Altschuler v. Altschuler

• Citation: 399 Ill. 559,78 N.E.2d 225
• Decision Date: 18 March 1948
• Docket Number: No. 30453.,30453.
• Parties: ALTSCHULER et al. v. ALTSCHULER.
• Court: Supreme Court of Illinois

399 Ill. 559

78 N.E.2d 225

ALTSCHULER et al.

v.ALTSCHULER.

No. 30453.

Supreme Court of Illinois.

March 18, 1948.

Appeal from Third Division Appellate Court, First District, on Appeal from Superior Court, Cook County; Robert E. Crowe, Judge.

Suit by Evelyn Altschuler, executrix of the last will of Samuel Altschuler, deceased, and also in her individual capacity, as devisee under the deceased's will, against Irwin I. Altschuler for partition of realty and for an accounting of partnership affairs, wherein the defendant filed a counterclaim. From an adverse decree, the defendant appealed to the Appellate Court and moved for an order granting a supersedeas, and the plaintiff moved to dismiss the appeal. From a judgment of the Appellate Court dismissing the appeal on ground that the decree sought to be reviewed was not final and that therefore the appeal was premature, the defendant appeals.

Reversed and remanded to Appellate Court, with directions.

Moses, Bachrach & Kennedy, of Chicago (Walter Bachrach, Stanley, J. Morris and Morris Solomon, all of Chicago, of counsel), for appellant.

Franklin J. Stransky and Bernard Yedor, both of Chicago, for appellees.

THOMPSON, Justice.

The business known as the Altschuler Iron & Steel Company was owned and operated by Isaac Altschuler during his lifetime. The real estate on which the plant and business of the company were located was owned by Isaac and his wife, Ida, in joint tenancy. Isaac died intestate July 10, 1930, leaving surviving, Ida, his widow, and their children, two daughters, Sarah and Sadie, and two sons, Irwin I., the defendant, and Samuel, the husband of plaintiff, as his only heirs-at-law. Irwin was then employed by his father in the business. He was appointed and acted as administrator of his father's estate, and on October 7, 1931, filed his final report and was discharged. With the report he filed the receipt of the widow, acknowledging that she had received of him as administrator of the estate of Isaac Altschuler, deceased, an undivided one-third interest in and to all the assets of the estate, consisting of the business of the deceased known as the Altschuler Iron & Steel Company. Similar receipts for an undivided one-sixth interest, signed by Sarah, Sadie, Samuel and himself were also filed with the report.

Samuel had no connection with the business at the time of his father's death, but shortly thereafter became associated in its operation, and the two brothers continued together in the business until the death of Samuel on February 10, 1945. At that time the brothers were the sole owners of both the business and the real estate on which it was located, having previously acquired the interests of the other members of the family therein. Plaintiff and defendant are in dispute, however, as to what proportion of such interests was acquired and owned by each of the brothers. Plaintiff claims they participated equally in the purchase of these interests and after their acquisition were equal partners in the business, each owning a one-half interest therein and entitled to share equally in the profits therefrom. Defendant claims that the interests of the mother and sisters were so purchased that thereby he became the owner of a two-thirds and Samuel the owner of a one-third interest in the business, and each entitled in that proportion to share in the profits.

