Ames v. Ames

Mr. Justice Craig

delivered the opinion of the Court:

To reverse the decree of the circuit court the complainants in the bill appealed to the Appellate Court, where, on motion, the appeal was*dismissed. Complainants then took an appeal to this court, and the first question presented is, whether the Appellate Court had jurisdiction to entertain the appeal. Tie bill was brought for the partition of lands, and this court has held in a number of eases that a freehold is involved in a proceeding of this character. (Carter v. Penn, 99 Ill. 390; Bangs v. Brown, 110 id. 96.) As a freehold was involved the Appellate Court Rad no jurisdiction, and the judgment dismissing the appeal was correct.

It is also insisted that the writ of error should be dismissed, upon the alleged ground that the decree of the circuit court is not final. The decree denied absolutely 'a partition of theMinonk property, and the other lands were decreed to be divided, and commissioners appointed to make the partition. We think the decree was final, so far, at least, as to authorize an appeal or writ of error. This view is fully sustained by Allison v. Drake, 145 Ill. 500, where the same question arose. In deciding the case it is there said: “We are of the opinion that the decree is final, so as to authorize an appeal to this court. * * * A final decree is not necessarily the last order in the case, as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined, but when it finally fixes the rights of the parties it is final, and may be reviewed on appeal or writ of error. * * * This is done in the present decree, and the proceedings under the order of reference are only in the nature of an execution of the decree. ”

It is also claimed that the writ of error should be dismissed because not prosecuted by the neit friend appointed by the court. Irene C. Ames, the mother of the complainants, as next friend, filed the b.ill in the circuit court. On June 20, 1892, Irene 0. Ames was withdrawn as next friend and John E. Seinwortli was appointed by the court, but this writ of error was sued out in the name of the minor complainants by John K. Cowan, their next friend. The prosecution of this writ of error was the commencement of a new suit. ‘Section 5, chapter 22, provides that suits in chancery may be commenced and prosecuted .by infants, by guardian op next friend, while section 3, chapter 106, entitled “Partition,” provides that infants may petition by guardian or next friend. Under the statute we do not think the minor complainants were bound to prosecute the writ of error by the person named as next friend in the circuit court, but a different person might be selected if they thought proper, and the fact that a different person has been selected as next friend to prosecute the writ of error is no valid ground for a dismissal of the writ. The motion to dismiss the writ of error will be denied.

Many questions have been discussed by counsel for the respective parties in the able arguments presented for our consideration, but in the view we take of the record it will not be necessary to consider all the matters raised and argued in the briefs, but we will content ourselves with considering such questions as we think must settle the rights of the parties in interest.

As will be observed, this bill was brought on behalf of minors, for partition, and it is claimed, on the one hand, that as a matter of right they are entitled to a- partition of the lands involved, while, on the other hand, it is claimed that a court of equity has a discretionary power to grant or refuse the relief prayed for, as the court may think for the best interest of the minor complainants, in view of the evidence presented by the parties bearing on the question.

Section 1, chapter 106, of the Eevised Statutes, entitled “Partition,” reads: “When lands, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof by a bill in chancery, as heretofore, or by a petition in the circuit court of the proper county, or if the proceeding is in the county of Cook, in the circuit or Superior Court of said county.”

It must be admitted, if this section of the statute is to be given a literal construction, all persons holding lands as tenants in common, whether infants or adults, would be entitled, as a matter of right, to obtain partition by bill in equity, because the statute so reads. We are not, however, inclined to place a construction on the statute which would compel a court of equity to award a partition where a bill is brought by a minor, regardless of consequences. Where a bill is brought by an adult he has an absolute right to partition, and the court has no right to take into consideration whether the continuance of the joint ownership of the lands would or would not be to his advantage. But the protection of infants and their estates is a duty enjoined upon courts of equity, when the jurisdiction of such courts is invoked on behalf of infants or their property. Where a court of chancery is called upon, by a bill of equity, to partition lands in behalf of infants, it is the duty of the court to inquire whether the partition, if granted, will result beneficially to the minor, or to his detriment, and if, upon investigation, it turns out that partition is not for the best interest of the minor, then partition ought to be denied. This view is well expressed by Freeman on Co-tenancy, sec. 457, as follows: “An adult, when not followed by special obligations existing independent of the co-tenancy, has an absolute right to partition, and the court to which the application is properly presented has no authority to consider whether the further continuance of the co-tenancy would prove more or less advantageous than a partition. But the protection of infants is one of the duties with which courts of equity are specially charged. When the court to which an application for partition is presented on behalf of an infant is a court of equity, or one authorized, in matters of partition, to exercise a chancery jurisdiction, it not only may but ought to inquire whether the proposed partition will operate to the prejudice or to the benefit of the infant petitioner, and if, as the result of such inquiry, the conclusion is reached that the partition will not prove beneficial, it ought to be denied.”

