Bradford v. Bennett

Opinion of the Court, the

Hon. George W. Wall, Judge.

The most important question arising in the case is involved in the point made last in the brief of appellant, i. e., whether the common law rule of survivorship in respect to personal property jointly owned prevails in this State %

If this question can be answered affirmatively the' complainants in the bill had no standing in court.

We are persuaded the rule has been abolished by statutory provisions in force since January 13, 1821.

Sections 1, 2, 3 and i of the act then passed, entitled ££ An Act concerning partitions and joint rights and obligations,” are as follows:

££ Section 1. That all joint tenants or tenants in common, who now are, or hereafter shall be possessed of any estate of inheritance, or estates less than those of inheritance, either in their own rights, or in the rights of their wives, may be compelled to make partition between them of such lands, tenements or hereditaments, as they now hold, or hereafter shall hold, as joint tenants or tenants in common. Provided, however, that no such partition, between joint tenants or tenants in common, who hold or shall hold, estates for life or years, with others holding equal or greater estate, shall prejudice any entitled to the reversion or remainder, after the death of the tenants for life, or after the expiration of the years.

££ Section 2. That if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common.

££ Section 3. That for assuming and exercising exclusive ownership over, or taking away, destroying, lessening in value, or otherwise injuring or abusing the thing held in joint tenancy, tenancy in common, or parcenary, the party aggrieved shall have his action of trespass or trover for the injury, in the same way as if such joint tenancy, etc., did not exist.

“ Section 4. That all joint obligations and covenants shall hereafter be taken and held to be joint and several obligations and covenants.”

In the revision of 1833, p. 473, the same provisions are found under the same title, but in the revision of 1845, section 1 was transferred in substance to chapter 79, entitled, “ Partitions ” while sections 2, 3 and 4 became sections 1, 2 and 3 of chapter 56, entitled, “joint rights arid obligations,” and so the provisions may be found in the revision of 1874, chapters 76 and 106. In the revision of 1845 a slight change was made in section 3, the words “any property” having been substituted for the words “ the thing.”

It seems reasonably clear that section 2 of the act of 1821 being section 1 of the present chapter 76, is broad enough to include personal as well as real property, and that some of the phraseology, to wit, that referring to transmissibility to executors and administrators, is especially applicable to personal estate.

Section 3 of the original act, section 2 of chapter 76, manifestly includes a reference to personal property held in joint ownership and has been so construed by our Supreme Court. Benjamin v. Stremple, 13 Ill. 466; Boyle v. Levings, 28 Ill. 314; German Rational Bank v. Meadowcroft, 95 Ill. 124.

Regarding these sections together, as we necessarily must, strengthens the position of the appellee. After a full consideration of all arguments adduced by counsel we are satisfied with the conclusion reached by the Circuit Court on this branch of the case.

Returning now to the points made by appellant in the order as they appear in the brief, it is urged first that the relief is not within the jurisdiction of a court of equity. This objection does not appear to have been pressed in the court below, and the position now taken that an adequate remedy at law is afforded by the statute in reference to administrations should not be presented for the first time in this court. Chicago Theo. Sem. v. Gage, 103 Ill. 175. But Ave think the subject-matter and the conditions are such that the County Court could not adequately deal with the rights of the. parties and that a resort to chancery was proper, and indeed, necessary.

The next point, that necessary parties were omitted, must also he overruled.

There was no attempt to administer the estate generally, .but merely to withdraw from the hands of the administrator a, certain fund, as not belonging to the estate, and to place it in the hands of a trustee to be managed according to certain directions contained in the will of Mrs. Bennett.

In this connection may be noticed the point fifthly made, that the decree is erroneous in charging the estate of Samuel II. Treat with any act or default of his as executor or trustee under said will. It is true the executor named in the will did not present the same for probate and did not formally act as executor, but he assumed to manage, handle and control the property affected by the will and there was evidence tending to show that he recognized it as the property of the testatrix and as subject to the testamentary provisions. We are unable to see any force in this objection.

A further point is made that there has been no such identification of the trust fund, or of its proceeds, as will enable the court to lay hold of any property in the hands of the administrator as impressed with the trust. A majority of the court are of opinion this point is not well taken, and that the decree in this respect is sufficiently supported by the proof.

