People v. Sholem , 244 Ill. 502 ( 1910 )

Jacob Sholem died at his home in Paris, Edgar county, on March 1, 1907, leaving a last will and testament, and leaving Jeannette Sholem, his widow, and Samuel Sholem, Maurice Sholem, Emma Straus, and Elizabeth Bibo, his children and heirs at law. The will was admitted to probate, and Jeannette Sholem and Samuel Sholem were appointed executors, and qualified as such, but did not file an inventory. On August 12, 1907, the Attorney General filed his petition in the name of the people, in the county court, asking for an appraiser to fix the value of the estate for the purpose of the inheritance tax, and citation was issued the next day against the widow and heirs. The executors came into court and filed a like petition, and on August 19, 1907, an appraiser was appointed, who took evidence as to the amount and value of the estate, and made a report that the total net value of the estate for taxing purposes was $218,590.35. The report was approved by the county judge on April 24, 1908, and from the order of approval an appeal was taken by the people to the county court. The county court dismissed the appeal on August 31, 1908, but this court reversed the order dismissing the appeal, and remanded the cause to the county court for a hearing and decision by the court. People v. Sholem, 238 Ill. 203, 87 N. E. 390. The proceeding was reinstated in the county court, and upon a hearing by the court an order was entered fixing the total taxable value of the estate at the same sum of $218,590.35 and fixing the total amount of the inheritance tax at $1,452.14, with interest at 6 per cent. from March 1, 1907. From that judgment the people again appealed to this court.

At the hearing in the county court counsel for the people asked for an order requiring the executors to file, by a day to be fixed by the court, a complete and perfect inventory of the property, real and personal, of Jacob Sholem, or in which he had an interest at the time of his death, which had come to their knowledge and possession. On objection being made the judge said he would take the motion under advisement, and counsel for the people excepted to the failure of the court to make the order asked for. The sons, Samuel Sholem and Maurice Sholem, claimed that they were equal partners with their father, Jacob Sholem, in business, and that there was a resulting trust in their favor in lands of great extent and value which stood in the name of Jacob Sholem, but were purchased with partnership funds. The existence of the partnership and the claim of the two sons to two-thirds of the real estate had been the principal subject of contention before the appraiser, and counsel for the people also asked for an order on Samuel Sholem and Maurice Sholem, as surviving partners of the alleged copartnership, to file a full and complete statement of the partnership, showing the partnership property and its assets and liabilities at the time of the death of Jacob Sholem. Objection again being interposed, the judge said he would take the matter under advisement, and counsel for the people excepted to the failure to make the order asked for. The court did not then or afterward make any order for either inventory, but heard and decided the case and entered final judgment without doing so, which amounted to a denial of the motions. endeavor to ascertain, by means of witnesses, what property the estate had. The court erred in declining to make the orders asked for.

It is said, however, by counsel for the appellees, that the judgment ought not to be reversed if the ruling was wrong, for the reason that the people obtained all necessary information through the examination of witnesses. It may be that all the property of the estate was discovered, and it may be that it was not, and in any event the people were required to take up an unnecessary burden. We cannot say that the property was all disclosed, and much complaint is made that the court excluded competent evidence tending to show the amount of the estate. An effort was made to discover assets in the form of loans and mortgages on real estate in Edgar county, and the offered evidence was excluded by the court. Whether the rulings were right or wrong, it cannot be said that it made no difference that the court did not require the executors to make an inventory of all the property which had come to their hands, possession, or knowledge, or that an inventory, under oath, by the surviving partners would have been of no use to the people.

There was a large amount of property in the name of Jacob Sholem Sons employed in the clothing and dry goods trade and other forms of business, and it was claimed by Samuel Sholem and Maurice Sholem that they had been equal partners with their father under that firm name since the year 1873, and together owned two-thirds of the partnership property. The evidence was that the father, Jacob Sholem, was engaged in business in Paris. Edgar county, in his own name prior to 1873, and had three or four stores and was worth probably $40,000. He took his two sons, Samuel and Maurice, out of school when they were 13 and 15 years old, respectively, and put them in his store. About the year 1873 Jacob Sholem agreed verbally with the minor sons to run the different branches of business as one business and as a partnership. He told them the business was theirs and his, and he changed the business sign to "Jacob Sholem Sons." From that time the bank accounts were kept in the name of Jacob Sholem Sons, and the book accounts were kept in that way, and either one of the three wrote checks in the name of the firm. No stock book or record of sales were ever kept, and no account was kept with the individual members of the firm, but each one had his living out of the business. There was never any account of profits or any division between the parties, and no inventory was ever taken until after the death of Jacob Sholem, when there was a sale in view and an inventory was begun, but the sale fell through and the inventory was never completed. Whenever there was any surplus it was invested in real estate or loaned, and the real estate paid for with the funds of the partnership was conveyed to Jacob Sholem. When each of the four children were married the father gave them homes and wedding presents which amounted in each case, to the neighborhood of $25,000, and this was done by taking money of the firm. Jacob Sholem would draw a check on the firm account for the gifts so made.

Counsel for the people contend that a partnership was not proved, and that Maurice and Samuel Sholem, the surviving partners, who testified to the existence of the partnership and the agreement, were not competent witnesses for that purpose. As they were called and examined on behalf of the people, and no objection was made at any time to their competency, the objection cannot be made, and will not be considered. Whether they were competent witnesses or not, there was sufficient other evidence to prove a partnership. Written articles of agreement are not necessary, but a partnership may exist under a verbal agreement, and circumstances may be sufficient to raise an inference of an agreement. Haug v. Haug, 193 Ill. 645, 61 N. E. 1053. The fact that the boys went to work in the store would not alone justify such an inference, but the change in the sign and the bank accounts and transacting the business in the name of Jacob Sholem Sons for a long term of years after the sons reached their majority, together with other circumstances, justify a conclusion that there was a partnership. There was a large amount of real estate standing in the name of Jacob Sholem, but bought with the funds of the partnership. There was a resulting trust in the real estate in favor of Samuel Sholem and Maurice Sholem in proportion to their interest in the partnership, which was one third to each. Crone v. Crone, 180 Ill. 599, 54 N. E. 605.

It is urged that the court erred in excluding evidence offered to show the ownership of mortgages by Jacob Sholem or the firm, in the effort to show the existence of property of the estate in the absence of an inventory, but those questions are not likely to arise when an inventory has been filed. Of course, an inventory will not be conclusive, but if it is claimed that property has been omitted, the inquiry will be confined to such omitted property, and we apprehend there will be no difficulty, in that event, in making the necessary proof.

The judgment is reversed, and the cause remanded to the county court for further proceedings in conformity with the views herein expressed.

Reversed and remanded.