Bolton v. Bolton

• Decision Date: 21 February 1923
• Docket Number: No. 14732.,14732.
• Citation: 306 Ill. 473,138 N.E. 158
• Parties: BOLTON et al. v. BOLTON et al.
• Court: Illinois Supreme Court

306 Ill. 473

138 N.E. 158

BOLTON et al.

v.BOLTON et al.

No. 14732.

Supreme Court of Illinois.

Feb. 21, 1923.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Hancock County; Harry M. Waggoner, Judge.

Objection by William C. Bolton and others in the county court to the final report of Mary J. Bolton and another, as administrators of the estate of Alexander Bolton, deceased, to require the administrators to charge themselves with the proceeds of the payment of a note claimed by Mary J. Bolton as her own property. A judgment of the circuit court on appeal from the county court, ordering the administrators to charge themselves with, and account for, the entire proceeds of the note, was reversed by the Appellate Court and the objecting heirs bring error.

Judgment of Appellate Court reversed, and that of circuit court affirmed.James D. Baird, Charles J. Scofield, J. Paul Califf, and Earl N. Bell, all of Carthage, for plaintiffs in error.

O'Harra, O'Harra & O'Harra, of Carthage, for defendants in error.

FARMER, J.

Plaintiffs in error, who are the heirs at law of Alexander Bolton, deceased, filed their objection in the county court of Hancock county to the final report of Mary J. Bolton and A. J. Schneider, administrators of the estate of Alexander Bolton, and who are defendants in error here. The objection was that the administrators had not charged themselves with the proceeds of a certain $12,000 note, the payment of the balance due thereon, in the amount of $11,598, having been made to the administrators since the death of Bolton. The county court held that Mary J. Bolton, the widow, who is one of the administrators, was entitled to one half the proceeds of the note and the estate to the other half. An appeal was prosecuted by the heirs at law to the circuit court of Hancock county, where on a hearing the court ordered the administrators to charge themselves with and account for the entire proceeds of the note as assets of the estate. An appeal was perfected from that court by the administrators and Mary J. Bolton individually, and by agreement taken to the Appellate Court for the Second District, where the judgment of the circuit court was reversed and the cause remanded, with directions to enter a final order that the widow, Mary J. Bolton, was entitled to one half the proceeds of the note and the other half was the property of the estate. The heirs at law filed a petitionfor a writ of certiorari, which was granted, and the cause is before this court for review.

Cross-errors have been assigned by defendants in error. The sole question, however, to be determined in the case is the ownership of the proceeds of the note involved, which Mary J. Bolton, the widow, claims as her individual property, while plaintiffs in error contend the proceeds belong to the estate of Alexander Bolton.

The note involved, with indorsements thereon, is as follows:

‘$12,000.

February 9, 1914.

‘On or before six yrs. after date, without grace, we promise to pay to the order of Alexander Bolton or wife, M. J. Bolton, twelve thousand and no/100 dollars, for value received, with interest from date at the rate of five per cent. per annum until paid. Principal and interest payable in U. S. gold coin at Nauvoo, Illinois, and in case suit is instituted to collect this note or any portion thereof, we promise to pay such additional sum as the court may adjudge reasonable as attorney's fees in said suit.

Christ Rasmussen.

‘Mrs. Boline Rasmussen.

‘Belle B. Balmer.

‘No. _____.

‘Due February 9, 1920.’

Indorsements on back:

‘Payments:

‘Date: August 11, 1914; amount $1,000.

‘Sept. 12, 1914, $1,500.

‘12-31-1914, paid interest in full to 2-9-15.’

