delivered the opinion of the court:
The first question which is presented for consideration upon this record is, was the complainant, Mary Ann Clapp, the lawful wife of James H. Clapp at the time of his death? It clearly appears that at the time James H. Clapp and Mary Ann commenced living together in the city of Chicago, ostensibly as husband and wife, James H. Clapp had a lawful wife then living and that Mary Ann had a lawful husband then living. Their cohabitation was therefore meretricious in its inception, and the presumption of law is that it so continued so long as they continued to live and cohabit together, unless the proof shows that the evil purpose of the parties subsequently changed and that the cohabitation lost its unlawful character and became matrimonial in its intent and character, which intent and character may be shown by direct or circumstantial proof, and would be evidenced by a lawful marriage between the parties subsequent to the removal of the disability of each to enter into a law*599ful marriage contract. (Cartwright v. McGown, 121 Ill. 388; Robinson v. Ruprecht, 191 id. 424; Manning v. Spurck, 199 id. 447.) At the time of the ceremonial marriage between James H. Clapp and Mary Ann, on the 21st day'of July, 1885, William S. Seamans, the former husband of Mary Ann, had died, and the impediment to her marriage had been removed. The wife of James H. Clapp, however, was then living, and she did not become divorced from him until more than two years after, that date, and was still his lawful wife unless he had before the date of said ceremonial marriage been divorced from her, as the rule universally recognized by the courts is, that a marriage between parties, where either the man or the woman has a lawful wife or husband living at the time of the marriage, is absolutely void. (Schmisseur v. Beatrie, 147 Ill. 210.) True it is, at the time of the marriage of the parties in the State of Maine the proof does not show that Mary Ann then knew that James H. Clapp had a lawful wife living, but Clapp knew that fact unless he had been divorced from her, and his knowledge made the continuation of the relation between the parties meretricious, and the ceremonial marriage on the 21st of July, 1885, between the parties was void unless James H. Clapp had been before that time divorced from Mary M. Clapp. Mary M. Clapp did not obtain a divorce from Clapp at her suit until in October, 1887, but the record is silent as to the fact whether or not James H. Clapp, prior to the time of the ceremonial marriage with Mary Ann, had been divorced from Mary M. In Cartwright v. McGown, supra, on page 396 it was said: “When the celebration of a marriage is once shown,, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed.”
As Mary M. was living in 1885, the presumption is that James H. Clapp had been divorced from her prior to the celebration of his marriage to Mary Ann on the 21st *600day of July, 1885. The effect of this presumption was to cast the burden upon the defendants, who are attacking said marriage in this suit, to rebut such presumption. In Coal Run Coal Co. v. Jones, 127 Ill. 379, on page 386 it was said: “The second marriage being shown in fact, the law raises a strong presumption in favor of its legality, which we do not regard as overcome by mere proof of a prior marriage and that the first wife had not obtained a divorce. (See Johnson v. Johnson, 114 Ill. 611.) The husband might have obtained such divorce and left him free to contract the second marfiage.” And in Schmisseur v. Beatrie, supra, on page 215 the court said: “The two marriages of Nicholas Beatrie, Jr., and the existence of the first wife at the time of the second marriage being established by proof, the presumption would arise in favor of a divorce from his first wife in order to sustain the second marriage. In view of this presumption the burden of proof rested upon the appellants, as the objecting parties, to show that there had been no divorce. The law is so positive in requiring a party who asserts the illegality of a marriage to take the burden of proving it, that such requirement is enforced even though it involves the proving of a negative.”
It is said, however, if it be conceded that the burden of proof was upon the defendants to rebut the presumption that James H. Clapp had been divorced from Mary M. prior to the celebration of his marriage with Mary Ann, in 1885, as the proof shows that James H. Clapp abandoned his wife Mary M., and that he had no grounds for divorce and could not have legally obtained a divorce from her, such presumption is rebutted,—citing Cole v. Cole, 153 Ill. 585, and other cases. The only evidence in the record in support of such contention is that of the defendants Annie L. Wilcox and Albert G-. Clapp. Mrs. Wilcox testified: “I did not know what had become of my father for a period of twelve years. The trouble at the time my father deserted my mother and his children *601was between my sister’s intended husband,—nothing that I know of on my mother’s account. He didn’t tell me or any other member of his family where he was g'oing" when he left on September 20, 1875.” Albert testified: “He ceased to live with my mother upon general dissatisfaction with business and relatives in Providence,—not through any fault in my mother.” It must be remembered that said defendants were young at the time their mother and father separated, and that they naturally sympathized with the mother. They are parties to and directly interested in the result of this suit, and their testimony, in the nature of things, would be adverse to the complainant. James H. Clapp and Mary M. had been living apart for ten years prior to his marriage to Mary Ann, in 1885. He was a business man, and necessarily had some experience in the ways of the world and knew something of the law, and it would hardly be presumed that he would enter blindly into a marriage with the complainant at a time when he knew he h'ad a lawful wife, the effect of which would be to subject him to a prosecution for bigamy. The parties lived together openly as husband and wife for two years after the marriage in 1885 and prior to the divorce of Mary M. in 1887, and thereafter continued to live together until his death, in 1897, the complainant during all that time, so far as the evidence shows, resting secure in the belief that she was the lawful wife of James H. Clapp. After the death of Seamans there was no legal impediment to the marriage of James H. Clapp and Mary Ann Clapp so far as she knew, and subsequent to the marriage in 1885 they lived together as husband and wife for a period of twelve years and until the death of Clapp. They held themselves out to the world as husband and wife and were recognized as such by their friends and relatives. Clapp wrote and spoke to his children of the complainant as his wife. The defendant Albert G-. visited at his father’s home with his bride upon his wedding trip, in 1888. Mrs. Wilcox *602visited the World’s Pair in 1893, and she and her husband stopped at her father’s house for some length of time. At the time of the death of James H. Clapp, Albert G. attended the funeral, recognized the right of the complainant, as widow, to administer upon his father’s estate, and the probate court, without objection on the part of the defendants, appointed her administratrix thereof. In the title deeds under which the father held the property which the defendants inherit from him, the complainant is designated as the wife of James H. Clapp.
