Mayer v. McCracken

Mr. Justice Cooks delivered the opinion of the court: Appellant McCracken first contends that the trial court erred in overruling the demurrer filed by both appellants to the bill in the superior court in what is termed the main cause, and also in overruling the two joint and several pleas filed to the same bill on September 30, 1908. They did not elect to stand by their demurrer but filed their pleas to the bill, and cannot now complain of the action of the court in overruling the demurrer. Nor is either of them in a position to question the ruling of the court on the sufficiency of the pleas. Dennehy abandoned his right to assign this action of the court as error by answering the bill. Mc-Cracken, it is true, elected to- stand by his pleas and was defaulted, but he subsequently entered into the voluntary stipulation and agreement whereby the causes pending in the circuit court were transferred to the superior court, the replevin suit transferred from the law to the chancery docket and all of the causes consolidated. This agreement provided that said causes should be heard and determined together and that one decree should be entered determining all the matters in controversy. The consolidation of these causes was a very proper step, as a determination of any one of them on the merits would be a determination of the merits of one or more of the others. McCracken had filed his answer, to the bill to set aside the deed to the Burling street property and was entitled to contest that on the merits. The order consolidating these causes was not made by the court on its own motion or upon motion of either of the parties, but was made pursuant to the agreement of all the parties. Had Veronicka Mayer filed a motion for the .consolidation of these causes, McCracken could properly have objected on the ground that he had invoked the doctrine of res judicata by pleas to the bill in the superior court, upon which, the same having been overruled by the court, he had elected to stand, and that he proposed to contest the bill to set aside the deed on its merits. Instead of such action being taken, McCracken joined with the other parties in a stipulation to consolidate all the causes and try them as one on the merits. By so doing he abandoned his right to rely upon his pleas, and the consolidation of" these causes pursuant to this agreement had the effect of setting aside the default of McCracken to the bill filed in the superior court. McCracken appeared at the trial of the consolidated causes in person and by his solicitor and defended on the merits as to all the matters involved. He appears here by the same solicitor, and asks for a reversal of the decree both upon the ground that the court erred in overruling his pleas of res judicata and that it erred in its decree upon the merits. Having consented to the consolidation and having participated in the trial on the merits, where he testified fully in his own behalf, McCracken waived his right to have the action of the court in overruling his pleas reviewed. Appellant Dennehy assigns as error the refusal of the court to permit him to file a further plea. . This assignment cannot now be availed of, for. the reason that after the court refused to allow this additional plea to be filed Dennehy answered the bill, properly setting up as matters of defense the same matters relied upon in the proposed plea. By thus answering he preserved all his rights and secured the same consideration as to the matters set up by way of defense as he would have .secured had the court allowed the plea to be filed. The principal questions at issue and to be determined here depend upon the construction of the last will and testament of John B. Mayer. The third clause of this will gave to the daughter, Anna Mayer, (afterwards McCracken,) the fee to the real estate therein described, and, standing alone, created in her an estate in fee simple. It is the policy of our courts to adopt such a construction of a will as will give an estate of inheritance to the first devisee, unless there are other clauses in the will which disclose clearly that it was the intention of the testator to limit or qualify the estate devised. In this will there can be no question as to the intention of the testator, as by the eighth clause he discloses clearly and expressly that he desired to make an executory devise to Veronicka Mayer, her heirs and assigns forever, of the same property. This question has been before us so frequently that it is unnecessary to cite authorities as to the proper construction to be placed upon this will ;n determining the estate taken by the daughter, Anna, in the property devised to her by the third clause. The ex-ecutory devise is valid, and Anna was given a base or determinable fee in the property at 147 Center street, which would be defeated by her death without issue during the lifetime of her mother. This property having been taken by condemnation proceedings, in which all the parties having any interest in the real estate were made defendants, the money awarded by the jury and paid by order of the court into the hands of the county treasurer took the place of the real estate, and was subject to the same limitations under the will of