throw any light on the issue being tried. The court also excluded evidence offered tending to show statements made by appellee Martha J. Bell in regard to the capacity of the testatrix to transact business, and also what she said in relation to taking her to a sanitarium. Miss Bell did not testify in the case and this evidence was not offered to impeach or contradict her. It could only have been proper, if at all, as an admission of a party to the record, and as such it amounted, at most, to the expression of an opinion in regard to the ability of the testatrix to transact business a short time before her death. There was no reversible error committed in the exclusion of this evidence.

Appellants make some other complaints in regard to the rulings of the court on the trial, but none of them are of such serious character as to justify the reversal of this decree. The cause was fairly and fully tried and the proper result reached and substantial justice has been done. The decree of the circuit court of DeWitt county is affirmed. Decree affirmed.

ERNEST UTES et al. Appellants, vs. CHARLES UTES, Exr. et al. Appellees.

Opinion filed October 28, 1913-Rehearing denied Dec. 4, 1913.

APPEALS AND ERRORS-when appeal from probate court should go to the circuit court. An appeal from an order of the probate court dismissing, without prejudice, a petition to determine the homestead rights of the petitioners in a certain estate should be taken to the circuit court instead of the Supreme Court, as the probate court is without jurisdiction to determine the matter presented and no order which it might make in that regard would present any question which would authorize an appeal to the Appellate Court or Supreme Court.

APPEAL from the Probate Court of Cook county; the Hon. CHARLES S. CUTTING, Judge, presiding.

JAMES A. PETERSON, for appellants.

HUBERT HOWARD, (HERBERT HAASE, of counsel,) for appellees.

Mr. CHIEF JUSTICE COOKE delivered the opinion of the

court:

On November 15, 1912, Joachim Utes died testate, leaving, among other heirs, appellants, Ernest Utes and Ethel Utes, his grandchildren. His will was admitted to probate, and letters testamentary were issued by the probate court of Cook county to Charles Utes, a son of the testator. Shortly afterwards appellants, by Ida Utes, their mother and next friend, filed a petition in the probate court of Cook county claiming an estate of homestead in the real estate left by the deceased and the right to a children's award out of his estate. The petition alleged that appellants were minors and were residing with their grandfather as members of his family, upon real estate owned by him, at the time of his death, and prayed that the executor of the will of Joachim Utes be instructed to inventory said real estate as subject to appellants' estate of homestead, and that the appraisers of the personal estate be instructed to report to the court a children's award for appellants. The executor answered the petition, and certain devisees answered, adopting as their own the answer of the executor. A hearing was had before the court and resulted in the entry of an order dismissing the petition without prejudice. Appellants have prosecuted this appeal from that order.

There is no question involved in this appeal which gives this court jurisdiction. The probate court has no jurisdiction to determine the homestead rights of appellants upon their own petition. They can have this question determined only in a court of equity. The question whether they were entitled to an estate of homestead in the lands of the tes

tator would be in nowise determined by any order the probate court might make on this petition. This appeal should have been taken to the circuit court, as this is not of the class of cases in which, under our statute, appeals can be taken from the probate court to this or the Appellate Court.

The appeal is dismissed.

Appeal dismissed.

M. M. STEPHENS, Appellant, vs. THE ST. LOUIS UNION TRUST COMPANY et al. Appellees.

Opinion filed October 28, 1913-Rehearing denied Dec. 3, 1913.

1. PLEADING-a negative plea in equity is a legitimate mode of defense. A pure plea in equity is one which merely states matters not apparent on the face of the bill and relies on such matters as a bar to complainant's claim; but a negative plea relies solely upon some matter alleged in the bill upon which the complainant's rights depend, and is a legitimate mode of defense.

2. SAME-defense that the complainant did not pay purchase money may be raised by plea. Where a bill to establish a resulting trust in land alleges that complainant furnished the money to pay for the land, the defense that he did not furnish such money may be raised either by answer or negative plea.

3. SAME-a plea denying that complainant furnished purchase money does not shift burden of proof. The complainant in a bill to establish a resulting trust has the burden of proving his allegation that he furnished the purchase money, notwithstanding the allegation is denied by a negative plea instead of by answer.

4. SAME-Court may allow answer to be withdrawn and pleas of to be filed after referring cause to master. Under section 39 the Practice act it is not an abuse of discretion for the trial court to permit the answer to be withdrawn and pleas to be filed after the cause has been referred to the master and the evidence been partially taken.

5. TRUSTS-resulting trust arises, if at all, when legal title is taken. A resulting trust arises, if at all, when the legal title is taken, and no oral agreement or payments made before or after such time will create such a trust, but the trust must result from the transaction itself.

6. SAME when resulting trust is not established. A resulting trust will not be held to have been sufficiently established where the evidence is not entirely clear and satisfactory or is capable of reasonable explanation upon theories other than that of the existence of such a trust.

7. SAME when a court of equity will not declare a resulting trust. A court of equity will not declare a resulting trust in land where the evidence is not clear in support of the bill, especially where no claim has been set up during the lifetime of the alleged trustee but is first urged against his heirs.

APPEAL from the Circuit Court of St. Clair county; the Hon. GEORGE A. Crow, Judge, presiding.

TURNER & HOLDER, for appellant.

TRAUTMANN, Flannigen, BaXTER & HAMLIN, for ap

pellees.

Mr. JUSTICE CARTER delivered the opinion of the court: This was a bill filed November 18, 1910, in the circuit court of St. Clair county, for the partition of about twentythree acres of land in that county, involving the question as to whether a resulting trust existed from the purchase of said real estate. After a hearing before the master the court sustained a portion of his findings and overruled the remainder and entered a decree dismissing the bill for want of equity. From that decree M. M. Stephens has appealed to this court.

In 1898 an electric road was constructed connecting East St. Louis and Belleville, running along the turnpike road. While the line was being constructed F. F. Espenscheid and M. M. Stephens were induced to become interested in the matter and furnished a considerable portion of the money for its construction. It was decided to locate the power house of the railroad about midway between the two cities, at the bluffs dividing the high land from what is known as the American bottom. It was found necessary

to purchase more land than was needed for the use of the power house as the owners would not sell the small portion needed for that use, and the twenty-three acre tract here in question was purchased at that time, a small part of it being used for the power house. The remainder of the twentythree acre tract was enclosed with a fence, and on it were erected a dance hall and other buildings for the purposes of a park. The land was conveyed by the former owners to George Townsend, and by him to Thomas L. Fekete as trustee, and by him to William S. Forman and Fred F. Espenscheid, May 3, 1899. May 5, 1899, the last two named persons conveyed to one Colson, who placed a mortgage of $8000 on it, and then re-conveyed it, subject to said mortgage, to Forman and Espenscheid. On the same day they leased said premises to said Colson, who was apparently acting as the agent of a brewing company, for a park. In consideration of said leasing Colson assumed the payment of the mortgage and taxes and agreed to perform other covenants. Later on, Forman and Espenscheid leased the premises to the St. Louis Brewing Association, to be used as a park, under terms similar to those in the former lease. Espenscheid's one-half interest was afterward acquired by other owners. Forman died on June 10, 1908, intestate, leaving his widow, Esther A. Forman, and three children. At that time he was seized of the legal title to an undivided half of said twenty-three acre tract, except the small portion occupied by the power house and tracks of the railroad company.

Appellant, Stephens, alleged in his bill, and attempted to prove, that Forman held title to this undivided half interest, not for himself, but as trustee for appellant; that appellant had furnished the purchase money, the title being taken in Forman's name as a matter of convenience. Appellees first filed an answer to the bill of complaint, denying that appellant had paid the purchase money for the land