Coffey v. Coffey

• Decision Date: 17 April 1899
• Citation: 179 Ill. 283,53 N.E. 590
• Parties: COFFEY v. COFFEY.
• Court: Illinois Supreme Court

179 Ill. 283

53 N.E. 590

COFFEY

v.COFFEY.

Supreme Court of Illinois.

April 17, 1899.

Appeal from appellate court, Second district.

Proceeding by Mary A. Coffey against Thomas Coffey, executor of the will of Peter Coffey, deceased. From a judgment of the probate court dismissing the petition, petitioner appealed to the circuit court, which rendered judgment for the executor; and petitioner again appealed to the appellate court, which affirmed the judgment (74 Ill. App. 241), and she again appeals. Affirmed.

The appellate court, in deciding this case, has prefaced its opinion with the following statement of facts:

‘Peter Coffey died testate at Peoria, January 17, 1895, leaving appellant, his widow, and no lineal descendants. His will was duly admitted to probate, and his brother, Thomas Coffey, the appellee, is the executor. The widow elected to take the share given her by law, and has already received $85,000 from the estate. She began this proceeding by filing a petition in the probate court to compel the executor to inventory and distribute 435 shares of the capital stock of the Peoria Gaslight & Coke Company, which she alleged Peter Coffey owned at the time of his death, over and above the shares of said stock which the executor had inventoried. The executor answered, alleging he had inventoried all the personal property owned by Peter Coffey at the time of his death, and there was a hearing in the probate court, and the petition was dismissed. Mrs. Coffey appealed to the circuit court, and there moved to submit to a jury the questions-First, whether Peter Coffey on January 7 and 8, 1895, was of a sound and disposing mind and memory; and, second, whether Thomas Coffey, the executor, wrongfully converted to his own use the 435 shares of stock in question. She supported the motion by an affidavit that the executor claimed testator gave him said shares January 7, 1895, and that at the trial there would be a controversy as to whether testator did make such gift, and whether he was of sound mind and memory at that time. The circuit court denied said motion, and this action is assigned for error. There was a hearing in the circuit court, and a final order adjudging that said shares were duly transferred upon the books of said gas company and delivered to Thomas Coffey by direction of Peter Coffey in his lifetime, in accordance with a trust declared in writing by said Peter Coffey on June 4, 1887, and on that day accepted by said Thomas Coffey, and that Thomas Coffey takes and holds the legal title to said shares of stock in accordance with the provisions of said trust. From that order Mrs. Coffey prosecutes this further appeal.

