#### Samuel Doane, appellant, v. Ellen Dunham et al., appellees.

Filed March 5, 1902.

No. 11,273.

Commissioner’s opinion, Department No. 3.

1. Preponderance of Evidence. Whthe proof by a preponderance of the evidence is all that is required of the plaintiff in any civil action, when a plaintiff seeks to overcome the presumption arising from the express terms of a conveyance and from the relations of the parties concerned therein, by parol evidence, much more certainty and conclusiveness are required than in ordinary cases.

3. Parol Evidence: Resulting Trust. Parol evidence to establish a resulting trust, must be clear, unequivocal and convincing.

3. Husband and Wife: Giet: Presumption. Where a husband places the title to lands in his wife without consideration, whether by conveyance directly or by procuring conveyance to her by others, a gift is presumed.

Appeal from the district court for Nuckolls county. Heard below before Hastings, J.

*Affirmed.*

*W. A. Bergstresser, Jefferson H. Broady*and *Isham Reavis,*for appellant.

$. *W. Christy*and *Cole & Brotm, contra.*

Pound, C.

This action was brought to declare a resulting trust in certain lands alleged to have been purchased by appellant and conveyed by his direction to Sylvia A. Doane, his wife, nw deceased, whose heirs at law are defendants and ap*136pellees. The district court, found for the defendants as to the subject-matter of the present appeal, and decreed accordingly.

In our view, but one question is presented, namely, whether the decree is sustained by the evidence. Counsel have argued that the pleadings make a narrower issue than the existence or non-existence of a trust, and merely raise the question whether appellant or his wife paid the purchase money. But although the answer alleges that the wife furnished the funds, there is also a general denial, under which the court might properly find an absolute gift by the husband. It is undoubtedly true that proof of an issue by a preponderance of the evidence is all that is required of a plaintiff in any civil action. *Stall v. Jones, 47*Nebr., 706; *Wylie v.*Charlton, 43 Nebr., 840; *Southard v. Curley,*134 N. Y., 148. But this is not a fixed or unvarying standard. What would be sufficient to constitute a preponderance of the evidence and to sustain a judgment in an ordinary case might not suffice in another, where, in addition to the burden resting upon the. plaintiff in any case, particular presumptions are to be overcome. This is especially true where a plaintiff seeks by parol evidence to overcome the presumptions arising from the express terms of a conveyance, or from the relations of the parties concerned therein. It is obvious that what would ordinarily suffice may fall far short of the requisite *quantum*of. proof in such a case, without in any degree infringing the general rule that only a preponderance of the evidence .is demanded. In consequence, whthe we we may not admit the statements often to be seen in the books, that more than a preponderance of the evidence is required to establish a trust, contrary to the purport of. a written instrument, by parol, and that the trust in such cases must be proved beyond doubt, there is no occasion to repudiate or to qualify what has become a commonplace of the books, that the proof in such cases must be clear, unequivocal and convincing/ 2 Pomeroy, Equity Jurisprudence, sec. 1040; 1 Beach, Trusts, sec. 172; *Sehade v. Bessinger,*3 *137Nebr., 141, *144; Deroin v. Jennings,*4 Nebr., 97; *Names v. Names,*48 Nebr., 701; *Klamp v. Klamp,*51 Nebr., 17; *Veeder v. McKinley-Lanning Loan & Trust Co.,*61 Nebr., 892. The very terms of. the conveyance are evidence, and .must be overcome. Hence much more certainty and conclnsiveness are requisite than in ordinary cases. Indeed, it has been said that “Proof of trusts by parol is not regarded with favor by the courts.” 2 Jones, Evidence, sec. 425/"In the case at bar, moreover, appellant’s burden was increased by the presumption which arises in any case where a husband places thé title to lands in his *wife*without consideration/ Whether this is done by direct conveyance, or by procuring a conveyance to her by others, can malee no difference. In either event a gift is presumed. *Kobarg v. Greeder,*51 Nebr., 365; *Veeder v. McKinley-Lanning Loan & Trust Co., supra.*The district court found that appellant intended his wife to take the full beneficial interest. If, as there is much to indicate, he acted under a mistake of law in supposing that on his wife’s death the property would pass to his daughter by a former wife, and not to collateral relations of the grantee, yet such mistake did not and does not constitute any legal ground for Avitlidrawing his completed gift. Neither does it authorize us to impress the property Avitli a trust which the parties themselves did not create.

We recommend that the decree be affirmed.

Barnes and Oldham, CC., concur.

By the court: For the reasons stated in the foregoing opinion, the decree of the district court is

Affirmed.