Coleman v. Connolly

• Decision Date: 22 December 1909
• Citation: 90 N.E. 278,242 Ill. 574
• Parties: COLEMAN et al. v. CONNOLLY et al.
• Court: Illinois Supreme Court

242 Ill. 574

90 N.E. 278

COLEMAN et al.

v.CONNOLLY et al.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from Circuit Court, Kane County; Mazzini Siusser, Judge.

Suit by John J. Coleman and another against James Connolly and another. From a judgment for plaintiffs, defendants appeal. Affirmed.Raymond & Newhall, for appellants.

C. I. McNett, for appellees.

FARMER, C. J.

Appellees, John J. and Mary A. Coleman, filed their bill in the circuit court of Kane county for the partition of lot 3, block 10, Clark Seminary addition to Aurora. The bill alleged that John J. Coleman was the owner of the undivided one-fourth and Mary A. Coleman the owner of the undivided three-fourths of the premises; that, Mary A. Coleman derived title to the whole of the premises by purchase from Anastasia Cummings Healy and Margaret Cummings Byrne, individually and as executrices and trustees of the last will and testament of Pierce Cummings, deceased, who was in his lifetime the owner of the property, and that thereafter Mary A. Coleman conveyed an undivided one-fourth interest to John J. Coleman, her husband. The bill further alleged that at the time the complainants therein purchased the property James Connolly and Mary Connolly were occupying it by virtue of a pretended receipt from one J. P. Callan; that on the 15th of February, 1907, the complainant Mary A. Coleman demanded possession in writing from James and Mary Connolly, but they refused to deliver it to complainant, and claimed to own or have an interest in the premises by virtue of the receipt from Callan, executed prior to the purchase by the complainant Mary A. Coleman; that Callan claimed to have executed the receipt referred to as agent of Anastasia Cummings Healy, and that it was executed prior to the purchase by Mary A. Coleman. The bill further alleged that Callan had no authority to execute the paper or to make a contract of sale to the premises with the Connollys; that they acquired no rights by virtue of said paper, and had no interest in or title to the premises. The prayer of the bill was for partition, and that the Connollys be decreed to account to complainants for the occupanycy of the premises.

The Connollys (appellants here) answered the bill, denying that complainants were the owners of the property, and alleging that on the 29th of July, 1904, they (respondents) purchased the real estate in controversy from Anastasia Cummings Healy, who was then sole executrix and trustee under the will of her father, through J. P. Callan, her agent, for the sum of $1,000; that they paid $60 at the time, and on March 1, 1905, entered into possession; that they have made valuable improvements on the premises, and have already been ready and willing to pay the balance due upon receipt of a good and sufficient deed; taht they had requested the execution of the deed, and offered to pay the balance due upon its receipt, but the deed has never been delivered. They further allege that they are now willing, and offer, to pay whatever sum the court may find is the balance due, upon delivery to them of a deed. The answer further avers that appellees had notice of the rights of appellants at the time they acquired a conveyance of the premises, and that they ought, in equity, to be decreed to convey to appellants the premises on payment of the balance due. The appellants also filed a cross-bill, setting up substantially the same facts recited in their answer, and praying that appellees be decreed to specifically perform the contract for the sale of the premises made by appellants with Anastasia Cummings Healy, through her alleged agent, Callan.

The evidence was heard before the chancellor, and a decree entered on the original bill for partition, and that appellants be required to account for appellees for the detention and use of the premises from the time appellee Mary A. Coleman acquired the conveyance therefor. The decree found the rental value of the premises during that period to be $12 per month, and directed payment of that sum to be made to appellees. The decree further found that Callan had no authority to make a contract with appellants for the sale of the property and that they obtained no interest in the property thereby. The cross-bill was dismissed for want of equity.

Pierce Cummings at the time of his death was the owner of the premises described in the bill. He left surviving him a widow and three daughters, Anastasia Cummings (now Healy), Elizabeth Cummings, and Margaret Cummings (now Byrne). The latter was the youngest of the three daughters and was a minor at the time of her father's death. By his last will Pierce Cummings devised his residuary estate (which included, among other real estate,the lot in controversy) to his three daughters. The will provided that in case of the death of either of them then the property should go to the servivor or survivors. The trustees and executrices of the will were given power and authority to take charge of the residuary estate, keep the same in repair, and collect the rents therefrom, and in their discretion, if deemed for the best interests of all concerned, to sell the property, full power and authority to sell, make conveyances, and do everything necessary to vest title in the purchaser being expressly conferred. The daughters Anastasia and Elizabeth were appointed executrices, and the clause appointing them reads as follows:

‘Eleventh-I hereby nominate and appoint my two children Anastasia and Elizabeth Cummings to be the executors of this my last will and testament and my trustees for the carrying out of the provisions of this will, and in case of the death or disqualification or the failure to act of any one of my said executors and trustees, then I appoint as her successor my said daughter Margaret, who shall qualify after she reaches her majority, and pending which time such of my said daughters first named as has qualified hereunder may act alone; and in case of the death or other disqualification of two of my said children then the survivor shall act as such executrix and trustee under this will; and any discretionary powers hereinbefore granted to my executors or trustees shall be vested in any one or more of my said children who may be acting as executors or trustees under this will at such time as in the judgment of such one or more may require the exercise of such discretion. And I direct that none of my said children shall be required to give any bond or security as such executors or trustees, as aforesaid.’

Pierce Cummings died October 21, 1893, and letters were issued to his daughters Anastasia and Elizabeth on October 31, 1893. Elizabeth died September 12, 1896. At that time Margaret was a minor and did not become of age until the year 1899 or 1900. The proof is not definite as to the exact time she attained her majority. After the death of the daughter Elizabeth, and until the daughter Margaret attained her majority, Anastasia was sole executrix and trustee, with full power to carry out the provisions of the will. Letters testamentary were not issued to the daughter Margaret until July 28, 1904. The appellants claim title to the premises in controversy by virtue of authority they allege Anastasia Cummings Healy gave Callan, as her agent, to sell the property before letters testamentary were issued to the daughter Margaret. It is not claimed that authority to make the sale was given by Anastasia Cummings Healy before Margaret attained her majority. It is not denied that the alleged authority given by Anastasia Cummings Healy to Callan to sell the property was long after Margaret had attained her majority, but it was before she had qualified as executrix. The alleged authority to Callan to make the sale of the property is in a letter written him by Anastasia Cummings Healy on...