Bergman v. Rhodes

• Decision Date: 03 April 1929
• Docket Number: 18505.,Nos. 18481,s. 18481
• Parties: BERGMAN et al. v. RHODES.
• Court: Illinois Supreme Court

334 Ill. 137

165 N.E. 598

BERGMAN et al.

v.RHODES.

Nos. 18481, 18505.

Supreme Court of Illinois.

Feb. 20, 1929.

As Modified, on Denial of Rehearing, April 3, 1929.

Commissioners' Opinion.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Macoupin County; Frank W. Burton, Judge.

Suit by Mary A. Bergman and others against Sarah J. Rhodes. The trial court's decree was reversed and the cause remanded by the Appellate Court, and both parties bring certiorari.

Reversed and remanded, with directions.Vaughn & Nevins, of Carlinville, and Bishop & Claiborne, of St. Louis, Mo., for plaintiff in error.

Knotts & Knotts, of Springfield, and Rinaker & Rinaker, of Carlinville, for defendants in error.

PARTLOW, C.

Defendants in error, Mary A. Bergman, individually and as trustee under the will of Henry Brayford, deceased. Theresa M. Pratt, and Virginia E. Durston, filed their bill in the circuit court of Macoupin county against Sarah J. Rhodes, plaintiff in error, and her husband, Frank Rhodes. The bill alleged the death of Brayford on December 2, 1901, the probate of his will, by which he disposed of 652 acres of land in Polk township and 80 acres of land in Carlinville township, both in Macoupin county, 93 acres in Madison county, and a lot in Carlinville. He left surviving him Mary A. Brayford, his widow, who later died intestate, and four daughters, Sarah J. Rhodes, Mary A. Bergman, Theresa M. Pratt, and Virginia E. Durston, as his only heirs at law and devisees under his will. The will devised and bequeathed the entire estate in trust to Mary A. Brayford, Sarah J. Rhodes, and Mary A. Bergman, and prescribed their duties as trustees until the death of the widow. The bill was filed for the purpose of carrying into effect the following provision of the will: ‘I direct that at the death of my wife, Mary A. Brayford, or as soon thereafter as practicable, the surviving trustees, acting under this will, shall sell and convey by good and sufficient deeds, all the said remainder residue of my estate in such manner and on such terms as they may deem best, and shall divide the net proceeds of said sale equally among my said daughters. In the event of the death of any of my said daughters, before the distribution of said proceeds of said sale, leaving bodily descendants, then I direct that the share of such deceased daughter be divided equally among her said bodily descendants.’

Plaintiff in error appeared and by agreement joined with defendants in error in an ex parte bill, in which they alleged that all of the parties were of the opinion that a sale of the real estate as provided in the will would result in a sacrifice of their respective interests because the prices of all farm lands were low and the market for the same poor; that the land, if sold at that time, would not realize a price actually representing its value; that because of these unsatisfactory conditions the parties would sustain a loss if the real estate was sold at public auction; that all of the parties had decided to exercise their right of election, each taking her one-fourth share in land instead of money; and that they waived the right to a sale by the trustees. The bill prayed that a decree be entered confirming their election to take their shares in the land, that they be decreed to be the owners thereof as tenants in common, that the land be partitioned in kind, and that commissioners be appointed to make partition and assign to each the full equal one-fourth part of the land in severalty. There was also a prayer for general relief.

A decree was entered which found that each of the parties had agreed that the land should not be sold by the trustees,but in lieu thereof they had elected to take their respective shares in land instead of money; that the election was reasonable and was approved by the court; that a sale as provided in the will would result in a sacrifice of the property and great loss to each of the parties interested. Commissioners appointed to make partition in accordance with the prayer of the bill divided the land in kind among the four sisters and placed a valuation upon each tract. They found that the value of the land assigned to Sarah J. Rhodes was $1,431.25 in excess of an equal one-fourth share of the total value of all the land, and they recommended that she pay to Virginia E. Durston $743.75, to Mary A. Bergman $318.75, and to Theresa M. Pratt $368.75 in the nature of owelty, in order to equalize the distribution of the estate. The total value of the estate as fixed by the commissioners was $49,475. No objections were filed when this report was presented in court, and it was confirmed by a decree on June 26, 1925. On September 10, 1925, during the same term, a motion was made by defendants in error to set aside this report and decree. The motion was supported by affidavits relative to the fairness of the division, the correctness of the valuations, and the legality of the action of the commissioners in fixing owelty. Plaintiff in error filed counter affidavits. Upon a hearing on these affidavits the court vacated the decree confirming the partition and the report of the commissioners on the ground that the commissioners had not made an equal partition and that they acted without authority in fixing owelty, and other commissioners were appointed. The commissioners last appointed made a report that the premises were not susceptible of division and made an appraisal of the land. Objections were filed to the report, and upon a hearing the objections were overruled, the report was approved, and a decree of sale was entered. An appeal was prosecuted to the Appellate Court for the Third District, where the decree was reversed and the cause remanded, with directionsto sustain the objections to the report of the commissioners and to enter an order appointing new commissioners to make partition in conformity with the decree. Both sides filed petitions for certiorari in this court, which were granted.

It is the contention of plaintiff in error that the ex parte amended bill was filed by agreement; that all the proceedings after the amended bill were by consent of all the parties; that the decree of partition and the decree approving the first report of the commissioners were consent decrees; that the chancellor was in error in sustaining the objections to the first report of the commissioners, in setting aside the decree of partition entered thereon, in appointing new commissioners, in overruling the objections to the second report of commissioners, and in entering the decree of sale; that the Appellate Court was in error in remanding the case with directions to sustain the objections to the last report and to appoint new commissioners and make division in conformity with the decree for partition; that the Appellate Court should have reversed the decree with directions to sustain the objections to the last report of the commissioners, overrule the objections to the first report of the commissioners, and sustain the decree of partition as originally entered. The contention of defendants in error is that the Appellate Court did not err in any of the respects complained of by plaintiff in error, but that it did err in holding, in effect, that the practice in this case should be governed by the Partition Act (Smith-Hurd Rev. St. 1927, c. 106), in holding that the decree of partition rested upon a conclusive presumption established by the allegations of the amended bill that the premises are equitably divisible in kind among the owners, in holding that the commissioners were appointed to make partition in kind, only, in holding that the objections to the report of the second commissioners should be sustained and the report set aside, and in holding that the decree of sale was improperly entered and should be reversed.

[1][2][3]Where a testator devises land to be sold and the proceeds distributed, if the devisees are all sui juris they may be concurrent action elect to take the real estate, as such, in place of the proceeds, and the converted property is thereby restored in equity to its original state. Hoopeston Public Library v. Eaton, 283 Ill. 449, 119 N. E. 647;Pasquay v. Pasquay, 235 Ill. 48, 85 N. E. 316;Darst v. Swearingen, 224 Ill. 229, 79 N. E. 635,115 Am. St. Rep. 152. The character of the bequest cannot be changed from money to a division of land except with the concurrent action of all of the parties interested, since each has a separate right to insist upon the bequest as provided by the will. Bouslough v. Bouslough, 306 Ill. 24, 137 N. E. 517. We are of the opinion that the record bears out the contention of plaintiff in error that the filing of the amended bill, and the proceedings taken thereunder, were by agreement of the parties and their...