John B: Mayer as the real estate itself had been. It is contended on the part of appellants that under the holding of this court in Friedman v. Steiner, 107 Ill. 125, Anna had during her lifetime the absolute power to alienate this property and to pass to the purchaser a fee simple absolute, and that this was done by the conveyance to Buckingham. The holding of the court in the Friedman case is not in point on the question' at issue here. In the Friedman case the devise of the real estate in controversy was to Mrs. Steiner and her heirs and assigns forever, upon the express condition that should she die intestate and without leaving lawful issue surviving, then the lands devised should be sold and the money paid to the executory devisees. In this case the conditions upon which the fee in Anna should be defeated are that she should die without children and during the lifetime of her mother. The condition that she should also die intestate as to this property was not attached as in the Friedman case, and she was therefore given no absolute power of alienation. Should she have conveyed this property by deed, the purchaser would have taken it burdened with the conditions imposed upon it in the will of her father. . Appellee relies upon the case of Orr v. Yates, 209 Ill. 222, as overruling that part of the Friedman case which held that Mrs. Steiner had the absolute power of alienation of the lands devised to her, but we do not perceive any conflict in the two opinions. The following language in the Orr case, at bottom of page 232, “and in so far as a different doctrine is announced in the Friedman case it has not been approved,” had no necessary application to the matters involved. In the Friedman case the gift over was conditioned to take effect upon the death of Mrs. Steiner without issue her surviving and intestate. It is apparent that if Mrs. Steiner should alienate either by deed or by will, she could not die intestate as to that property and the gift over would fail. In the Orr case the gift over was not conditioned, in part, upon the death of the first taker intestate. Dying intestate as to the property being one of the conditions upon which the executory devise should take effect, we properly held in the Friedman case that Mrs. Steiner had power to convey an indefeasible title to the property devised to her. The reasoning on that phase of the Friedman case is of no controlling force here. While there can be no question, under the holdings of this court, that Anna McCracken took a base or determinable fee in the property devised to her by the third clause of the will, yet were this not true appellants should be estopped here from contending otherwise. Upon the conclusion of the condemnation proceedings, whereby this property was taken by the Northwestern Elevated Railroad Company, the court, by reason of the provisions of the will of Mayer, ordered the money awarded to the owners of the property to be paid to the county treasurer. Anna thereupon .filed a bill in the superior court, to which her mother, (the appellee herein,) the railroad company and the county treasurer were made defendants, setting up the will of her father and praying that the same be construed and that some proper person be appointed as trustee of the money which had been so paid to the county treasurer. The superior court construed the will as we have herein above construed it and appointed Mrs. Mayer as the trustee of the fund, and the same was paid over to her by the county treasurer upon the order of the court. Appellants are claiming this fund through Anna McCracken, and as she voluntarily applied to the superior court for a construction of the will and the appointment of a trustee for this fund, they are estopped to deny or contradict the construction of the will thus secured and acquiesced in by her. The decree of the superior court in the consolidated causes as to the estate taken by Anna McCracken under the will of her father and as to the interest of Veroniclca Mayer in the fund created by the taking of this property by condemnation proceedings was correct. That part of the decree setting aside the deed of Veronicka Mayer to the Burling street property is assigned as error. This assignment is well made. After Veronicka Mayer had filed her bill in the circuit court and the same had been dismissed on demurrer, and after she had filed her petition in the probate court and the same had been dismissed upon hearing, in both of which she claimed to own the whole of the property in the hands of Dennehy, appellant McCracken filed his bill for the partition of the Burling' street property between himself and Veronicka Mayer. The same attorney who had represented her in the bill in the circuit court and in the petition in the probate court represented her in the partition suit. Through this attorney Mrs. Mayer carried on negotiations with McCracken for the settlement of the partition suit. As a result of these negotiations, and with the consent and at the request of Veronicka Mayer, her attorney made a proposition to McCracken to convey to him all the interest of Veronicka Mayer in this real estate for the sum of $100. This proposition was accepted by McCracken, and Mrs. Mayer, still acting upon the