Evangelical Ass'n v. Meyer

Mr. Justice Scott delivered the opinion of the court: The basis upon which the jurisdiction of this court is invoked by a direct appeal from the superior court is that a freehold is involved. We have frequently held that a freehold is involved only in cases where either the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or where the title is so put in issue that the decision of the case necessarily determines who is the owner of the freehold. In this case all the real estate owned by the deceased has been converted into cash, pursuant to decrees to which the parties to this litigation consented, and those decrees are not questioned here. This appeal is from a decree making distribution of money. The title to the freehold has passed to the purchaser and is in no manner questioned, and will not be affected by any decree that could be entered upon the petition filed herein for a construction of the will. It may be that earlier proceedings in the suit did involve a freehold, but no assignment of error questions any of the orders or decrees made by the court relating thereto, and an appeal directly to this court will not lie where the appeal brings up only another decree in the same proceeding, which decree has no relation to the question of freehold. (Malaer v. Hudgens, 130 Ill. 225; Moore v. Williams, 132 id. 591.) In Nevitt v. Woodburn, 175 Ill. 376, we held that a devise of real estate to a trustee, to be by him sold and the proceeds to be distributed among the legatees, is a bequest of personalty and not a devise of real estate, and that a bill to compel the trustee to account for trust funds arising from the sale of the lands does not involve a freehold. On principle the case at bar cannot be distinguished from the one last cited. The cause will therefore be transferred to the Appellate Court for the First District, and the clerk of this court will transmit to the clerk of said Appellate Court the transcript and all files in this cause, together with a certified copy of the order transferring the cause to that court. Cause transferred.