for machinery and supplies placed on said leasehold by said complainants and paid for by them." The positive proof in this record given by Young as a witness is to the effect that he wrote the statement referred to as exhibit "F" on June 6, 1911, on verbal information and facts furnished him by C. S. Ewing and Harris, and that J. G. Ewing and Queen were not present when the statement was made. Young clearly shows in his testimony that he knew none of the facts from his own personal knowledge. The plaintiffs in error are incompetent witnesses against the minor defendant and the other heir and the widow of the deceased, and the record discloses clearly that the facts were furnished by two of these parties and out of the presence and without the knowledge of Queen. It is the duty of chancellors, in cases of this character, to specially guard the interests of minors and widows. Our statute on evidence protects them, when defending as heirs of a deceased person, against such incompetent testimony, when properly invoked. We hold this stipulation is incompetent against the minor and that it was error to permit it to be admitted against her, although the stipulation was signed by the guardian ad litem.

The court in its final decree did not declare what the interest of each plaintiff in error was in the amount of his lien against Queen's leasehold interest. If on another hearing it is found that Queen was indebted to the plaintiffs in error, there should be a finding, also, how much of that amount is due each one of the plaintiffs in error, and also how much, if anything, J. G. Ewing was indebted to such partnership for his failure to pay the full amount of the expenses. Under the proofs in the record it appears that he has not paid his full share of such expenses, and there should be a complete adjustment of all these matters, not only between plaintiffs in error and defendants in error, but also of the rights and interests of the plaintiffs in error among themselves, as they may be shown on another hearing.

There are other errors assigned and discussed in the record, but we do not deem it of sufficient importance to consider them in view of the fact that there must be another hearing.

For the errors aforesaid the judgment of the Appellate Court and the decree of the lower court are reversed and the cause remanded, with directions to set aside the stipulation signed by the solicitors aforesaid as to the guardian ad litem and minor defendant and to reconsider the cause on any competent testimony the parties hereto may offer on a further hearing.

Reversed and remanded, with directions.

(No. 13951. Decree affirmed.)

LUTHER C. STREETER et al. Appellees, vs. MARY E. GAMBLE et al. (HORACE M. CAMPBELL, Appellant.)

Opinion filed June 22, 1921.

1. TRUSTS-fraud must be present to give rise to constructive trust. To establish a constructive trust there must be some element of fraud, either positive or constructive, which existed at the time of the transaction, or a confidential relation and influence, by virtue of which one has obtained the legal right to property which he ought not by the rules of equity and good conscience to hold and enjoy.

2. SAME-evidence to establish constructive trust must be clear and convincing. Where it is sought by parol evidence to disturb long-standing titles and establish a constructive trust the courts require such convincing proof as leaves no reasonable doubt of the existence of the facts; and there is added force to the rule where the delay has been so long that the death of witnesses and the loss of evidence render it practically impossible to make a defense.

3. SAME when cross-complainant, because of long delay, is not entitled to set up constructive trust. In a suit by executors asking the court to appoint them as trustees under a will which provides for the creation of a trust estate and the payment of the income therefrom to the testator's son during his life, the son cannot maintain a cross-bill setting up a constructive trust by allegations that he had conveyed the property to his father upon the father's prom

ise to re-convey to him when the son's financial difficulties were settled, where more than fifteen years has elapsed since said settlement was made, during eleven years of which period the father was living.

APPEAL from the Circuit Court of Kankakee county; the Hon. ARTHUR W. DESELM, Judge, presiding.