In Hill v. Reno, 112 Ill. 154, it was held that partition was a matter of right, and a court of equity was not clothed with discretion to grant or refuse the relief. But in that case infants were not before the court, and the decision had reference to an application on behalf of adults.

The absolute right of partition, by bill in the name of infants by next friend, arose in Hartman v. Hartman, 59 Ill. 103, and the court held the right was not absolute in ail cases. It is there said: “A general superintendence of infants is now exercised in courts of chancery, as a branch of general jurisdiction. Indeed, it is one of the peculiar duties of courts of equity to protect the rights of infants. From the earliest period, courts of chancery have been vested with a broad and comprehensive jurisdiction over the persons and property of infants. (Cowls v. Cowls, 3 Gilm. 435; Grattan v. Grattan, 18 Ill. 167; King v. King, 15 id. 187.) The power and duty of the courts in this regard are clearly shown by Judge Story, 2 vol. Eq. Jur. ch. 35. He says: ‘Whenever a suit is instituted in the court of chancery, relative to the person and property cAf the infant, although he is not under any general guardian appointed by the court, he is treated as a ward of the court, and as being under its especial cognizance and protection.’ This proceeding has been instituted in behalf of the minors. No-reason has been shown why partition should be granted. We can not perceive that it would be for the interests of the minors to grant the division.”

There are eases holding a different rule, but we believe the law, as declared by this court, in harmony with the decided current of authority bearing on the question, and we perceive no reason why the court should depart from the rule of law heretofore established.

If the evidence in this case established the fact that the granting a decree of partition on behalf of the minor complainants would result prejudicially to them, and their property would be liable, as a result of a decree, to be sacrificed or lost, then the court, in the exercise of its chancery jurisdiction, was clothed with undoubted power to deny the relief and dismiss the bill. But, as has been seen, this course was not pursued. After a large amount of testimony had been taken and the master in chancery had filed his report, in which he found that it was for the interest of the minors that partition he made or the property sold in the ordinary course of law, the court appointed the Chicago Title and Trust Company receiver of the real and personal property of the deceased, including one hundred and eighteen railroad coal cars. The receiver was authorized to operate and conduct the mine, tile works and store, and to rent any part of the real estate. This decree was entered on June 20, 1892. On June 23—three days later—the adult heirs filed in court a proposition in writing to lease all the Minonk property during the minority of the minors, and for the purchase of the railroad cars and certain other personal property, including the stock of goods and tile in possession of the receiver,—which proposition will be found in the statement. The court,. in its decree, after-reciting .the proposition in detail, decreed that the receiver-execute a lease to the adult heirs, of the Minonk property, according to the terms of the stipulation, and authorized them to take possession of the property, conduct the business of' mining coal and making tile, conduct the store, rent the tenement houses and farms, and conduct the business as it had heretofore been conducted, and also that the receiver sell, them the railroad cars and the stock of goods, etc. The decree also provided:

“And it is further ordered that said Knowlton L. Ames, as representative of all said adult heirs, shall, under the direction of said receiver, manage said business, and he shall be allowed therefor the sum of $200 per month for the period of three years from this date, as compensation for his services to be rendered, which shall constitute part of the expenses in the conduct of said business, and after the expiration of said three years he shall be allowed such sum for his services as the court may hereafter direct, and that said adult heirs shall make a statement monthly to said receiver of all their acts and doings in and about said business, and shall keep proper-books of account, which shall at all times be open to the ex-animation of said receiver; that said adult heirs shall be subject to the direction of the court, from time to time, through said receiver, and said receiver shall exercise supervision over the management of such business, but it shall not be permitted to change or interfere with the conduct thereof, except as may be directed by the court; that said receiver shall not be required to give its time and attention to the details of the said business, but shall only have a supervision thereof as above provided; and shall receive compensation at the rate of $500 per annum, until otherwise ordered by the court. And it is further ordered by the court that said adult heirs furnish all money necessary to conduct said business, including said store at Minonk, and that they be allowed interest upon such advances, which shall be charged as part of the expenses of said business.”

