delivered the opinion of the Court:
We think that there can be no doubt whatever of the purpose of the deceased Robert S. Avery to devise to the Smithsonian Institution for the promotion of scientific education, not only such property as he may have had in his own name and under his direct control, but likewise, so far as he might control it, the. property standing in his wife’s name and in controversy in this suit. And we think, also, that it is highly probable that Mrs. Avery sympathized in her husband’s enthusiasm for science, and had similar purposes in reference to her own property, or the property here shown to have been placed under her exclusive control. Rut it is very plain that, whatever may have been her purpose in that regard, she failed to carry it into effect. Whether she afterwards changed her mind, or whether she for some reason postponed the execution of her will, the fact remains that she made no testamentary disposition of this property, in accordance with what would seem to have been the wishes of her husband, and what is claimed to have been the understanding or agreement between them. It is plain that, if there was any agreement or understanding of that kind between the two, it was, as set forth in the affidavit of Avery and the testimony of Shidy, that she was to retain this property for her life; and that she was to make a will, devising it upon her death to the Smithsonian Institution for the scientific purposes specified. This is the only understanding sought to be shown to have existed' between them.
Now, it requires no elaboration of argument or citation-of authorities to show that this understanding or agreement, even if proved beyond any possible doubt, could not be enforced by a court of equity against the objection of the holders of a legal title and the plea of the' statute of frauds, in the absence of any memorandum in writing by which it could properly be evidenced. Such an agreements would simply raise an express trust, which would be null *506and void and incapable of being enforced under the statute of frauds. The trust was that Mrs. Avery should make a certain will; she has made no will of any kind ; and there is no power in the courts to make a will for her.
But this is conceded by the appellee, although both the bill of complaint and the testimony are largely devoted to the establishment of this express trust. The effort is to show that, notwithstanding this proof of an express trust, the money for the purchase of the property in question was paid exclusively by Mr. Avery from his own earnings, and that therefore there was a resulting trust in his favor.
A resulting trust arises by operation of law, when one person buys an estate and pays the purchase money therefor, but takes the deed in the name of another person. The person, in .whose name the deed is taken, becomes a trustee for the person who has paid the money; and the trust so created is exempted from the operation of the statute of frauds by the express provision of that statute itself. But it is well-settled law that this does not apply to the case where the deed is taken in the name of a person, such as a wife or a child, for whom the person who pays the purchase money is under any obligation, legal or moral, to provide. In this case no presumption of a resulting trust arises; and it is incumbent on the person who claims the existence of such a trust to show it by clear, positive and unequivocal proof.
This doctrine, which may be regarded as elementary law, we do not understand to be controverted in this case ; and accordingly the appellee, for whose benefit the resulting trust is now claimed, has undertaken the burden of showing its existence, as it was bound to do, by positive proof to that effect. But we fail to be convinced that it has succeeded in the effort.
The' proof in such case, it has been said, must be clear, positive and unequivocal. 'It must leave nothing to doubtful inference, or to deductions from loose and casual conversations ,o.r ambiguous circumstances. The right to prop*507erty is too sacred to be made dependent upon the doubtful recollection of casual conversations sought to be reproduced long after their occurrence and when the parties to them have passed away, and explanation by those most competent to explain is no longer possible. This is the rule laid down by all the authorities; and we are compelled to hold that, tested by this rule, the testimony of the ■appellee, on whom the burden of proof was imposed, wholly fails in our opinion to establish a case of resulting trust.
The testimony of all the witnesses for the appellee, except one, simply tends to prove that it was the money of Robert S. Avery, and not that of his wife, that was paid . for the property in question. But we assume this to have been the fact, although we do not by any means regard it as satisfactorily proved. As already stated, conclusive proof of it would not establish a resulting trust as between husband and wife. There must be something further than that, some satisfactorily evidence to rebut the presumption of a gift or advancement by the husband to the wife. The only other evidence in that regard, excepting that of the one witness to whom we have referred, is to the effect that the property was sometimes mentioned by Mrs. Avery as their joint property, and that Mr. Aver}'- once or oftener executed a lease of the property in his own name and collected the rents. But it is not unusual for the merest agents to rent property in their names which has been placed in their hands for management, and to collect the rents ; and most assuredly no just inference of joint ownership, certainly no reasonable inference of real ownership in her husband antagonistic to her own can be drawn from occasional expressions used by Mrs. Avery, such as “we,” “us,” “our',' “ our property.” For such expressions there is a greatly more reasonable "and more obvious explanation. On the other hand, the testimony of several of these witnesses goes to show that Mrs. Avery claimed the property.as her own, and that she desired to have the title in herself in order that *508she might control it. And such control,' of course, would be inconsistent with any theory of a resulting trust in her husband.