E. P. HARNEY, for appellant.

J. BERT. MILLER, for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The appellees, Luther C. Streeter and Edwin Gamble, Jr., executors of the last will and testament of Francis S. Campbell, deceased, filed their bill in this case in the circuit court of Kankakee county, making Mary E. Gamble, heirat-law, and the beneficiaries under the will, including the appellant, Horace M. Campbell, defendants, and asking the court to appoint complainants trustees under the sixth clause of the will, which devised 172 acres of land to the executors in trust for Horace M. Campbell during his life, with remainder to the children of Mary E. Gamble. All the defendants were defaulted except Horace M. Campbell, who answered, admitting that Francis S. Campbell made the will and died leaving the heirs, devisees and legatees named in the will, but denying that he was the owner of the 172 acres which he attempted to devise by the sixth clause of the will, and he filed a cross-bill, alleging that the testator held the title as trustee for him. The cross-bill was answered and the evidence was heard by the chancellor. A decree was entered dismissing the cross-bill and granting the relief prayed for in the original bill, and from that decree Horace M. Campbell appealed.

On August 25, 1885, Francis S. Campbell and wife conveyed the tract of land in question to the appellant, Horace

M. Campbell, in consideration of one dollar and the payment of a mortgage of $1000 to Jane Hicks. In 1887 that mortgage was released and a new mortgage for the same amount was executed by appellant. In 1890 the mortgage. given in 1887 was released and a new mortgage for the same amount was given to Jane Hicks. In 1886 the appellant borrowed $1000 from E. S. Durham and gave him a mortgage to secure the loan, and in 1890 that mortgage was released and a new one given. On June 20, 1896, the appellant gave a mortgage for $750 on the greater part of the tract. In August, 1898, there were four judgments against the appellant and executions had been levied on the real estate. Laurel L. Love had brought suit against the appellant in the circuit court for breach of promise of marriage alleging damages of $10,000, and because of the mortgages, judgments and Love suit the banks refused to loan the appellant any money. On August 29, 1898, Francis S. Campbell, father of the appellant, was living on his farm of 156 acres in Kankakee county and on that day the appellant conveyed the tract in question to his father. The appellant was in business in Chicago, and Francis S. Campbell took possession, paid the liens, furnished money to settle the suit and paid the taxes up to the date of his death. At the time of the conveyance to Francis S. Campbell he had three children,-Horace M. Campbell, the appellant, Lewis J. Campbell and Mary E. Gamble. On August 25, 1914, Francis S. Campbell made his will, and Lewis J. Campbell had died before that time, leaving three children. The will provided for the payment of funeral expenses and debts and contained bequests of $100 to a cemetery association and $500 to Sarah E. McKinstry, the testator's housekeeper. By the fourth clause the testator gave to his daughter, Mary E. Gamble, her choice of any two mares and two cows, giving as his reason that he had already given her a deed of his home farm, containing 156 acres, which would come into her possession at his death. He also gave a bequest

of $10 to each of the children of Lewis J. Campbell, explaining that he had already given Lewis, during his lifetime, an amount which he considered equal to a sufficient share of his estate. By the sixth clause he devised to his executors all the residue of his estate, real, personal or mixed, of every kind or nature, in trust for the appellant, and the trustees were directed to pay the net income annually to appellant during his life, and by the seventh clause the remainder after the life estate was to be conveyed to the three grandchildren, children of Mary E. Gamble. Francis S. Campbell died on November 22, 1915, and the will was admitted to probate. After his death the executors paid to the appellant the income from the farm in accordance with the will up to the time the bill was filed, on December 2, 1919. A cut-over tract of land in Michigan, which was of very little value and produced no income, was conveyed to the appellant in fee. The breach of promise suit was settled for $1000, and that was the amount paid.

There were two obstacles to granting relief to the appellant on his cross-bill. The ground for relief alleged was that the facts raised a constructive trust, which arises when a person clothed with some fiduciary character by fraud or otherwise has gained something for himself. There must be some element of fraud, either positive or constructive, which existed at the time of the transaction, or a confidential relation and influence, by virtue of which one has obtained the legal right to property which he ought not, according to the rules of equity and good conscience, to hold and enjoy. Where such a trust ex maleficio is alleged, the facts which raise the trust must be proved by clear and convincing evidence. The evidence to prove the trust must be clear, strong, unequivocal and unmistakable and lead to but one conclusion. Where it is sought by parol evidence to disturb long-standing titles and establish a constructive trust, the courts require such convincing proof as leaves no reasonable doubt of the existence of the facts; and there