Heinrich v. Harrigan

• Decision Date: 04 June 1919
• Docket Number: No. 12104.,12104.
• Citation: 288 Ill. 170,123 N.E. 309
• Parties: HEINRICH, County Clerk, v. HARRIGAN et al.
• Court: Illinois Supreme Court

288 Ill. 170

123 N.E. 309

HEINRICH, County Clerk,

v.HARRIGAN et al.

No. 12104.

Supreme Court of Illinois.

April 15, 1919.

Rehearing Denied June 4, 1919.

Appeal from Circuit Court, Peoria County; John M. Niehaus, Judge.

Bill of interpleader by Oscar Heinrich, County Clerk, against Christopher Harrigan and the County of Peoria, at which Christopher Harrigan, administrator, was later made a party defendant, and in which Louis Gauss, County Treasurer and ex-officio Collector of Peoria County, was denied the right to become a party, tried and considered together in circuit court, with appeal by Christopher Harrigan, as executor, from county court's decree that certain property be inventoried as property of the estate; such appeal by stipulation of the parties being treated as a petition for citation under Administration Act, §§ 81 and 82. From decree rendered Louis Gauss, County Treasurer and ex officio Collector of Peoria County, and the County of Peoria, appeal, and Christopher Harrigan, individually and as sole executor, cross-appeals. Reversed in part and remanded, with directions.C. E. McNemar, State's Atty., of Peoria (Dan R. Sheen, of Peoria, of counsel), for appellants.

Mansfield & Cowan, of Peoria, for appellees.

DUNCAN, C. J.

Michael Harrigan died in the county of Peoria on October 8, 1911, having in his possession certain tax certificates of purchase amounting to about $5,000. He left a will, by which he bequeathed and devised all his property, real, personal, and mixed, equally to his brother Christopher Harrigan, and his two sisters Maggie and Kate Harrigan, after the payment of his debts. The executors, Christopher and Kate Harrigan, at first refused or neglected to probate the will. An administrator was appointed by the probate court of Peoria county, and, being advised that there was a large amount of notes and choses in action belonging to the estate of the testator, made strict search for the same in the home where the testator had lived and died, but for some time could learn nothing about such assets from the executors or otherwise. He finally found a small safe owned by the deceased in a small room or closet adjoining the kitchen. The safe was under a stairway, and was skillfully concealed by hanging clothes and other such articles on the wall over it. He finally succeeded in getting the safe open, and then for the first time the executors named disclosed that there was a will, and two of them, Christopher and Kate Harrigan, filed the will for probate, and were qualified as executors, the other, Maggie Harrigan, declining to become an executrix. The testator up to his death lived with his sister Maggie, where the safe was found, and Christopher and Kate lived in Chicago. About two weeks after the testator's death Kate delivered the tax certificates to Christopher, claiming that she had been told by the deceased to deliver them to Christopher because they were his property. At the time of his death Michael was in arrears to the county of Peoria for back taxes for ten years previous to his death, amounting to the sum of $5,226.13. The county clerk of said county had in his possession $1,523.46 in redemption money collected by him since the death of the testator from landowners named in some of the tax certificates. The county of Peoria served notice on the county clerk to hold said redemption moneys and to apply the same as a payment upon the indebtedness of Michael for taxes to the county. Thereafter Christopher demanded of the county clerk that he pay to him said redemption moneys in exchange for the proper tax certificates then in his possession and indorsed in blank ‘M. Harrigan,’ but the clerk declined to do so. Christopher then brought suit in assumpsit against the clerk to recover the redemption demption money. The county clerk, Oscar Heinrich, then filed a bill of interpleader in the circuit court of said county, making Christopher and the county of Peoria defendants, praying that they be required to interplead and settle their right to said funds, that complainant might bring the funds into court, and that Christopher be enjoined from further prosecuting his suit against him. The court so ordered, and the complainant turned over the redemption money to the circuit clerk, and the court discharged the complainant from any further liability, and referred the cause to the master in chancery, with directions to take and report the evidence, together with his conclusions of law and fact.