This suit was filed in the superior court of Cook County by plaintiff as executrix of the last will and testament of her deceased husband, Samuel Altschuler, and also in her individual capacity as devisee under his will, against the defendant for partition of the real estate and for an accounting of the partnership affairs. The complaint as amended alleged the above facts as to the death and heirship of Isaac Altschuler, his ownership of the business at the time of his death, the administration of his estate by defendant, the subsequent death of his widow, Ida, her ownership at the time of her death of the real estate upon which the business was located and operated, and the acquisition by Samuel and the defendant of the interests of their mother and sisters in said real estate and business. The complaint averred that by the acquisition of such interests the defendant and Samuel became the sole owners of the real estate and business, each owning an undivided one-half thereof and entitled to share equally in the income and profits of the same; that in 1938 Government bonds and other securities belonging to the business were sold and the proceeds, together with cash belonging to the business, were divided equally between defendand and Samuel, each receiving $203,513.25; that said amount received by Samuel was deposited in a joint bank account in the names of Samuel and the defendant, so that the defendant could withdraw therefrom to make investments and purchase securities for the benefit of Samuel; that stocks, bonds and other securities were purchased by checks drawn on the account and were delivered to the defendant; that defendant, as administrator of his father's estate, inventoried the assets of the business at less than their actual value and did not account for assets belonging to the business at the time of the father's death; that defendant, after the acquisition of the ownership of the business by himself and Samuel, withdrew large sums of money from the business for which he never accounted to Samuel, and that he owns certain described stocks purchased by him with moneys belonging to the business; that Samuel never withdrew or received his full one-half share of the profits of the business; that defendant has never at any time since the death of Isaac accounted to Samuel for the assets and profits of the business or for the joint bank account; and that he has during all of such time sustained a continuous fiduciary relationship toward Samuel.

Defendant filed an amended answer and counterclaim. He denied that he and Samuel owned the business in equal shares, but alleged that he owned two thirds and Samuel one third thereof. He admitted that on May 4, 1938, there was deposited in the First National Bank of Chicago the sum of $203,413.25 in a joint bank account in the name of himself and Samuel, but alleged that the same was the property of the partnership and that a detailed accounting of all stocks and securities purchased with moneys drawn from the account had been furnished to Samuel during his lifetime. He denied that he had ever taken more than he was entitled to withdraw from the business or that Samuel had failed to draw his full share to which he was entitled from the business. He alleged that the real estate was partnership assets and not subject to partition. A contract between Samuel and himself dated December 31, 1936, was set out in haec verba. The contract stated that the business was a partnership, owned by Samuel and the defendant in the proportions of one third and two thirds, respectively, and contained a provision giving either of the partners, in case the other partner should die or desire to withdraw from the partnership, an option to purchase the interest of the deceased or withdrawing partner, the amount to be paid for such interest to be arrived at by an account taken of all the partnership property after provision made for payment of the partnership liabilities. Defendant alleged that as surviving partner he had an account taken of all the partnership property at the date of the death of Samuel on February 10, 1945; that in accordance with such account the proportionate share of one-third belonging to the estate of Samuel is $90,577.33, comprised of $81,602.56, standing to his credit as his share of the joint bank account and $8974.77, standing to his credit as his share of the capital account of the company; that on November 3, 1945, statement of said accounts, both as to the capital account of the company and as to said bank account, were delivered to plaintiff as executrix of the estate of Samuel, together with a letter from defendant reciting that he was thereby exercising his option to purchase the interest of the decedent in the partnership property in accordance with the partnership agreement, and at the same time defendant tendered to her $90,577.33, which tender was refused. The prayer of the counterclaim was that plaintiff be ordered to execute and deliver to defendant an assignment of her interest and the interest of her deceased husband in the partnership property. By an amendment to his answer, defendant set up the additional defense of laches.

Plaintiff answered the counterclaim and also filed a reply to defendant's answer. The chancellor then referred the cause to a master in chancery to take and report testimony, together with conclusions of law and fact, upon the right of the plaintiff to an accounting of:

(a) All matters alleged in plaintiff's complaint to have occurred between July 10, 1930, and October 7, 1931;

(b) All matters alleged in said complaint to have occurred between October 7, 1931, and December 31, 1936;

(c) All matters alleged in said complaint to have occurred between December 31, 1936, and February 10, 1945;

(d) Certain funds deposited in and withdrawn from the First National Bank of Chicago.

The master conducted hearings, took testimony and made a report recommending that a decree for accounting be entered in accordance with the prayer of the complaint as amended and with the findings, conclusions and recommendations of the report. The master found and reported that a continuous fiduciary relationship...