Schrayer v. McCarthy

Mr. Justice Taylor delivered the opinion of the court. Ida Schrayer, a widow, having died during the pendency of this suit — which was begun by her husband’s heirs for the assignment of her dower in and partition of certain real estate, and which suit had proceeded so far that the property had been sold with her consent, a deed given to the purchaser, the purchase money paid over to the master, and an order entered approving the master’s report of sale and receipt of the proceeds — the question arises whether her estate is entitled to such a portion of the proceeds of the sale as is substantially the equivalent of what would have been paid to her if she had lived until final distribution had actually been made. The chancellor decreed that her estate was entitled only to the sum of $58.57 as the yearly value of her dower interest for the time she lived after her husband’s death. From that decree this appeal was taken. The original bill was filed on March 10, 1919, by the heirs of Siegfried Schrayer, deceased, and was for the assignment of dower and partition of certain real estate. He died on October 11, 1918. His widow, Ida Schrayer, an original defendant, filed certain demurrers, and subsequently, upon stipulation, an amended bill of complaint was filed. The defendant, Ida Schrayer, filed an answer thereto. At a hearing, the chancellor found that the real estate was not susceptible of division and ordered it sold by the master, the widow being present at the sale and verbally consenting that it be sold free and clear of dower. Later, the widow and the complainants executed and delivered quitclaim deeds to the purchaser, conveying to him all their interest in said real estate. On April 1, 1920, the master filed a report of sale, and it was approved by the court, and an order entered confirming the sale. On July 17, 1920, an order was entered referring the cause to the master to take evidence as to solicitors’ fees and as to certain rents, and ordering the master to report the evidence and his conclusions, together with a report of distribution. Pursuant to the rereference, the master on November 4, 1920, filed his report, which contained the following: “That there was on hand for distribution the sum of $13,655.44, and of that sum Ida Schrayer is entitled to one-half as an heir and has a dower interest in the other half; computing the dower on the basis of 5 per cent, which I recommend. Ida Schrayer’s dower interest is $65,165 on every $100, subject to dower. One-half of $13,655.44 is $6,827.72. The dower interest in the other half amounts to $1,483.12, a total due Ida Schrayer of $8,627.20.” It was stipulated before the master that out of every $100 of the funds subject to dower the widow would be entitled to $59,008 if computed at 4 per cent; $65,165 if at 5 per cent; and $69,175 if at 6 per cent. In the report of November 4, 1920, the master recommended that out of the total receipts of $15,150.10, the sum of $1,494.66 be paid as court costs and solicitors’ fees, leaving a balance of $13,655.44; that out of that sum $8,152.64 should be paid to the widow as the equivalent of her inheritance of ■ one-half of the property and her dower interest in the other half; and that the balance, $5,502.80 should be divided equally among the five brothers and sisters of the deceased, Siegfried Schrayer. No objections were filed to that report, save by the widow, who objected to the allowance of $1,280 as solicitors’ fees. The master overruled the objections and on November 4, 1920, the chancellor ordered them to stand as exceptions. On November 25, 1920, before those exceptions had been disposed of, the widow died. On March 7, 1921, the complainants, the five brothers and sisters of Siegfried Schrayer, deceased, having obtained leave of court, filed a supplemental bill, setting up the death of the widow, and that she died testate leaving all her property to her four sisters, and making them and.the executor of Ida Schrayer’s estate parties defendant. It further set forth the history of the prior proceedings ; and alleged that the dower interest of the widow had terminated, and that her estate was only entitled to the yearly value of her dower from the death of her husband until her death, and praying that the balance be distributed among the complainants. The executor and the four sisters of the widow filed an answer in which it was alleged that the dower interest of the widow had already been fixed and that the court had lost jurisdiction save in so far as it was necessary to hear and determine the exceptions to such parts of the master’s report of distribution as related to solicitors’ fees. On March 15, 1922, the chancellor re-referred the cause to the master on the issues precipitated by the supplemental bill, answers and replications. Evidence was taken and the general history of the proceedings in court and at the sale were stipulated, and on May 17, 1922, the master filed his report. In that report he found as a matter of law that, at the time of the death of the widow, her interest in the real estate had not been assigned, and that her