upon the property, but that, taking advantage of her position and failing in this duty, she bought the land and undertook to acquire title thereto in her own name, and that a constructive trust arises in favor of the heirs, and that a court of equity will hold her to be a trustee of the legal title for the benefit of appellee and the other heirs. As before shown, however, it was not her duty to account to appellee for the rents and profits, except as to the tract respecting which she was ready and willing and offered to account; and there is no sufficient proof in the record to show that, as to the. rents and profits accruing from said last named tract, any part of them was used in the purchase of either of the first mentioned tracts. Even if any of the heirs other than appellee were entitled to any interest in the rents and profits of the homestead tract, they have made no complaint, appellee being the only one of the seven children to make any complaint of the acts of their mother in dealing with the property. Besides, it is not made to appear whether or not there was anything left of such rents and profits after deducting the necessary expense of the support and maintenance of the widow and her minor children, if any of them were minors. There is no sufficient evidence from which to deduce a constructive trust.
If appellee were entitled to an accounting for the rents and profits accruing from the tract of land purchased by appellant under the sale under the mortgage or deed of trust to Albion Crane before she obtained title thereto, all such right is barred by lapse of time and laches, as she delayed upwards of "fourteen years in bringing her suit.
The court properly struck out the allowance to appellant, as a credit, of the money paid by her, and the interest thereon, for the house and lot in Champaign. Appellee makes no claim to that property, and it clearly appears that it belongs to appellant. Nor do we think the credit of §100 allowed to appellant which she paid on the alleged claim of William Crane was properly allowed. The evidence does not show that it could have been enforced in any way to the prejudice of appellee. Nor should appellant have been allowed anything for tiling the land or other improvements made by her. (Wheeler v. Dawson, 63 Ill. 54; Bedford v. Bedford, 136 id. 354.) The decree was also erroneous in allowing her a share of the rents accruing from the forty-acre tract to which she has no title for or on account of her dower interest therein. As she had made no demand she was not entitled to any part of the rents and profits, but they belonged to the heirs. Atkin v. Merrell, 39 Ill. 62; Strawn v. Strawn's Heirs, 50 id. 256; Rawson v. Corbett, 150 id. 466; Bedford v. Bedford, supra.
The decree of the circuit court is reversed and the cause is remanded, with directions for a re-statement of the account and the assignment of dower in the land, except the two tracts belonging to her, and for a decree in conformity with the views hereinbefore set forth.
Reversed and remanded.