Bevans v. Murray

• Decision Date: 06 December 1911
• Parties: BEVANS v. MURRAY et al.
• Court: Illinois Supreme Court

251 Ill. 603

96 N.E. 546

BEVANS

v.MURRAY et al.

Supreme Court of Illinois.

Oct. 25, 1911.

Rehearing Denied Dec. 6, 1911.

Appeal from Superior Court, Cook County; Farlin Q. Ball, Judge.

Bill by Jane A. Bevans against George W. Murray and others. Decree for complainant, and defendants Ira B. Meyers and others appeal. Reversed and remanded.Smith & Wallance and Elmer & Cohen, for appellants.

Clifford N. White and Ashcraft & Ashcraft (E. M. Ashcraft, of counsel), for appellee.

PER CURIAM.

Jane A. Bevans filed a bill in equity in the superior court of Cook county to set aside certain deeds made by Alfred H. Champlin, under a power given to him by the will of his wife, Mary M. Champlin, to Ira B. Meyers. The defendants below, who were all of the persons having or claiming any interest in the subject-matter of the litigation, answered the bill, and, upon a hearing before the master to whom the cause was referred, a finding was made in favor of the complainant below, which was approved by the court and a decree rendered in substantial accordance with the prayer of the bill. Part of the defendants below have prosecuted an appeal to this court, and seek a reversal for errors which will be hereinafter referred to.

Alfred H. Champlin was a physician, and practiced his profession for many years on the south side of the city of Chicago. Mary M. Champlin, his wife, was for more than 15 years prior to her death an invalid, and required a great deal of personal attention. They had no children of their own, but they had an adopted daughter, who married Ira B. Meyers. Mary M. Champlin owned in her own right, at the time of her death, several tracts or parcels of real estate, which, for convenience, may be divided into tracts, as follows: (1) A tract consisting of the homestead, located at the corner of Princeton avenue and Sixty-First street, in Chicago, which was improved by an eight-room frame house located on a lot 100x125 feet; (2) an undivided half interest in part of section 35 and part of section 2, along the Calumet river, which is mentioned in the record as ‘The Farm Property,’ the other half interest being owned by the appellee, Jane A. Bevans, the tract containing 168 acres; (3) about 400 feet fronting on State street, near 127th street, in the city of Chicago, known as ‘The Wildwood Property,’ or ‘The Old Homestead’; (4) an undivided half of a 53-acre tract in Indiana, the other half being owned by Jane A. Bevans; (5) a third interest in an adjoining strip, spoken of as ‘The Neck,’ the other owners being George W. Murray and Jane A. Bevans; (6) an undivided interest with Murray and Mrs. Bevans and a number of others in a seven-acre tract in Indiana. All of this property was clear of liens at the time of the death of Mary M. Champlin, but she left unpaid debts amounting to $2,600, which included taxes due on the real estate and a debt to a Mr. Whisler of $1,600, for money borrowed with which to pay taxes. She left no personal property.

George W. Murray was a brother and Jane A. Bevans was a sister to Mrs. Mary M. Champlin, and were her nearest blood relatives. Mary M. Champlin died May 2, 1902, leaving a last will, made in 1888, which is in the following words:

‘I, Mary M. Champlin, of Englewood, Illinois, do make, publish and declare this my last will and testament and hereby revoke all former wills by me at any time made.

‘First. I give, devise and bequeath to my beloved husband, Alfred H. Champlin, if he shall survive me, all my remaining estate, both real and personal, in whatever it may consist or wherever situated, at the time of my decease, to be by him used and disposed of during his natural life precisely the same as I might do were I living, hereby giving to my said husband full power to sell, exchange, mortgage, invest and reinvest the same in the same manner as I might do if living, and to use so much of the income and principal thereof as he may desire.

‘Second.-But if my said husband shall not survive me, or any of my said estate, either in its original form or otherwise, shall remain undisposed of by my said husband at the time of his decease, I give, devise and bequeath to my daughter, Cora Champlin, our homestead in Englewood, Illinois, as described in deed from Ira J. Nichols to me dated March 1, 1881, and recorded in the recorder's office of Cook county, Illinois, in book 993 of records, on page 447, and all my household goods, except the portrait of my said husband and myself, which I direct after the death of my said husband shall be given to the Cook County Normal School. All the residue and remainder of my estate to be equally divided among the following named persons, to-wit: Cora Champlin, my daughter, Jane A. Bevans, my sister, and George W. Murray, my brother, the issue of each of the three persons last named to receive the share of any of them who may not survive my said husband.

