Todd v. Todd , 56 Ill. App. 392 ( 1894 )

Mr. Justice Harker

delivered the opinion of the Court.

This is a controversy between two brothers, devisees of their uncle’s will, as to who shall recover $3,500, the proceeds of an interest-béaring bond which was discovered in the possession of the C., B. & Q. B. B. Co., twenty years after the death of the uncle and twelve years after his estate had been administered upon. The bond was purchased by an agent of the uncle in his lifetime but was never delivered to him. He was the owner of considerable property and was accustomed to deal to some extent in railroad securities. At the time of his death, he owned C., B. & Q. B. B. stock, Quincy Bridge stock, American Central B. B. stock (reported by the executor), and the bond in question, supposed to be C., B. & Q. stock. From the testimony of the executor, Martin Skallenburger, who was the legal and confidential' adviser of deceased, we gather that the deceased understood that $1,000 which he had placed in the hands of an agent for investment, had been invested in O., B. & Q. B. E. stock, when, as a matter of fact, it had been invested in a $1,000 Kansas City & Cameron Bailroad bond bearing ten per cent interest.

As a basis of his right to the fund, appellant set up that provision of the will which devised all the “ other personal ” estate to himself and appellee, and the execution and delivery to him, of an assignment of appellee’s interest in the personal estate (excepting railroad stock) made July, 1872.

Appellee claims it upon the ground that it was always supposed by the parties that the fund represented by the bond was railroad stock, and that a contract was made with appellant at the time he delivered a release of his interest in the personal estate to him that such 'fund, when discovered, and in whatever shape, should belong to and be the property of appellee.

There is a sharp conflict in the testimony of the parties. A careful consideration of it in connection with the testimony of the executor satisfies us, however, that it was understood and agreed by the parties that the bond, or fund, should, when found, be turned over to appellee.

We are of the opinion that the parties both understood before, at the time of, and subsequent to the execution of the release, that the fund was in railroad securities and that appellant agreed that when it should be found, it should be treated as such and taken by appellee.

Appellee is entitled to the fund, not by virtue of the will, but by his contract. While the release executed by -him released all his interest as heir and devisee, it did not release an interest which he had by contract or purchase from appellant.

The term railroad stock did not 'include the $800 in uQuincy Bridge stock any more than it did this bond. Considering the release, with these two 'funds in view, there was a latent ambiguity which it was proper to explain by parol evidence, it would seem. But we are clearly of the opinion that appellee established his claim to the fund by contract, and, therefore, agree with the Circuit Court. Decree affirmed.