advice of her attorney, executed a deed to McCracken of her interest in this property and accepted in payment therefor the sum agreed upon. It cannot be contended that Mrs. Mayer was ignorant of her rights at this time. She had already contended in two forums that her daughter, at the time of her death, owned no property whatever except that derived through the will of her father, and that she, as executory devisee of that property under her husband’s will, was the owner of and was entitled to the same. In the settlement of the partition suit, which terminated in the execution of the deed to the Burling street property, Veronicka Mayer was represented by an attorney who was acquainted with all the facts. He was familiar with her claims and she was following his advice. No fraud was practiced upon her, but with full knowledge of all the facts she executed this deed for the purpose of settling this litigation. She has no ground upon which to ask to have this deed set aside, and it was error for the superior court to so decree. There is also involved the question of the ownership of a piano, a sealskin sack, a sable boa, a fur muff and a gold watch and chain. By the decree of the superior court these articles were found to have been purchased with a part of the money acquired by the condemnation proceedings, and therefore the property of Mrs. Mayer under the will of her husband. This part of the decree is, we think, not supported by the evidence. The only testimony given in regard to the purchase of these articles by the daughter tends to show that the money used to purchase them was derived from the interest accruing on the principal sum realized from the condemnation proceedings and was not a part of the principal sum itself. Under the will of her father Anna McCracken was entitled to, the full use and possession of this property during her lifetime, and when the real estate became converted into cash by reason of the condemnation proceedings she was entitled to the interest on the fund thus created. Mrs. Mayer had no claim or right whatever to the interest or the earnings of this fund. Any property purchased by the daughter with the earnings of this fund, and any part of the earnings which may have been unexpended in her hands at the time of her death, became a part of her estate. Aside from this question, Veronicka Mayer, cannot now be heard to claim the sealskin sack, boa, muff and watch and chain. On January 12, 1906, McCracken filed his petition in the probate court for citation against Mrs. Mayer, and upon the hearing of the same she was ordered to turn over all the chattel property here involved, except the piano, to the administrator as the property of the estate. Mrs. Mayer complied with the order of the court and took no appeal. She is therefore estopped from claiming those articles at this time. The superior court erred in awarding the piano, sealskin sack, sable boa, fur muff and gold watch and chain to Mrs. Mayer. The administrator is entitled to the possession of those articles as a part of the estate of Anna McCracken. This disposes of the question of the title to all the property involved, and we now come to the question of the liability of Dennehy and McCracken. The superior court found that at the time Veronicka Mayer turned over the notes and mortgages which constituted the fund derived from the condemnation proceedings to Dennehy, as administrator of the estate of her daughter, she informed Mc-Cracken that such notes and mortgages belonged to her and not to the estate of her daughter, but that she did not so inform Dennehy. We have made a careful inspection of this record, and while it is true that Mrs. Mayer testifies in this case that she did so inform McCracken but that she did not say anything about the matter to Dennehy at that time, her testimony is not at all satisfactory on this point. She testified at the hearing on the petition in the probate court, and her testimony at that time on this same question was directly contradictory of the testimony she now gives. She admitted upon this hearing to having given such testimony in the probate court but made no attempt to explain the contradiction. We are of the opinion, based on the testimony of Veronicka Mayer alone, that she never told anyone that she claimed any interest in these notes and mortgages until McCracken informed her that Dennehy was ready to malee his final report and had fixed upon a date for the final settlement of the estate. Then for the first time Mrs. Mayer informed McCracken and Dennehy that she claimed to own these notes and mortgages. She then employed an attorney, and the various actions detailed in the foregoing statement were instituted by the several parties to this suit. Mrs. Mayer not only delivered these notes and mortgages to Dennehy without making any claim to having any interest in them and without giving him any intimation whatever that they did not belong properly to the estate of Anna McCracken, but, during the time intervening between then and the time of the giving of notice of final settlement, by various acts' treated this fund as properly a part of the estate of her daughter. At the time of her death, aside from the interest she had in this fund, Mrs. McCracken