Breen v. Breen
| Decision Date | 24 January 1952 |
| Docket Number | No. 32027,32027 |
| Citation | 411 Ill. 206,103 N.E.2d 625 |
| Parties | BREEN et al. v. BREEN et al. |
| Court | Illinois Supreme Court |
David H. Kraft, Barney Padnos, and A. C. Knutson, all of Chicago, for appellants.
Walter E. Moss and Raymond H. Groble, Jr., both of Chicago, for appellees.
Three of the four beneficiaries under an inter vivos trust of real estate brought a suit in the superior court of Cook County against the remaining beneficiary, seeking partition of the premises. The trustee and the holder of a mortgage on the property were made parties defendant. The cause was referred to a master, who heard the evidence and recommended a decree for partition. Exceptions to his report were sustained by the court, and a decree was entered dismissing the complaint and taxing costs against the plaintiffs. The latter appeal to this court, contending that the superior court erred in holding their interest to be personal property not subject to partition, and in taxing costs against them.
The corpus of the trust consists of an apartment building, situated in Oak Park, Illinois, formerely owned by the parents of the principal parties herein. On February 1, 1927, they conveyed the property in trust pursuant to an agreement whereby the trustee was to manage it under the direction of the beneficiaries and divide the earnings, avails and proceeds among them, one fourth to each. It provides, in so far as is relevant herein, 'that the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said property and to manage and control said property as hereinafter provided, and the right to receive the proceeds from rentals and from mortgages, sales or other disposition of said premises, and that such right in the avails of said property shall be deemed to be personal property; * * * that no beneficiary now has, and that no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds as aforesaid.' The agreement states, also, that the trustee shall convey or otherwise deal with the real estate only when directed by the beneficiaries; that the trustee shall not be obligated to act on any directions to convey unless at a price of $165,000 or more; and that the beneficiaries shall not sell, assign or transfer their interests during the existence of the trust except upon unanimous consent and in no event for a sum less than $165,000. It further provides as follows: 'If any property remains in this trust twenty years from this date it shall be sold at public sale by the trustee on reasonable notice, and the proceeds of the sale shall be divided among those who are entitled thereto under this trust agreement.'
The real estate was not sold, and the present complaint was filed November 28, 1947, almost ten months after the twenty-year period had expired. In 1943 the defendant beneficiary herein had brought a suit for an accounting concerning the real estate, against the present plaintiffs and the trustee. It had not been prosecuted to a hearing, however, at the time the present suit was begun, and it was thereafter consolidated with the latter cause. The decree herein dismissed for want of equity the complaint in the accounting suit, and no appeal is sought from this portion of the decree. The reason stated by the trustee for his failure to sell the property in accordance with the provisions of the trust is the pendency of the accounting suit, which he alleges rendered him unable to give a clear title or obtain a title guaranty policy, thus making it useless to attempt a sale. In their brief defendants state that as the accounting suit has been disposed of, the trustee is now ready and willing to proceed in accordance with the duties prescribed by the trust agreement.
Defendants have moved to dismiss this appeal, contending no freehold is involved and this court, therefore, lacks jurisdiction. The position cannot be sustained. The law is well settled that a freehold is involved where title is so put in issue by the pleadings that the decision of the case necessarily involves a decision with respect to the ownership of the real estate. Ashton v. Macqueen, 361 Ill. 132, 197 N.E. 561. The plaintiffs alleged in their complaint that the term of the trust has expired; that the undivided right, title and interest in and to the real estate, both legal and equitable, is now vested in the four beneficiaries; and that they are entitled to a partition. The question whether they were the owners of an undivided interest in the premises and entitled to partition was the principal issue presented to the court and decided by it. That the decision was adverse to plaintiff's contentions can have no bearing upon the matter. The test concerns the nature of the issue, not the truth or merit of the allegations. It is clear that we have jurisdiction in the review of partition cases involving real estate, and the appeal in the present case was properly prosecuted to this court.
To reverse the decree plaintiffs contend that the term of the trust has expired; that the trustee's powers of sale and administration thereupon ceased; that the interest of the beneficiaries, though defined as personalty under the trust instrument, was thereafter an equitable interest in land; and that they were then entitled to partition of the premises.
In his decree the chancellor found that under the terms of the trust there was an equitable conversion of the real estate into personal property; that no reconversion was shown; and that title was still vested in the trustee subject to an active trust. The right to partition in the plaintiffs was therefore denied and the complaint was dismissed and costs taxed against the plaintiffs. In doing so we think the chancellor was correct. A sale must now take place in any event. In practical effect, as applied to this particular property, it makes little difference whether the sale is one by the trustee or a partition, except as to who shall control the sale and exact the tolls. The case does, however, present an important and interesting question of the law of trusts and may have far-reaching effects in the application of such rules to trusts in similar...
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