Citation Numbers: 235 Ill. 27
Judges: Vickers
Filed Date: 6/18/1908
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court:
The decree of the court below finding that Albert J. W. Appell held the title to the premises in question in trust for himself and his brothers and sisters is not seriously controverted by any of the parties to this suit. No other conclusion can be reached when all of the evidence and circumstances is considered. The decree below setting aside the so-called trust agreement executed by Albert J. W. Appell is also in accordance with the weight of the evidence. While two of the parties signified their assent to the terms of the trust as expressed in the written instrument, yet there is nothing to indicate that they intended such agreement to be binding upon them unless all of the parties in interest assented to the agreement. We think that the assent of Charles S. and Paul H. Appell to the trust agreement was obtained upoii the condition that all of the other tenants in common should assent to such agreement. The other tenants in common having refused to assent to such agreement, it would be inequitable to hold these two parties bound by the terms of the trust that did not apply and could not be enforced as against the other parties in interest. In fact, the language of the so-called trust agreement shows on its face that it was intended to cover the entire interest in the premises, and it would be impracticable to carry it into effect unless assented to by all of the parties in interest. We therefore conclude that the decree setting aside the declaration of trust was properly entered.
Upon the issue presented by Louis Appell’s cross-bill in relation to his deed being procured by fraud and duress, the finding of the court below is clearly in accordance with the undisputed evidence in the case. There is no testimony which tends to show that the execution of the deed was procured through duress or fraud. It is very probable that Louis Ap-pell was sadly disappointed at the miscarriage of his plans to establish a country home for himself and his children, but this affords no reason for rescinding a deed which was voluntarily and freely executed by him.
Upon the question whether Louis Appell should have a lien for $1500 upon the farm we are constrained to differ from the view of the trial court. The evidence shows that Louis Appell had $15,000 invested in this farm and its improvements. In addition to this he spent $1500 for personal property that went upon the farm. He conveyed the farm and gave a bill of sale for the personal property to his children, and the only consideration that he received under the decree of the court below was the release by the children of their remainder in the $4000 legacy. The evidence shows that Louis Appell only received $3500 of the $4000 legacy. Plaintiffs in error contend that it was the agreement that Louis Appell was to have $1500 in addition, and that the payment of this $1500 was to be secured by a mortgage or lien upon the one hundred and sixty acres of land. All of the children except Edward T. and Mazie C. admit, either in their testimony or in their pleadings, that their father was to have $1500 additional and that it was to be secured to him by a lien upon this farm. Neither Edward T. nor Mazie C. Appell was a witness in the case. There is therefore no denial by any one in the record of the claim of Louis Appell for $1500. It is testified to by Paul H. that the first talk was that their father should have $2000 in addition to the release of the legacy, but that Edward T. objected to $2000 but consented to $1500, and that it was finally agreed to by all of them that $1500 should be the amount. Charles S. Appell testifies to substantially the same facts in relation to this matter as Paul H. He says that a part of the children wanted to give their father $2000 but that Edward T. objected but finally consented to $1500, both Edward T. and Mazie C. being present and consenting to the agreement as to the $1500. He also testifies that it was agre'ed that their father should have a mortgage or something to secure him for this money. He testifies that each one of the children individually expressed himself as satisfied with this arrangement. This evidence is corroborated by Louis Appell and is disputed by no one. Under this state of facts the court erred in ordering a partition of this land among the children without impressing upon it a lien in favor of Louis Appell for $1500. For this error the decree of the circuit court must be reversed.
The evidence shows that Alice E. Appell is a minor. As near as we can determine her age, she will be eighteen some time during the present year. The conveyance of the farm by Louis Appell to Albert J. W. for her use, and the agreement to release her' interest in the legacy, as well as all other agreements affecting her interest, are voidable at her election when she arrives at the age of eighteen. She may elect to repudiate the conveyance and insist upon her interest in the legacy. If she should so elect, the court would be compelled to restore her to her original rights. It is obvious that her best interest will be conserved by ratifying all of these contracts and proceedings after she arrives at her majority. She was brought into court by the writ of error in this case and a guardian ad litem appointed for her in open court upon the oral argument. Her guardian ad litem has joined in the brief filed by defendants in error. While the court has jurisdiction of her person for the purpose of a partition, yet the court has no power to compel her to exchange a legacy for real estate.
The decree of the circuit court is reversed and the cause remanded to that court, with directions to stay all further proceedings in this cause until Alice E. Appell becomes eighteen years of age. If upon her attaining the age of eighteen she shall file a ratification of the agreement between Louis Appell and his children as found and established by this opinion and shall execute the release and assignment of the legacy to her father, then the circuit court is directed to enter a decree for partition, awarding to Marcia E. Stafford two-sevenths and to Albert J. W., Charles S., Paul H., Sidney S. and Alice E. Appell one-seventh each, subject to a lien in favor of Louis Appell for $1500, with interest, and subject to the existing mortgage on the said premises for $2000 in favor of Henry Van-Horn. Should Alice E. elect to disaffirm the agreement, the contract will be rescinded as to her and she will be restored to all of her original rights. In such case she will retain her one-seventh of the legacy ánd Louis Appell will become the owner in fee of one-seventh of the real estate. Louis Appell should then be decreed a lien for $1500, with five per cent interest from April 1, 1906, on the other six-sevenths of the land. The costs in this court will be taxed against the interest of Marcia E. Stafford.
Reversed and remanded, with directions..