Capek v. Kropik

• Decision Date: 15 June 1889
• Citation: 21 N.E. 836,129 Ill. 509
• Parties: CAPEK v. KROPIK et al.
• Court: Illinois Supreme Court

129 Ill. 509

21 N.E. 836

CAPEK

v.KROPIK et al.

Supreme Court of Illinois.

June 15, 1889.

Appeal from superior court of Cook county; GWYNN GARNETT, Judge.

Bill filed by Andrew Capek against his four step-children, the children of his deceased wife, Anna Capek, for partition of the lands in question herein, and for contribution from defendants on account of a trustdeed and taxes paid by complainant. He also sought to be allowed the value of certain improvements made by him on the premises. Three of the step-children, John, Thomas, and James Mladek, are minors, and answered by guardian ad litem. The other step-child, Annie Kropik, who is of full age, claimed by her answer that complainant was entitled to homestead and dower estates only, and should, subject thereto, be declared a trustee of the premises for his step-children, and then filed a cross-bill praying relief and partition. On hearing, the court dismissed the cross-bill so far as it sought to establish a resulting trust in favor of the step-children, held that they and complainant were tenants in common, and decreed partition subject to a homestead estate of complainant and the minor defendants. The court also found that complainant was entitled to the value of the improvements made by him, but refused to grant contribution for the amount expended in payment of the trust-deed and taxes, on the ground that such sum must be deemed to have been a gift or advancement by him to his step-children, towards whom he stood in loco parentis. This refusal of contribution, the allowance to the minor defendants of a homestead in the whole lot instead of in the undivided half, of which their mother died seised, and the disposition made by the court of the rents of the premises, constitute the grounds of complainant's appeal.Theo. H. Schintz, for appellant.

John Lyle King and Josef F. Kohout, for appellees.

SHOPE, C. J.

In respect of the contention of appellees that the court erred in refusing them the full measure of relief sought by the cross-bill, and to which the major part of the argument of counsel is directed, it is sufficient to say they have assigned no cross-error upon this record. It is conceded by appellant, and found by the court, that at the death of Anna Capek, his wife, one-half of this lot descended in fee to her four children named, subject to dower and homestead of appellant therein. A question of some difficuity arises from the fact that, at the time of the death of Anna Capek, the entire lot, and the interest of each tenant in common, was incumbered by a deed of trust executed jointly by appellant and his wife to secure a loan of $1,000 procured from the National Loan Association. It is sufficiently accurate to say that the weight of evidence shows that the entire sum realized upon this loan was expended, either in the purchase of the lot, or in the improvements placed thereon, and inured to the benefit of the common estate. The loan was made October 10, 1882, and Mrs. Capek died the 30th of the same month, leaving complainant, her husband, and four children her surviving. It also appears that prior to and at the death of Mrs. Capek said premises, with the dwelling, etc., thereon, were occupied as a homestead, and that appellant and the children of Mrs. Capek after her death continued for some years to occupy the same as a homestead. The thousand-dollar loan was to be paid, and was paid, in monthly installments, running through a series of years. During that time the children of Mrs. Capek, and step-children of appellant, after the death of their mother, lived with and as part of the family of appellant. While it is not absolutely certain, we think it appears that the money used in making such payments was earned by such children, and was taken by appellant, and applied in meeting the installments as they became due from time to time, until the loan mentioned was discharged. It is satisfactorily shown that the money earned by the children, and appropriated by appellant, at least far exceeded one-half of said loan and the taxes upon the property. Appellant was without means, worked only a portion of the time as a day-laborer, and earned an amount wholly insufficient, as it would seem, to meet the expenses of the family and make these payments. Indeed, it is not shown that he had any resources within himself from which any considerable portion of the loan could have been paid.

If it be conceded that appellant did not stand in loco parentis to these children, their earnings, at least over and above the amount necessarily expended for their maintenance, if expended by appellant in liquidation of the loan, would inure to their benefit. He would be their trustee in the application of said fund. If, however, he stood in loco parentis to his step-children, he would be liable for their maintenance, and entitled to their earnings while that relation continued. The husband is not bound to accept into his family the children of his wife by a former husband, but if he does so voluntarily, so long as the relation is permitted to continue, he assumes the duties and obligations of a parent. So it is said, ‘that a person in loco parentis means a person taking upon himself the duty of a father to make provision for the child.’ Powys v. Mansfield, 3 Mylne & C. 367. There is much discussion in the books as to whether the duty thus self-imposed extends beyond the mere obligation of maintenance; some of the authorities holding that the presumption of advancement for the benefit of the child will not arise from the fact alone that the donor was in loco parentis to the supposed donee. See Tucker v. Burrow, 2 Hem. & M. 515; Todd v. Moorhouse, L. R. 19 Eq. 69; Bennet v. Bennet, L. R. 10 Ch. Div. 474. See, however, 2 Pom. Eq. Jur. § 1039, and authorities cited.

We do not deem it necessary in this case to review the authorities upon this subject. The rule, as established by the weight of authority, probably is, as stated by JESSEL, M. R., in Bennet v. Bennet, supra, that ‘the doctrine of equity, as regards presumption of gifts, is this: That where one person stands in such a relation to another that there is an obligation on that person to make a provision for the other, and we find either a purchase or investment in the name of the other, * * * of an amount which would constitute a provision for the other, the presumption arises of an intention * * * to discharge the obligation, * * * and therefore, in the absence of evidence to the contrary, the puchase or investment is held to be in itself evidence of a gift. In other words, the presumption of gift arises from the moral obligation to...