Cross v. Cross

• Decision Date: 20 January 1954
• Docket Number: No. 33004,33004
• Citation: 116 N.E.2d 892,2 Ill.2d 104
• Parties: CROSS v. CROSS.
• Court: Illinois Supreme Court

Page 892

116 N.E.2d 892

2 Ill.2d 104

CROSS v. CROSS.

No. 33004.

Supreme Court of Illinois.

Jan. 20, 1954.

Berry & Simmons, Rockford, for appellant.

Knight, Haye & Keegan, and T. O. Prather, Rockford, for appellee.

DAILY, Justice.

In May, 1947, Charles M. Cross filed a suit for divorce in the circuit court of Winnebago County against his wife, Lorene Cross, who is the appellant in this court. Among other things, the complaint alleged that the husband had paid all of the purchase price for their home, title to which was in the husband's name, and that appellant had paid nothing into the property either by way of principal or interest. A month later, on appellant's petition, the court entered an order awarding her temporary alimony of $30 per week. Subsequently appellant filed an answer and a counterclaim, which was later amended, and in it she alleged that the residence property was paid for in part with money she had earned, and prayed for a finding and order that she was entitled to a one-half interest therein. On January 7, 1948, the court granted appellant a decree of divorce on the ground that her husband had wilfully deserted her. Insofar as pertinent to this appeal, the decree contained these provisions:

'It Is Further Ordered that the temporary order hereinbefore entered in this cause decreeing that support monies be paid to the counter-plaintiff be and the same is hereby continued in force until the further order of this court.

'It Is Further Ordered that all questions in relation to final order of monies for the necessary and reasonable support of the counter-plaintiff and her rights, if any, in properties owned by the counter-defendant, both real and personal, except the household furniture and fixtures, which are hereby ordered to be the sole property of counter-plaintiff, and in any and all questions not finally adjudicated by this decree between the parties hereto be, and the same are hereby reserved until further order of this court, and this cause be and same is hereby continued for further hearing or hearings on said issue.'

Subsequent to the divorce, Charles M. Cross married the appellee, Eleanor Cross, and their union continued to exist until his death on December 18, 1949. During the same period appellant continued to live in the residence she and her divorced husband had occupied, and it is undisputed that she received alimony payments of $30 per week up to the time of this death. The husband died testate, and, by the terms of his will, Eleanor Cross was made the sole legatee and devisee of all the personal and real property he owned at the time of his death.

On January 30, 1950, Lorene Cross suggested the death of Charles M. Cross and obtained leave to file a further amendment to her counterclaim in which she sought to make Eleanor Cross a party, both individually and in her capacity as executrix of the last will of Charles M. Cross, and in which appellant alleged that she was, in equity, entitled to the real estate heretofore described. The amendment concluded with a prayer that she be awarded the real estate of the decedent, a portion of the personal property, alimony during the time the decedent's will was in process of probate, attorney's fees and an injunction restraining Eleanor Cross from disposing of the property. The court denied the petition for an injunction but granted appellant leave to file a supplemental counterclaim adding additional parties and ordered summons to issue for the additional parties.

The supplemental counterclaim filed on February 8, 1950, alleged that although no property settlement was ever made pursuant to the reservation in the decree of divorce, appellant was still residing in the home she and her former husband had occupied for twenty-six years prior to the divorce; that she had worked for many years to augment the family income, even to the extent of operating a small business for four years; that she contributed the sum of $20 a week to family expenditures; and that since the time her husband separated from her, she had expended approximately $700 for permanent improvements on the premises. Appellant further alleged that her husband had represented to her that she was the owner of a one-half interest in the property and that she was ignorant of the fact that title had not been taken in both their names as her husband said it would. The prayer of this pleading was that she be awarded the home, a portion of the personal property of the decedent, alimony during the period of probate, attorney's fees and, in the alternative, that she be awarded a dower interest in the property. Appellee filed a motion to strike and, after hearing, the court granted the motion insofar as the prayer for alimony and attorney's fees were concerned but denied it insofar as it related to the prayer for relief concerning real estate and personal property. Appellee filed an answer and subsequently, in February, 1953, filed a motion to dismiss the supplemental counterclaim for want of proper prosecution. On April 7, 1953, appellant filed a further amendment to her counterclaim praying for an award of dower and a right of homestead stead in the residence property. This amendment was stricken, however, on motion of appellee.

At a hearing which followed, and which the abstract shows was almost exclusively a colloquy between court and counsel, the court refused to hear or admit evidence by which appellant sought to establish her equitable interest in the residence property, it appearing that the court was of the opinion that appellant was attempting to establish a resulting trust, as was the case in Carlson v. Carlson, 409 Ill. 167, 98 N.E.2d 779, where the same jurist presided in the trial court. The record reflects that the proof refused would tend to show that appellant had managed a millinery shop, had been employed as a saleslady in a department store, had operated a confectionery store and that the income from her labors went into the home. Also that appellant had cashed insurance policies that went to pay taxes and interest, that the decedent had admitted the home would have been lost had it not been for appellant and that he had stated in the presence of appellant and others that title to the house was going to be taken in both their names. Having refused the proof, the court thereupon entered a decree which found that the equities in the cause, insofar as they...