owned no property except her interest in the real estate on Burling street, and the piano, sealskin sack, boa, muff, watch and some small articles of jewelry. Aside from the notes and mortgages in question, none of this property was converted into cash, which fact was known to Mrs. Mayer. On June 16, 1905, Mrs. Mayer joined with McCracken in a written order on Dennehy to pay to M. Oberweis & Co. $85, to be charged to the account of the estate of Anna McCracken. This was for painting done by Oberweis on the Burling street property. At the time the first note for $500 and interest was paid, being one of the series of seven notes given by Anna Mc-Cracken and secured by trust deed on the Burling street property, Mrs. Mayer was present with McCracken and made no objection to the payment. She knew that the amount was paid by the check of Dennehy, given as administrator, and that it was paid out of the funds in his hands as administrator of the estate of her daughter. Up until she claimed to own this fund, in October, 1905, every act of Mrs. Mayer was calculated to induce Dennehy to believe that this property belonged to the estate of Anna McCracken and was properly in his hands as administrator. Dennehy has paid out none of the money in his hands, except for taxes and some costs and stenographer’s fees in connection with this litigation, since Mrs. Mayer notified him that she claimed to own this fund. He now contends by his answer to the bill in the superior court and under the proof made in the consolidated cases, that Mrs. Mayer should be estopped from holding him liable for anything except that portion of the funds remaining unexpended in his hands. By her actions in turning over to Dennehy these notes and mortgages as a part of the property of the estate of her daughter, and by continuing for more than a year to treat this fund as being properly in the hands of Dennehy as administrator, Mrs. Mayer led the administrator to believe that she had no interest in or claim to this fund and that the same was a part of the estate of her daughter. Having thus been led by the only person acquainted with all the ■ facts and with the identity of this fund to treat the same as a part of this estate, Mrs. Mayer is now estopped to claim from Dennehy any part of this fund which he had expended or paid out as administrator, under the belief that it was part of the estate of Anna Mc-Cracken, prior to the time when he was advised that Mrs. Mayer claimed to be the owner of the whole fund. “As a general rale, a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another and did so influence it, and when such denial will operate to the injury of the latter.” (Kinnear v. Mackey, 85 Ill. 96.) To the same effect are Baker v. Pratt, 15 Ill. 568, Smith v. Newton, 38 id. 230, and Hill v. Blackwelder, 113 id. 283. So in this case, Mrs. Mayer is estopped on account of her acts and admissions, which were expressly designed to influence the conduct of Dennehy, from denying that he had the right to treat this fund as a part of the estate of Anna McCracken, or that he had the right to pay out such sums as he did properly expend and pay out prior to the notice of her claim to the property. It is insisted by appellee that Dennehy having made partial distributions to McCracken without any order of court, should be held accountable for the amounts so paid. This estate was solvent. It was not shown that there was any indebtedness except the notes secured by trust deed on the Burling street property, and none of these notes were filed as a claim against this estate. If this fund had been a part of the estate of Anna McCracken, it being personal property and she having died childless and intestate, her husband would have been entitled to take the same as the sole and only heir. Before Mrs. Mayer asserted any claim to the fund the administrator had full right and authority to treat this as a part of the estate of her daughter. In making distribution, either partial or final, of the personal estate of Anna McCracken, the administrator owed no duty whatever to Veronicka Mayer to secure an order of court. She is not now claiming this fund as a creditor or as a distributee of the estate, but is claiming it upon the ground that the fund never was a part of her daughter’s estate. In the absence of fraud or misconduct on the part of Dennehy she cannot now question any of his acts in reference to this fund up until the time he was served with notice of her claim to the property. So far as she is concerned, it is immaterial whether Dennehy secured an order of the probate court, or not, before making the partial distributions he did make to McCracken. The superior court erred in its decree making Dennehy jointly liable with McCracken for payments made to McCracken by way of partial distributions before Mrs. Mayer asserted her claim to the property. Dennehy is only liable for the property remaining in his hands after allowing him for such costs and expenses as he is entitled to and the payments made to McCracken by way of partial distribution. The court properly held that the five promissory notes purchased by Dennehy, and which were secured by a trust deed on the Burling street property, were purchased by him in his individual