estate was only entitled to $58.57, being for the yearly value of her dower interest from the time of the death of her husband to the time of her death. The dower interest allowed in his former report was $1,494.66. To the master’s report of May 17, 1922, the defendants filed objections, claiming that after the sale of the property, and as a result of the conduct of the parties and the orders of the court, the widow was, in her lifetime, entitled to receive the value of her dower in a lump sum of money out of the proceeds in the hands of the court. Those objections were overruled, and, afterwards, ordered to stand as exceptions. On June 22, 1923, the chancellor entered a final decree. It was based on a consideration of the exceptions to the master’s reports of November 4, 1920, and May 17, 1922. It sustained the exceptions as to solicitors’ fees, and overruled those in regard to the amount for dower in the report of May 17, 1922. It decreed that the dower interest was $58.57, and not $1,483.12; that the widow’s estate was only entitled to the yearly value of her dower interest during the time she lived after her husband’s death. It is the contention of the defendants that the consent of the widow to a sale of her dower interest, the actual sale of her interest pursuant to such consent, her joining in the quitclaim deed to the purchaser, the stipulation of the parties as to the proportion of the funds to which she would be entitled, i. e., the amount per $100, and the master’s report of November 4, 1920, finding the sum in gross to which she was entitled for her dower to which no objections were filed, all taken together entitled her to a lump sum in lieu of dower, and that upon her death it passed by her will to her executor for the benefit of her legatees. Inasmuch, however, as the partition and dower proceedings did not ripen into a final order until after her death, the only question that we are justified in considering is whether the conduct of the parties brought about a status which gave rise to such rights on her part that it would be illegal to consider her dower interests as terminated by her death. "What the master did by way of recommendation and report was merely advisory; it did not constitute an order of court. In a court of chancery judicial orders and decrees are made only by the chancellor himself. But, was there an agreement in paisf If, in the course of the hearing before the master, the parties made a stipulation, in other words, an agreement which sanctioned the widow’s right to a gross sum to be taken from the proceeds of sale, a court of equity would enforce it. Sill v. Sill, 185 Ill. 594; Kepcha v. Lowman, 249 Ill. 118. By the order of reference of July 17, 1920, which was made after the sale and its approval, the master was “to take evidence in the matter of the allowance of a solicitor’s fee for complainants herein, in the matter of setting apart the dower interest of defendant, Ida Schrayer, and also in the matter of an accounting of the rents collected” by her. At a hearing under that reference, a stipulation was made, for all the parties, “that out of every $100 of the portion of these funds, subject to dower, the defendant, Ida Schrayer, is entitled to receive the sum of $59,008 if the rate of 4 per cent is deducted; $65,165 if the rate of interest of 5 per cent is deducted; $69.75 if the rate of 6 per cent is deducted.” Pursuant to the order of reference and that stipulation, the master computed the widow’s dower at 5 per cent, that is $65,165 on each $100 subject to dower, and recommended that the widow’s dower be fixed at $1,483.12, and allowed in that sum. Ho order confirming that recommendation having been made by the chancellor, was it, nevertheless, binding? The complainants “stipulated and agreed,” in so many words, that “the defendant, Ida Schrayer, is entitled to receive the sum of $65,165 if the rate of interest of 5 per cent is deducted.” The only thing the agreement left for the master to do was to determine whether he would make the computation at 4, 5 or 6 per cent. We may assume, with reason, that counsel for the widow in their future conduct of the proceedings relied upon that agreement. Without that agreement they might have made no objection to any part of the master’s findings,» and have had a decree entered before the death of the widow. Ho case has been cited that is an exact parallel, and that is not surprising as such facts are always apt to be unique. Further, the fact that the complainants did not object to the master’s finding of $1,483.12 as a lump sum for her dower interest is some corroboration of the claim that the stipulation and agreement was recognized by them as binding. It follows, therefore, that as the parties had agreed that the widow was entitled to receive a lump sum for her dower interest, and proceeded on that basis, it was error to ignore that agreement and only allow dower based on the time that elapsed between the two deaths. Klein v. Klein, 276 Ill. 520. The decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. Reversed and remanded with directions. O’Connor, P. J., concurs.