‘On June 2, 1887, Peter Coffey executed the will which was probated after his death, by which will he gave legacies amounting to about $56,000, and directed the expenditures of certain sums for monuments and masses, and directed that, if his estate was insufficient to pay these legacies, they should share pro rata, and, if it was more than sufficient to pay them, the legacies should be increased pro rata so as to absorb his entire estate. Two days later he executed a trust instrument. Each of said instruments was prepared by Judge Worthington, and each is elaborate in detail; and it is claimed that each had its place in the disposition of his estate which he had then determined upon,-the trust instrument to be a disposition in his lifetime of the special property described therein, and the will to be a disposition of all that should be left at his death. The trust instrument declares that ‘Peter Coffey does hereby convey, transfer, assign, and deliver to his brother, Thomas, the following shares of stock, indorsed in blank’; naming 335 shares of the gas company before mentioned, 200 shares of the Belleville Gaslight & Coke Company, and 10 shares of the Peoria Watch Company. It declares that said gift and conveyance is made upon the terms and conditions therein named, which are, among other things, that $15,000 of the proceeds of the stock, if converted into money, or stock to that amount at its market value, if he prefers, shall go and belong absolutely to said Thomas, and that the balance of said stock is conveyed to him in trust for the purposes specified, namely: First, $15,000 for the relief, education, and maintenance of orphans of Catholic parents in the diocese of the Catholic bishop of Peoria, in such way and manner as may be dictated by Bishop Spalding, of said diocese, or his successor in office; $1,000 for the relief, education, and maintenance of the orphans of Catholic parents of the diocese of the Catholic bishop of St. Louis, Missouri, in such way and manner as may be dictated by Bishop Kendrick, of said diocese, or his successor in office; and $1,000 to be paid to the directors or managers of St. Mary's Infirmary, at St. Louis, Missouri. Said instrument further provides that if the proceeds of the stock, after Thomas has received said $15,000, be insufficient to pay the amounts specified for charitable uses, said amounts for charitable uses shall be scaled down pro rata, and, if there is any surplus after paying the $15,000 to Thomas and said amounts for charitable uses, such surplus shall go absolutely to Thomas. The instrument directs that Thomas is to use his judgment and discretion about the time and manner of converting said stock into money, subject to this limitation of time: that the said amounts for charitable uses are to be paid within five years of the date of the instrument; or that Thomas can hold and retain absolutely as his own all said stock, if he pays said amounts for charitable purposes within five years from the date of the instrument. Said instrument further provides that, if Thomas declines or refuses to accept the trust, then the conveyance is to be null and void, and said stocks are to revert to Peter, as his sole property; and if said Thomas shall accept, and agree to enter upon the duties of, said trust, his acceptance is to be in writing, indorsed upon the conveyance. At the foot of said instrument was this acceptance, signed by Thomas Coffey: ‘I hereby accept the within property and trust this 4th day of June, 1887.’ So far as shown by the evidence held competent below, Peter Coffey did not at that time place said shares of stock in the manual possession of Thomas, though long before January 7, 1895, Thomas had a key which enabled him to have access to the safety box where said certificates of stock were kept by Peter; and this possession by him gave him at least access to, if not possession of, those certificates of stock, and it may be that Peter placed said key in his hands expressly for the purpose of this trust. Peter and Thomas were intimately associated in their business affairs. Thomas was president of the Peoria Gaslight & Coke Company; Peter was its superintendent for over twenty years, and until his death; and Matthew Farrelly, their cousin, and the one who made the transfer of the shares here in question, was secretary of the company. Each of the three was a director in the company. Thomas Coffey lived with Peter at the time of his death, and for several months before; and Farrelly had lived with Peter for over twelve years, and till a few months before he died. Peter had had a stomach trouble for some years, and became seriously ill therefrom in November, 1894, and was confined to his home from about the middle of the month. His disease was supposed to be cancer of the stomach, and he suffered great pain, which his physician tried to relieve by the use of laudanum. He had a severe hemorrhage left him very weak, and a slighter one several days later. He died January 17, 1895. days later. He died January 1m, 1895. About November 19, 1894, he sold the Belleville stock described in said trust instrument.

‘Bishop Spalding was a friend of the deceased, and called upon him four or five times during his last illness. He called on a day which all the evidence, taken together, shows was January 7, 1895,-two days after the serious hemorrhage, and at a time when Peter must have realized that his illness was of a very serious character. Peter asked the bishop if Thomas has shown him the will and trust instrument. The bishop answered in the negative, and Peter said: ‘He is in the house. Go and tell him to show them to you.’ The bishop went to another room, and saw Thomas; and the latter showed him said papers, and he read them. The bishop returned to the sick room, and Peter asked if Thomas had shown him the documents. The bishop replied that he had, but that the limitation of the time of the trust instrument had caused it to be of no legal value. The bishop referred to the provision requiring the amounts for charitable uses to be paid within five years of the date of the instrument. Peter seemed provoked, and said if his brother had attended to it at as the bishop understood him, that he but it was too late now to attend to it; meaning, as the biship understood him, that he was too ill then to attend to the preparation of a new document. He, however, told the bishop he wanted that request carried out, and said he had left something for charity for the orphans of Metamora; pointing at the...