capacity and not for the estate. He should account to Mrs. Mayer without reference to that transaction. Appellee contends that the superior court erred in holding that Dennehy should not be charged with interest upon the funds in his hands, and assigns cross-error upon this point. Dennehy collected the notes and mortgages turned over to him by Mrs. Mayer as the same came due, and deposited the proceeds in his own name or the name of the firm with which he was connected, and mingled it with his own moneys in his private bank account. It is shown that he always had on hand in such bank account a sum more than ample to pay the amount which he held as administrator, and that he never used this money in any way. In Williams on Executors (1309) it is said there are two grounds on which an executor or administrator may be charged with interest: “First, that he has been guilty of negligence in omitting to lay out the money for the benefit of the estate; second, that he himself has made use of the money to his own profit and advantage or has committed some other misfeasance.” (Rowan v. Kirkpatrick, 14 Ill. 1.) In discussing the liability of an administrator to pay interest on the funds of the estate in his hands, we said in Estate of Schofield, 99 Ill. 513: “The mere fact that an administrator mingles the trust funds with his own by depositing the money belonging to the estate in his own name, as he does his individual money, cannot be held a sufficient ground to charge the administrator with interest. We are aware of no law which requires an administrator to keep the funds belonging to the estate separate and distinct from his own funds, and in the absence of a legal requirement no liability can be incurred.” Dennehy made no use whatever of any part of this fund, and was ready at all times to respond to any demand which could be legally made upon him to pay it over. It was not error for the superior court to hold that Dennehy, whether he held this fund as administrator or as a trustee, should not be charged with interest on the same. As to the question of the amount which Dennehy is entitled to deduct for his expenses and compensation, it is conceded on the part of appellee that he should be entitled to the first claim made by him for attorney’s fees, amounting to $100, and to $35.65 costs in the probate court, all of which has been paid. In addition to this, he should undoubtedly be allowed the amounts paid out by him in the way of personal taxes upon the fund in his hands which is now the property of Veronicka Mayer. The costs now remaining unpaid in the probate court, the costs of the replevin suit, and the attorney’s fees, if any should be allowed by the probate court,, incurred in prosecuting the replevin suit, should not be deducted from this fund but should be realized by the administrator from the property of the estate of Mrs. McCracken in his hands. Veronicka Mayer having turned over this property to Dennehy as a part of the estate of her daughter, and having thereby induced him, as administrator, to assume charge of it and to collect the same as it fell due, we are of the opinion that he should be allowed commissions • to the amount of three per cent upon the amount collected by him on the notes and mortgages so turned over by Mrs. Mayer, which would be reasonable compensation under the facts in this case. He is also entitled to deduct from this fund the expense of making the transcript of the testimony of Mrs. McCracken on hearing in the probate court, for use in the superior court. Appellant McCracken is liable to Veronicka Mayer for the amounts paid to him from this fund as a part of his distributive share as the sole distributee of the estate of Anna McCracken. These items consist of $1000 paid September 3, 1904, $515 paid September 28, 1904, $530 paid March 28, 1905, and $85 paid June 17, 1905. The amounts so paid to McCracken on September 28, 1904, and March 28, 1905, having been paid for the purpose of taking up two of the notes secured by the trust deed on the Burling street property and the money having been used for that purpose, Veronicka Mayer is entitled to a lien on the Burling street property to the extent of the amount of those two notes, her lien to be co-ordinate with that of Dennehy under the trust deed securing the notes. McCracken should be required to first apply payments made by him to Mrs. Mayer, under the decree to be entered herein, upon that part of the amount due from him which is not secured by the lien on the Burling street property. The costs in the consolidated causes in the superior court should be adjudged against Veronicka Mayer. Complaint is made by appellee that McCracken was an incompetent witness to testify to any of the matters in controversy, and that the testimony of McHugh, the attorney for appellants, should not be considered as entitled to any weight. As the conclusions we have arrived at were not affected by the testimony of either of these two witnesses we do not feel it necessary to consider those points. The decree of the superior court is reversed and the cause is remanded to that court, with directions to enter a decree in conformity with the views expressed in this. opinion. Reversed and remanded, with directions.