In view of all these facts and circumstances, we think the master and the chancellor were justified in holding that the evidence of Mrs. Wilcox and Albert Gr. Clapp, given after the death of James H. Clapp, was not sufficient to overcome the presumption that James H. Clapp had been divorced from Mary M. Clapp prior to his marriage to Mary Ann Clapp in July, 1885. Furthermore, while the proceeding in the probate court of Cook county for the allowance of an award to the complainant was pending, the defendants, as heirs of James H. Clapp, appeared by attorney and contested her right to an award upon the ground that she was not lawfully married to James H. Clapp and was therefore not his widow. The court held against them upon that proposition, and allowed to the complainant, as widow of James H. Clapp, a widow’s award out of his estate. The precise question presented here was presented there. The heirs of James H. Clapp had the right to appeal from that order, and having failed to do so, we think they are bound by the adjudication there made and cannot now attack that finding and judgment collaterally. The proceeding was, in effect, between Mary Ann Clapp and the heirs of James H. Clapp, deceased, and affected their interests only. The probate court had jurisdiction of the parties and the subject matter of the suit, and the court, in allowing to the widow an award, necessarily held that she was the •lawful widow of James H. Clapp, deceased, and that judg*603ment is binding upon the heirs until reversed in a direct proceeding. In Hanna v. Read, 102 Ill. 596, on page 602 the court said: “Where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. This species of estoppel is known to the law as an estoppel by verdict, and is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as matter of defense. * * * Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in a cause, the fundamental principle upon which it is allowed in either case is, that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication.”
The evidence shows that at about the time complainant left Rhode Island she had in cash §1437.31. What she did with it does not appear. At the time the real estate was purchased, in 1883, a cash payment of §2666.66 was made thereon and an encumbrance of §1333.34 was assumed. The title thereto was taken in the name of Mary A. Clapp. In 1885 she conveyed said premises to James H. Clapp through Henry D. Nichols, and the title rested in him at the time of his death. ' As we understand the contention of complainant, it is claimed that James H. Clapp held said'premises in trust for Mary Ann Clapp to the extent that her funds entered into the payment of *604the purchase money therefor, which it is said was to the extent of $2000. A number of witnesses testified that James H. Clapp had stated to them he was indebted to his wife, Mary Ann Clapp, in various sums, ranging in amounts from $2000 to $4000. There is, however, no evidence in the record which tends to support a resulting trust in her favor in said real estate. A resulting trust arises by implication of law, and does not grow out of a contract. The title to the real estate was taken in the name of Mary Ann Clapp at the time of the purchase, and in 1885 she conveyed the title to James H. Clapp, and even though it were conceded at that time he agreed to hold it for her benefit or to re-convey it to her, as the bill alleges, such contract or agreement, unless evidenced in writing, would be within the Statute of Frauds and not enforceable, where the statute, as here, is pleaded. Express trusts do not rest in parol, but must be evidenced in writing. The chancellor allowed the complainant, in the statement of the account between the parties, the sum of $800 as due her for money loaned to James H. Clapp. We think this amount as a claim for money loaned, fairly sustained by the evidence, and would not be disposed to disturb such finding were it for a larger amount, as we are impressed the money of Mary Ann Clapp went into said real estate, and James H. Clapp recognized the same as an existing obligation as1 late as a year prior to his death.
