Linn v. Downing

Mr. Justice Wilkin delivered the opinion of the court: It is insisted by counsel for appellees that the bill, fails to show a valid judgment and execution as the basis for a creditors’ bill, for the reason that the original judgment set up was obtained in the name of the firm of Linn & Scruggs as partners, and was attempted to be revived by scire facias in the names of the personal representatives of Linn and the surviving partner, Scruggs, whereas such revival could only have been in the name of the surviving partner. The rule contended for is undoubtedly correct as applied to judgments of a firm or co-partnership, the law being that the surviving partner becomes vested with the title to all the partnership property for the purpose of settling the affairs of the. firm, and until such settlement is made the representative of the deceased partner has no title or legal interest in the partnership assets. Talcott v. Dudley, 4 Scam. 427; People v. White, 11 Ill. 341; Miller v. Jones, 39 id. 54; Clay v. Freeman, 117 U. S. 97; Hamilton v. Wells, 182 Ill. 144. It seems to be urged on behalf of the appellants that the averments in their bill are not inconsistent with the theory that the original judgment was obtained by Linn & Scruggs jointly, and not as partners. Applying the rule that a pleading should always be construed most strongly against the pleader the contention cannot be sustained. The allegation, so construed, clearly means that the original judgment was obtained in the firm name. Objection is also made by counsel for appellees as to the form of the judgment of revival, or, rather, that no judgment of revival was in fact entered. It is not in technical form, but if it had been rendered in the name of the proper party it would have been sufficient upon collateral attack. We are of the opinion, however, that it was not.a valid existing judgment, the surviving party, in whom the legal interest was, not having sought its revival, and treating the bill as a mere creditors’ bill it could not be sustained for this reason. Aside from this consideration, however, the circuit court properly sustained the demurrer to the bill on the construction of the will of Ida A. Downing. The question was whether her husband, William T. Downing, took such personal interest in the property therein bequeathed as could be subjected to the payment of his debts. That question must be decided upon the interpretation of the first, (construed with the ninth,) second, seventh and eighth items of the will. The first item, as -will be seen, (together with the ninth,) gives to the husband an estate in the homestead for a home for himself and the mother of testatrix during their natural lives and during the life of the survivor of them, and also for a home for the children of testatrix until they attain the age of twenty-one years, etc., the devise being upon the expressed condition that the real estate described in that item shall be and remain a home for the husband during his natural life and for the mother and children as therein provided. Two of the children were residing with the husband upon the estate of homestead at the time the bill was filed, and the rights of such children were clearly so connected and blended with his interest as to make it" impossible to separate them, even if the value of the homestead had been shown to be such that it- could be subjected to and sold on execution. So by the second item the personal property is given to the husband “for the use and benefit of himself and for the use and benefit of my mother during their lives and during the life of the survivor of them, and for the use and benefit of my children until they, respectively, shall arrive at the age of twenty-one.” It is true that that clause gives the husband the power to sell certain of the personal property if he shall see proper, but with the requirement that he shall invest the proceeds of said sale in such other personal property of the same kind “as he may deem necessary for the use of himself, my mother and my children, while they shall live with him on the real estate described in item I of this"will.” He is not given an unqualified-pOAver of disposition. The clause, taken as a whole, does not give him the title to the personal property, but places it in his hands in trust for the use of himself and the other beneficiaries therein named. The complainants insist upon the sufficiency of their bill more particularly under the seventh and eighth items. It will be seen by reference to the foregoing copy of the will that the trustee is directed by said paragraphs to convert into money all of the estate except the homestead, and to loan the same upon certain securities. The estate is devised to him in trust for such purposes, with the direction that he shall set apart an allowance of $1200 per annum to meet the expense of the maintenance of the mother, children and himself, so long as the children reside upon the homestead. As they reach the age of twenty-one and cease to live with him the allowance of $1200 is to be reduced, and when all cease to live with him the amount is fixed at $600 for his benefit alone. The mother being dead and the daughter no longer residing upon the homestead, and the husband, with the two sons, continuing to reside in the home, the allowance at the time the bill was filed, according to the provisions of the bill, would amount.to $1000, and the contention of counsel for the appellants is, that of that amount $600 belongs to the husband as his absolute individual estate, liable for his' debts. The will creates an active trust in him for the benefit of himself and the sons, the latter having just as much right to the use of the $1000 as he has. That sum is for their support and maintenance as Avell as his. He has no more right to any definite part of the $1000 than they have, and a court of equity would, if necessary, require him to carry out the terms of the trust and expend the money for their support and maintenance. In order to accomplish the ends sought by this bill it would be necessary either to take the whole $1000, depriving the children of their entire support, or separate the fund, giving the husband $600 and the children thbalance, and then subject the husband’s portion'to the payment of his debts, which would violate the express terms of the will. While it is true that a court of equity will aid a creditor in reaching the property of a husband where it is simply a question between himself and such creditor, as we held in ReQua v. Graham, 187 Ill. 67, yet where the interests of third parties intervene those interests must be protected, and if the relief prayed cannot be granted without injury to them it must be denied. The $1000, so long as the infants live with the father, is a common fund held in trust to support and maintain all the beneficiaries. No one of them has such a separate and distinct interest in it as can be reached by a creditor. The entire estate constitutes a trust in the hands of the husband in this case, and when the children arrive at the age of thirty years, then, and not until then, can there be a distribution. The contention of appellants is, that as the husband took the provision of the will in exchange for his right of dower, he therefore took as a purchaser and his allowance became subject to the payment of his debts, citing ReQua v. Graham, supra. In that case, however, the wife bequeathed to hehusband, John Nichols, the definite annual sum of $1800 during his natural life, to be paid quarterly in equal installments of $450 each, depositing the money to his credit in certain banks in Chicago subject to his order, which annuity was expressly stated to be in lieu of all other interests in her estate, and we there held that as the annuity was given in lieu of dower, and as the husband had a right to accept" or reject it, it was merely an offer to purchase his interest and the annuity was liable for the payment of debts. While this will does not provide that the gift to the husband shall be in lieu of his dower it doubtless should be given that effect upon the acceptance of the benefits of the will. But the questions involved here are very different from those arising in the case cited. There the annuity was given to the husband absolutely, and deposited subject to his order. The rights of other beneficiaries were in no way connected with or made dependent upon it. Here, as we have seen, it is impossible to ascertain now what the individual rights and interests of the husband are. When, if ever, the time arrives that the $600 annuity, as provided in the seventh and eighth clauses of the will, becomes the property of William T. Downing, disencumbered or independent of the rights of the children, that $600 may be subjected to the payment of his debts, but until that time arrives it cannot be reached by his • creditors. We have not deemed it necessary to consider whether or not, if all that the complainants claim in their bill be true, they would not have a complete and adequate remedy at law, but are of the opinion that in the view above expressed the demurrer to the bill was properly sustained. The judgment of the Appellate Court will accordingly be affirmed. Judgment affirmed.