Only one witness, Mr. Leland P. Shidy — whose opportunities for knowledge, it is true, seem to have been exceedingly favorable — testifies to any agreement or understanding between the husband and wife with regard to this property, or to any circumstances that might be supposed to tend to rebut the presumption of a gift or advancement by the husband to the wife. For, of course, we cannot regard as testimony the affidavit of Robert S. Avery made after the death of his wife, and to which we have already referred as stating most strongly the contention on which the appellee relies. But the testimony of Shidy, even if we assume that his testimouy alone could overcome the sworn answer of the defendants in the case, wholly fails to establish a case of resulting trust. . The portion of this testimony which is strongest for the appellee has already been cited ; and it simply shows that Mrs. Avery took the title to the property because she wished to control it, and with the understanding that she should hold the property during her lifetime, and make a will transferring it at her death to the Smithsonian Institution.
This testimony is corroborated by that of Mr. John F. Cox, if his testimony is admissible, a point which we need not decide here. He seems to have been called in professionally by Mr. Avery to make his. will for him, and also a will for Mrs. Avery. He statés that Mrs. Avery .“ said that her husband had permitted her to take the property in her own name, and that she wished to make a will that would follow out his intentions as to 'his own. property.” And he adds that the reason why he did not draw a will for her was that she. would postpone it until after Mr. Avery's will; that she could make her’s afterwards; and that she knew that he was going to die before she would, since he was so very ill.
Now, all this shows very clearly that .Mrs. Avery re*509garded the property as her own, to be controlled exclusively by herself, but intending to devise it at her death to the Smithsonian Institution. Not'even a life estate was contemplated to be reserved to her husband in the event of his survival of her, for that event seems to have been considered highly improbable by both of them in view of Mr. Avery’s greater years and feebler health, although it was that event which actually occurred. So, instead of being proof of a resulting trust in favor of Robert S. Avery, the testimony shows conclusively that no such trust was intended or contemplated by the parties. If the transaction can be construed as ■ creating any trust whatever, and it is not at all clear that it does create a trust of any kind, the trust is a conventional one, inconsistent with any theory of a resulting trust. Thpre may be cases where, upon the failure of an express agreement, parties may fall back upon, a resulting trust; but that can only be where the resulting trust exists independently of the express agreement and is not inconsistent with it. The failure of an express trust or of a specific agreement in regard to real estate to prove effective does not authorize parties by that failure alone to fall back upon a resulting trust when none was intended in the transaction.
We have no desire to dissent from the statement of the law by the learned justice who heard this case in the court below7, as contained in his very able and elaborate opinion which we find in the record; but we fail to find in the record the testimony which in our opinion is required to support it. •
With reference to the legacy of $ 1,000 given to the appellants by the testator, Robert S. Avery, and which is sought to be forfeited in this proceeding on account of the . alleged disputing of the will by the appellants, it is not seriously controverted by the appellee that the decree of the court below, in that regard must be modified. Forfeiture is not greatly favored in equity under any circumstances ; and this case is not one for the enforcement of a forfeiture. It *510may be suspected that the claim of the appellants to the property in dispute was the very thing against which the testator was solicitous to guard ; but clearer and more unequivocal language for that purpose should have been used to justify a court of equity in decreeing a forfeiture in this case. Claiming property which it is contended did not pass under the will, and which we here hold did not pass under the will, cannot in any proper legal sense be regarded as a disputing of the will.
We aré of opinion that the decree of the Supreme Court of the District of Columbia in this case is erroneous, and that it should be reversed, with costs ; and that the cause should be remanded to that court, with directions to vacate that decree, and to dismiss the bill of complaint. And it is so ordered.