The statute provides that where a decedent has received money in trust for any purpose his administrator shall pay the same out as a sixth-class claim. B. S., Oh. 3, Sec. 10. The claim thus arising takes precedence of other debts and demands of a general nature which constitute claims of the seventh class.

On examining the report of the administrator which appears in the abstract it is quite evident that there were ample funds for the payment of all claims of ■ the first, second, third, fourth and fifth classes. It follows that even though the identification of the funds or the proceeds thereof may not be what the law would require, yet by virtue of this provision of the statute the money in question must be paid out in preference to the claims of ordinary creditors, and that no error was committed in this respect, since the rule of the statute has been substantially carried out.

Finally, it is objected the decree is erroneous, in providing that the money should be managed by the trustee, as provided in the will, because it thereby gives Charles H. Bennett the income of the money during his lifetime, when by the former decree in the case it was found that though he was entitled to all the money remaining in the hands of said Treat, the balance so due him was but $3,500, for which a decree was rendered, and that the money had been paid him.

It is suggested, therefore, that in making the further provision for him as was done in this decree the court erred; and it is argued that the income of the $10,000 should be used to reimburse the estate of Judge Treat the amount thus paid to said Bennett in excess of what should have been paid to him. It appears that the former decree was in fact rendered by consent, though the decree upon its face does not so show, and that C. W. Bennett did not- appeal from it.

We are inclined to hold that the entire decree was reversed, although C. W. Bennett did not appeal. Hence, it would seem that the matters arising upon the cross-bill should have been examined. It will be noticed that the allegations of the cross-bill as well as of Bennett’s answer are consistent with the theory of the original bill.

The cross-bill merely seeks an accounting as to the balance due C. W. Bennett as owner of one half of the money originally placed in the hands of Judge Treat and as residuary legatee of his mother. The first decree, however, found that he took the whole as survivor, and that there was due him on that account $3,500.

This amount was at once paid him, and when the decree was reversed it may be conceded that he should account for it to the administrator.

Now the question is, in what way may the administrator have relief. Probably he could recover the amount in an action at law, but he might also have relief in this proceeding, the parties all being before the court.

In order to have such relief it would be necessary that the court should be properly called upon at the instance of the administrator.

It seems that the issue made up on the cross-bill of O. W. Bennett was not presented to the court on the last hearing, and there appears to have been no examination of the question as to the amount due him from the estate. This branch of the case was in effect ignored or passed over. The record shows that the cause was submitted upon the issues made on the original bill and the answers and the replications thereto. It is not indispensable that the issue made upon the cross-bill should be heard along with that made upon the original bill. Myers v. Manny, 63 Ill. 211.

The amended answer of Bradford sets up the former decree, that he paid said sum of $3,500 to O. W. Bennett, that said. Bennett did not appeal therefrom, and that the same is in full force and unreversed as to him.

It would appear, therefore, that the administrator was disposed to regard the former decree as a finality, so far as O. W„ Bennett was concerned, and that no effort was made to interpose it as a bar to the relief sought by the complaints.

Assuming that that decree was reversed and that the money paid thereunder should be accounted for by O. W„ Bennett, and that he should be required to refund it, or that his income on the $10,000 should be used to reimburse the estate for the excess received by him, the question is whether, upon the pleadings and evidence, the present decree is erroneous because containing no such provision. In the first place, it is not apparent what, if any, excess Bennett really has received, assuming that he took nothing as survivor; and in the second place, we are inclined to think that, under the pleadings as made up, the administrator should not now be heard to make the point.

By bis amended answer he affirmed the binding force of the former decree as to C. W. Bennett.

That decree, according to the pleadings as then made up, could not affect the rights of the complainants, though upon its face and according to its findings, it did deny any interest to them in the estate. ¡Nor did the administrator ask the court for any relief as against C. W. Bennett in respect to that money. Such relief might have been sought by cross-bill; but none was filed, nor did the answer set up any desire for such relief. Indeed, the whole issue submitted to the court was upon the main question presented by the original bill and the answers, as to the rights of complainants.

In view of the situation thus presented, we are of opinion that the decree should not be reversed for this cause.

¡No other objections are urged, and failing to discover any error of substance in the decree, we must affirm it.