Alexander Bolton lived for a great many years on a farm near Nauvoo, in Hancock county, Ill. He died there intestate on September 14, 1915. At his death he left surviving him his widow, Mary J., two sons, three daughters, four grandchildren who were the children of a deceased son, and two other grandchildren who were the children of another deceased son, as his only heirs at law. The deceased was married twice. His first wife was a sister of Charles A. Clark, of Chicago, and by this marriage all of the children of deceased were born. The second wife, who is now the widow of deceased, was a daughter of the Clark mentioned. The second marriage took place in Chicago during October, 1912, at which time Bolton was about 75 years of age and his second wife about 45 years old. No children were born of this marriage. In August, 1912, and prior to his marriage, Bolton bought approximately 67 acres of land located in Placer county, Cal., title to which was taken in himself, the deed therefor executed to him and properly recorded in that state. It is a part of the proceeds of the sale of this land that is in controversy. The land had been rented during 1913 by Bolton to Belle Balmer and her husband in his lifetime. Belle Balmer was a daughter of Bolton. In February, 1914, Bolton and his wife were in California, and were at the house of his daughter, Belle, near Loomis, Cal. While there the sale of the 67 acres of land was made to Christ and Boline Rasmussen. The deed was prepared by an attorney named Tabor, at his office in Auburn, Cal., where it was executed by Bolton and his wife in the presence of the grantees named in the deed, also Belle Balmer and the attorney, who was also a notary public and took the acknowledgment. The deed and acknowledgment bear date of February 9, 1914. The deal was not closed at that time, but another meeting of the parties, without the attorney, was had at Mrs. Balmer's house, either on that evening or the evening of the following day, at which time the sale was completed and deed delivered to the purchasers. The purchase price of the land was $15,000, of which $3,000 was paid in cash and the balance evidenced by the note given by Christ and Boline Rasmussen for $12,000. The note was also signed by Mrs. Balmer, though she neither bought nor received title to any of the land. The note was written by Mrs. Balmer, and after its execution she handed it to her father, who put it in a book and then in his pocket. Three substantial payments were later made on the note prior to the death of Bolton. These payments were in the form of drafts, and at least two of them were payable to Bolton or wife, and sent by Rasmussen to Bolton. The indorsements of these payments were made on the note by A. J. Schneider, cashier of the State Bank of Nauvoo, who is also one of the administrators, at the request of Bolton, and these payments passed to the credit of Bolton's bank account.

After the death of Bolton the note in question was found among other papers and notes belonging to him in his safety deposit box at the State Bank of Nauvoo by Schneider, who testified that ‘Mr. Bolton kept his papers in this box.’ The further sum of $11,598, being the total balance due on the note, was paid by the Rasmussens after the death of Bolton, and such payments as were made indorsed on the note by Schneider and deposited in the bank to the account of the administrators. The deposits and entries he testified were made ‘by me as administrator of the estate and as cashier of the State Bank of Nauvoo.’ It seems, however, that the proceeds of this particular note were kept in a special deposit in the bank, separate and apart from the other account of the administrators. The inventory of the estate referred to the note here in question, but specifically stated it was claimed by Mrs. Bolton individually, and that it was not a part of the assets of the estate. The final report of the administrators also made mention of the proceeds of the note and of the claim thereto by the widow. Her coadministrator, Schneider, made no claim on the balance collected on the note for the benefit of the estate, but merely stated the cash collected thereon was in the bank; that he did not know to whom it belonged, and it was being held by the bank until its ownership was determined. The personal assets of the estate, exclusive of the proceeds of the note here in question, amounted to approximately $23,646, and were seemingly satisfactorily distributed, and the widow's share received by her was about $9,200.

It is contended by defendants in error that the evidence shows an intention on the part of deceased that his wife should have some interest in the note; that he intended to give the California land to her; that her name was inserted in the note as one of the payees with the consent of deceased, the latter having been present when the note was prepared and read without making any objection thereto; that the sale of the land and making of the note were a contract for the benefit of a third person, namely, Mrs. Bolton; that the note was payable in the alternative to either the husband or wife, either of whom, during their lives, could receive payment, and that upon the husband's death the wife continued to have the same right, and was entitled to the whole proceeds of the note; that the face of the note shows the interest of the holder to be that of a joint payee, and he held it for himself and the other payee. Complaint is also made by defendants in error of the rejection or striking of certain testimony of the widow's stepmother, made about the time of the second marriageof deceased, as well as testimony of Schneider, the cashier, relative to the payment of money by Bolton to his wife. They also complain of the withdrawal, before trial, of a deposition of Belle Balmer taken in California.

It will be unnecessary for us to discuss each and every point raised in the briefs of counsel, thereby unnecessarily adding to the length of this opinion. We shall discuss only the matters that are vital in arriving at a decision of the question involved.

Plaintiffs in error produced evidence on the hearing showing the purchase of the California lands by deceased and title thereto in him prior to his marriage. It was also...