The appointment of a receiver in a partition proceeding is not of frequent occurrence, but, pending the litigation, we think the law is well settled that the court has ample power, upon a proper showing, to make the appointment. Freeman on Co-tenancy, after discussing the question at some length, (see. 327,) concludes as follows: “In partition, the court will' appoint a receiver during the pendency of the action, to preserve the complainants from serious loss, when it is shown that they are unable to rent portions of the property, or to collect rent of other portions rented, in consequence of the conduct of the defendant. ” Beach on Receivers (see. 492) says: “Whenever it appears, during the prosecution of a suit between tenants in common or joint tenants, that a receiver is necessary to protect the interests of all parties, the court will, upon a proper application, appoint a receiver of the property.”

The appointment in this case, however, does not seem to have been made to preserve the property pending the litigation between the co-tenants. The decree contemplates that the receiver was to be continued for sixteen or seventeen years. The property of the complainants is by the decree taken out of their hands, and out of the hands of their guardian, who was appointed by the probate court, and placed in the hands of the receiver, and he is authorized by the decree to lease it to the adult co-tenants on certain specified terms and conditions, and thereafter supervise the business as conducted by them. In other words, a large portion of’the estate of the minor complainants, without their consent or the consent of their legal guardian, is taken away from them and invested, during their minority, in farming, coal mining, manufacturing tile and selling goods at retail. Receiver’s fees, and, of course, necessary attorney’s fees to advise and direct the receiver, and court costs, are to he charged against their property, and they are to be charged with interest advanced by their co-tenants on moneys they may use in the business. Knowlton L. Ames, one of the adult heirs, is allowed $200 per month as manager of the business for the period of three years, and how much more after that period is not disclosed. There are doubtless many other charges this property will be required to pay if it should remain invested as provided by the decree. It is true that Ames, in his lifetime, conducted the business successfully, and the business has also prospered under the management of his widow; but it by no means follows that the court, acting through its receiver, aided by the adult co-tenants, will be able to carry on the business during the next sixteen or seventeen years in such a manner that the minor complainants may be able to realize a profit from the investment. Since this proceeding was commenced, as appears from the record, the tile works have been destroyed by fire. The same misfortune may overtake the store. Mining may prove unprofitable, and the demand for tile may cease. Accidents may result to the miners, for which those operating the mine may be compelled to respond in heavy damages. Other unforeseen misfortunes may overtake the enterprise in which the adult heirs and the receiver are about to engage under the decree of the court, which may result injuriously to the property of the minors.

In view, therefore, of the nature and character of the risk, was the decree one which, under all the facts and circumstances, a court of equity ought to have rendered ? The property and funds of infants should be invested where the principal will be absolutely safe, and where there may be a certainty of income. There may be cases, but we are aware of none, where a court of equity has authorized, by decree, the funds of minors to be invested in mercantile and manufacturing pursuits. Where minors own property producing little or no income, courts of equity may, upon a proper showing, order a sale and the proceeds re-invested in more productive property. So, also, minors’ unproductive property may be improved by constructing buildings upon it, by the authority and direction of courts of equity. But cases which sanction such proceedings lend no aid to a decree authorizing a receiver of court to invest the property or funds of minors in a venture like the one here involved. It is a well-known fact that in many manufacturing plants much of the capital is invested in real estate, and if the rule was once established that courts of equity would take charge of minors’ property descending to them from persons engaged in manufacturing business, and keep such property invested in the business during minority, through the instrumentality of receivers, courts would soon be filled with such cases. Courts of equity, in our opinion, are not organized for such a purpose.

It is claimed that the,property is so situated that it can not be divided among the heirs, and a sale will result in a loss to the different owners. Whether the property can or can not be divided, is a question which can not- be known until commissioners have been appointed and made an examination of the property and returned their report to the court.' But should it turn out that the property was not sus-. ceptible of division, and a sale should be ordered, a court of equity has ample power, in its decree, to guard the rights of the parties, so that their interests will not be sacrificed, but on a sale bring all that it may reasonably be worth in the market.