‘Third.-Should my said daughter, Cora Champlin, not survive my husband and die without issue surviving her, I direct that the above devises and bequests to her shall go to my said sister, Jane A. Bevans.

‘Fourth.-I hereby appoint my said husband as the executor of this my last will and request that he be allowed to execute the same without bonds, and in the event of my husband not surviving me, I appoint my said brother, George W. Murray, executor hereof, with a like request that he be not required to give bonds.

‘Witness my hand and seal this ninth day of October, A. D. 1888. Mary M. Champlin. [Seal.]’

This will was admitted to probate in Cook county on June 10, 1902, and Dr. Champlin qualified as executor, settled the estate, and made his final report, and was discharged on September 9, 1904. Cora Meyers, the adopted daughter, died January 7, 1904, leaving no lineal descendants. On January 14, 1904, seven days after the death of Cora Meyers, Dr. Champlin, assuming to act under and by virtue of the power vested in him by the will of his wife, made a deed of conveyance, which was acknowledged on that date, and afterwards, on November 7, 1904, duly recorded in Cook county, for a recited consideration of $10,000, purporting to convey to appellant Ira B. Meyers an undivided one-third interest in all of the lands owned by Mary M. Champlin at the time of her death, except the interest she had in a seven-acre tract in the state of Indiana, which is above described as tract 6. Appellee contends, and the master and court below found, that there was no present consideration paid by Meyers for this deed; while, on the other hand, appellants claim that there was a valuable consideration in the way of services to be rendered to Dr. Champlin in connection with the property, money advanced to him, and debts assumed by Meyers. The contentions of the respective parties as to this question constitute one of the controverted questions of fact between them.

On April 23, 1904, Dr. Champlin made a second deed to Ira B. Meyers, purporting to convey to the said Meyers the remaining two-thirds interest in the property owned by Mrs. Champlin at the time of her death. This last deed included all of the property of which the testatrix died seised. There is some contention respecting the delivery of this deed, but we do not deem it necessary to recite the evidence bearing upon that question, since, under the view that we have of other questions involved, it is immaterial whether the deed was delivered or not. At the time this deed was executed, Dr. Champlin executed a declaration of trust, which, omitting the date and signature, is as follows:

‘To Ira B. Meyers:

‘I have this day executed a deed conveying to you seven (7) parcels of real estate, four being in Cook county, Illinois, and three in Lake county, Indiana. The property at the corner of Princeton avenue and West Sixty-First street, being the premises first described in said deed, is yours in your own right, absolutely and forever. All the remaining portions I desire to have you hold in trust for the following uses and purposes:

‘First-To take exclusive charge and control of the same, managing it in whatever manner you deem best, and to collect all of the rents, issues and profits therefrom, and use so much of such money so collected as in your judgment is best for the care, preservation, maintenance or improvement or repair of the same, and the payment of all taxes, assessments or other charges or expenses upon said premises, and to re-pay to yourself any money which you may have advanced at any time for any of the above purposes, hereby giving and granting to you full and complete power and authority to make such improvements upon said premises as in your judgment are advisable, and to convey, mortgage and encumber said premises, or any part thereof, for the purpose of borrowing or securing money for any of the above purposes.

‘Second.-To sell said premises, or any portion thereof, at any time within ten years from this date, at such terms and for such prices as you deem best, hereby giving and granting unto you full and complete power and authority to convey the said premises, or any part thereof, and to execute, acknowledge and deliver good and sufficient deed or deeds of the same, with or without covenants of warranty.

‘Third.-During the period of ten years from the date of this instrument either to invest or re-invest the net income and the net proceeds of any such sale or sales of said premises, or, in your discretion, to distribute the said funds, or any portion thereof, in the following manner: One-half of all moneys so distributed to be paid to Alfred H. Champlin, Percy Champlin and Bessie Champlin in equal shares, or, in your discretion, to some other person or institution for them or for their benefit or education, as you may deem best; the remaining half of such moneys so distributed to be paid to Robert H. Murray and Louise Murray, children of George W. Murray, and to Laura H. Bevans, Vivian Bevans, Homer Bevans, Jr., and Irene Bevans, children of ...