The first inventory filed by the executors included as property of the deceased at the time of his death cash on hand, $5; tender money in the hands of the circuit clerk in an unsettled suit, $356.40. This inventory was approved in open court on June 17, 1912. Another inventory was thereafter filed in which were scheduled items of wearing apparel of the deceased of trifling value and was not approved. Another inventory was then filed on the order of the court which included, in addition to the items inventoried in the first two inventories, $750 in the hands of the county clerk and in litigation. The executors further reported in the inventory that in the safe owned by Christopher Harrigan and in the residence where Michael Harrigan died, which residence was owned by Maggie Harrigan, were certain notes and mortgages (describing them) totaling $9,025, all of which were prior to the death of Michael Harrigan, and ‘are now, the property of Kate Harrigan’; that there was another note signed by H. R. Wolland for $3,000, and also certain tax certificates amounting to about $3,000, which note and certificates ‘were owned by Christopher Harrigan and are now the property of Christopher Harrigan;’ that all the notes and mortgages and tax certificates aforesaid were listed, not as the property of the deceased, but merely for the purpose of complying with the order of the court. Objections were filed to this inventory by the county, the state of Illinois, and William and Winifred Harrigan, a brother and sister of the testator not named in his will. A citation was issued by the county court commanding the executors to show cause by July 8, 1912, why all the property described in said last inventory should not be inventoried as the property of the estate. They answered the citation by claiming that said property was their individual property, as aforesaid, and was not the property of the deceased. On the hearing the court found and decreed that all of said property, including the tax certificates, was the property of Michael Harrigan at the time of his death, and not the property of Christopher and Kate or either of them, and ordered a complete inventory to be filed, and that they include said property therein, by October 5, 1912. The executors in their representative capacity perfected their appeal to the circuit court, but did not appeal as individuals. In the circuit court it was stipulated that the two causes should be tried and considered together, and that the appeal case be treated as a petition for citation, under sections 81 and 82 of the Administration Act (Hurd's Rev. St. 1917, c. 3, §§ 80, 81), in proper form, and that both causes be referred to the master in chancery, and they were so referred in like manner as were the issues in the interpleader case. The master found and reported that the certificates of purchase were not the property of Christopher, but were the property of the estate; that the redemption money aforesaid belonged to Michael Harrigan's estate, and not to Christopher; that the county had no lien on the redemption money, and was not entitled to it under the interpleader; and that the appeal of the executors, as executors, from the probate court should be dismissed, as they had no appealable interest, etc.

The county of Peoria filed objections and exceptions, and on the hearing before the court Christopher Harrigan, as sole executor of the estate, Kate Harrigan being then dead, was made a party defendant to the bill of interpleader. He then filed a joint and separate answer, individually and as executor, in which he claimed the money and the certificates as his individual property and disclaimed having any interest therein as executor. The cause was then referred, the same evidence offered, and practically the same report made by the master in chancery, and the objections and exceptions were again filed by the county of Peoria. The court sustained the master's report and his findings. He further found that it was the duty of the executor to have had appointed in the probate court, and also in the circuit court, an administrator pro tem. to defend both of these suits, and that the estate of Michael Harrigan was the owner of the certificates of purchase, and that the redemption money belonged to the estate, that no reason appeared for further action by the court, and that the interpleader case should be continued until the legal owner should appear and ask for a proper order for the money in the hands of the circuit clerk, and disallowed the claims of Christopher Harrigan and the county of Peoria to the certificates and the funds, and dismissed from the suit the county of Peoria without prejudice to its rights in its claim probated in the probate court and pending on appeal in the probate court, and gave judgment for costs against the county of Peoria and Christopher Harrigan, each to pay one-half. It further appears from the record that before final decree Louis Gauss, county treasurer and ex officio collector of Peoria county, presented an intervening petition in the interpleader suit and asked to be made a party thereto, and sought thereby to claim the funds in dispute as tax collector for said back taxes. The court denied him leave to intervene, and he and the county of Peoria both perfected their appeals to this court. Christopher Harrigan individually and as sole executor has assigned cross-errors.

[2]It is insisted on the part of the appellee assigning cross-errors...