Attached to the master’s report we find the following statement of the property embraced in the bill:

1900 acres of mining rights, at $20............................. $38,000

70 acres of surface adjoining shaft, at $100..................... 7,000

Shaft machinery and works................................... 75,000

Pit cars and fixtures..................................'......... 7,000

$127,000

Lots in Minonk owned in fee.................................. 8,000

1 tenement.................................................... 850

39 tenements, at $250.......................................... 9,750

1 tenement................................................... 800

29 tenements, at $400.......................................... 11,600

$158,000

Catón lands................................................... 42,000

Minonk farms, surface, at $90, 1200 acres...................... 108,000

Braidwood................*.................................... 10,000

Mize=$5000, less life estate................................... 3,500

Prairie avenue................................................ 72,500

$394,000

The master also attached to' his report, as a part thereof, the following offer made by Mrs. Ames, the widow of the deceased : “First, for the property enumerated in this statement, and valued at $158,000', if the dower of Mrs. Ames is awarded in gross or assigned to that property, Mrs. Ames will, if a sale shall be necessary, furnish a purchaser at that sum; second, for the property enumerated in this statement, and valued at $127,000, Mrs. Ames will furnish a purchaser at that sum if the sale shall be necessary, it being understood that her dower shall be awarded fairly, and assigned, but not necessarily in gross; third, for the performance of these offers she offers to give adequate security; fourth, if the mines shall be awarded to her children, she offers, within three months thereafter, to find a purchaser for the same, at a price to be fixed by the probate court.”

This offer would seem to indicate that if the property was decreed to be sold it was not liable to be sacrificed for the want of bidders. But disregarding this offer entirely, we apprehend there would be no trouble, should it become necessary to decree a sale of the property, if the rights of the parties are properly guarded in the decree and the Minonk mining property sold as an entirety, which should be done, to sell it for all that it is reasonably worth. Common observation will demonstrate The danger of loss to persons of experience, skill and business ability,' who are engaged in mercantile and mining business with large capital and good credit. Why, then, should the property of these minors be invested for seventeen long years in a business to be managed by one of the co-tenants, who, so far as appears, has had no experience whatever, and no capital except his interest in the estate of the deceased? It seems apparent to us that a court of equity should not lend its aid or give its sanction to an investment of minors’ property in a business so likely to result in loss and disaster.

It appears that on the 9th day of November, 1891, before any action was taken by the circuit court in regard to the control of the minors’ property, Irene C. Ames was appointed, by the probate court of Cook county, guardian of the minors, and qualified as such. Under our statute the probate court is clothed with jurisdiction in all matters of probate, settlement of the estates of deceased persons, appointment of guardians and conservators, and the settlement of their accounts. (Shepard v. Speer, 140 Ill. 244.) Under chapter 64 of the statute it is the duty of the guardian to loan the money of the ward on security to be approved by the probate court, and to lease the real estate of the ward upon such terms, and for such length of time not beyond the majority of the ward, as shall be approved by the probate court. Here the probate court had acquired jurisdiction over the guardianship. The guardian who had been appointed by that court had ample authority, under its direction and approval, to lease the minors’ property upon such terms and conditions as might be thought for the best interest of the minors’ estate. There are cases where a court of equity may take upon itself the administration of estates; but, as held in Freeland v. Dazey, 25 Ill. 296, a court of chancery will not exercise this jurisdiction except in extraordinary cases, where some special reasons are shown to exist why the administration should be withdrawn from the probate court. So in Harding v. Shepard, 107 Ill. 273, it was held that a court of chancery will not, except in extraordinary cases, supersede the probate court in the administration of an estate. So far as appears, no reason existed why the control of the minors’ property in this case should be taken from the j urisdiction of the probate court and transferred to the circuit court.

But it is said the circuit court acquired jurisdiction before the probate court appointed a guardian. The bill in this case was filed July 10, 1891, and the guardian was appointed by the probate court November 9, 1891. Upon looking into the record it will be found that the bill was brought merely for partition and assignment of dower. The complainants did not ask for the appointment of a receiver, or that the property should be leased. That element was brought into the ease by the cross-bill of the defendants the adult heirs, filed on the 7th day of January, 1892,—two months after the probate court had appointed a guardian and the guardian had duly qualified. When, therefore, the probate court assumed jurisdiction of the guardianship, the circuit court had not taken jurisdiction, and the probate court having first obtained jurisdiction was entitled to retain it, unless some special reason should be shown why the guardianship should be withdrawn from the probate court. If it was thought advisable to lease the mine, or the tile works, or the tenement houses, or the farming lands, or any other portion of the property, the guardian, under the direction of the probate court, had ample power to act as respects the interests of the minors, and if the adult heirs refused to co-operate with the guardian, so that the entirety of any portion of the property could not be leased, that should not be regarded a sufficient reason for a court of equity to step in and oust the probate court of its jurisdiction over the minors’ property.

The decree will be reversed and the cause remanded, with directions to the circuit court to allow the partition proceedings to proceed in the ordinary manner.

Decree reversed.