The evidence further shows that lot 30 is improved with a three-story' brick flat-building, and that lot 31 is improved with a two-story frame building consisting of two flats, the lower of which was occupied by James H. Clapp and family and is now occupied by complainant as a homestead, and the upper of which was rented by him, and has been occupied, at least a part of the time, by tenants since his death; also by a frame cottage upon the rear portion thereof,, which is also occupied by a tenant. The complainant remained in possession of all of said premises and collected rents therefor until about *605September 1, 1900, when the heirs of James H. Clapp recovered possession thereof through an action of forcible detainer, with the exception of the two-story frame building, and have collected the rents therefor since that time. The court held, in stating the account between the parties, that the complainant was entitled to the possession of both flats in said frame building as her homestead, after the death of James H. Clapp, and refused to require her to account for the rent collected by her for the upper flat,—the one not occupied by her as a homestead. The portion of the building occupied by her was of much greater value than $1000, and we are of the opinion, especially in view of her understanding with Albert G. Clapp that she would rent the premises and that her rights and the rights of the heirs would be subsequently adjudicated, that there was error in refusing to require her to account for the rent of said flat. In case a householder occupies a flat in a flat-building, or an apartment in an apartment building, as a homestead, his residence is as much disconnected from the other flats or apartments located in said building as though the portion thereof occupied by him was located upon a different lot or under a different roof; and while in a case like this it might work no great harm to hold the widow, after the death of the householder, might rightfully retain the possession of the entire building until her homestead was assigned, if the principle were applied to a building containing, as is often the case in large cities, many flats or apartments, it would lead to absurd results. Especially would that be true where the widow remained in the apartment with the understanding that she would rent the balance of the premises and account to the heirs for the rent, and it seems clear to us that the complainant should have been required to account for the rents which she collected upon the upper flat in the frame building, subsequent to James H. Clapp’s death. In Tiernan v. Creditors, 62 Cal. 286, it was held that in the case of a *606double house on a city lot intended for two families, one part of which was leased to a tenant and the other occupied by the owner, the owner could not claim as a homestead that portion of the building not occupied by him; and in Dyson v. Sheley, 11 Mich. 527, it was held that in order that premises may be exempted as a homestead, they must be set apart as a homestead for the purposes of the owner and his family, and where the owner of a city lot built a double house upon it in such a way as to show that he designed it for the use of two families and not for one, and leased one part of it and occupied the other himself, that he could not claim the latter as exempt from execution sale as a homestead, and that the fact that the yard of the part leased was used by the owner in common with the tenant would not vary the case. To the same effect are Rhodes, Pegram & Co. v. MoCormack, 4 Iowa, 368, and Mayfield v. Marsden, 59 id. 517.
We are also of the opinion that the court erred in decreeing that the complainant, Mary Ann Clapp, was entitled to dower" in said real estate absolutely, and not subject to the right of dower therein of Mary M. Clapp. The court held Mary M. Clapp was entitled to dower in said real estate, and that part of the decree has not been questioned. The decree should have first provided that Mary Ann Clapp recover an estate of the value of $1000 in the portion of the real estate occupied by James H. Clapp at the time of his death, as a homestead; that Mary M. Clapp recover dower in said real estate subject to the homestead therein of Mary Ann Clapp, and that Mary Ann Clapp recover dower therein subject to her homestehd estate and the dower estate of Mary M. Clapp; (Stahl v. Stahl, 114 Ill. 375;) that is, first a homestead of the value of $1000 should have been set off to Mary Ann Clapp; second, one-third in value of the real estate remaining should have been assigned to Mary M. Clapp as her dower; and third, one-third of the real estate remaining should have been assigned to Mary Ann Clapp *607as her dower, and in case she survived Mary M. Clapp she would be endowable of one-third of the portion assigned to Mary M. Clapp as dower in addition to the amount already assigned to her.
In the division of rents, after deducting the homestead, Mary M. Clapp should receive the one-third part thereof from the time she intervened, and Mary Ann Clapp should receive one-third of two-thirds of the rent from the date of the death of James H. Clapp. The agreement with Albert G-. Clapp, one of the heirs, whereby she was to remain in possession of the property and collect the rents, made a demand for dower on her part unnecessary. Strawn v. Strawn’s Heirs, 50 Ill. 256.
The only estate of which James H. Clapp died seized is the real estate described in this bill, and whatever debts and claims, including the widow’s award and the expenses of administration, that are legally provable against his estate must be paid from the income thereof or a sale of the whole or a part of the said real estate, and as the complainant is the only creditor and she and the defendants are the only persons interested in said estate, we seeno objection to a full settlement and adjustment in this suit of all claims or matters in difference between them relative to said estate and to a full determination of their interest in said real estate, including the adjustment of rents arising therefrom and improvements made thereon. While equity will not ordinarily take upon itself the settlement of the estate of deceased persons, in a proper case it may assume such jurisdiction, and this case seems to fall within the class of cases where such jurisdiction may be assumed.
Upon the case being re-instated below, it should be re-referred to the master to state an account between the parties as to the rents and profits which have accrued from said real estate since the death of said James H. Clapp, and the parties should be charged with the rents collected by them, respectively, and credited with the *608amounts they have rightfully paid out in improving or preserving said real estate, including the expenses incurred by the complainant in completing said cottage, and the complainant should be credited with the several amounts allowed her for money loaned, widow’s award, expenses of administration, and the balance found to be due her decreed to be a lien upon said real estate, and a decree entered fully settling the rights of the parties in said real estate.
The decree will therefore be affirmed in part and reversed in part and remanded to the circuit court, with directions to proceed to a final determination of the case in accordance with the views herein expressed, and the complainant will pay one-third and the defendants two-thirds of the costs occasioned by this appeal.
Decree reversed in part, and remanded.