Crowe v. Kennedy

• Decision Date: 22 December 1906
• Citation: 79 N.E. 626,224 Ill. 526
• Parties: CROWE et al. v. KENNEDY et al.
• Court: Illinois Supreme Court

224 Ill. 526

79 N.E. 626

CROWE et al.

v.KENNEDY et al.

Supreme Court of Illinois.

Dec. 22, 1906.

Appeal from Appellate Court, First District.

Bill by Louise Crowe and others against Grace Kennedy and others. From a judgment of the Appellate Court, affirming a decree in favor of defendants, plaintiffs appeal. Affirmed.James R. Ward and Lester E. Lee (Andrew J. Corcoran, guardian ad litem), for appellants.

C. A. Coolidge, E. F. Comstock, and E. M. St. John, for appellees.

This is a bill filed February 24, 1904, for the partition of certain real estate in Chicago, Ill., of which Michael Crowe died seised January 19, 1887; the main question being whether appellee Grace Kennedy has a valid and subsisting lien on a portion of said real estate under a trust deed executed by said Crowe and wife July 26, 1886, to secure his note for $4,000, or whether the right to enforce said lien is barred by the statute of limitations.

Michael Crowe, by his will, made January 3, 1887, devised certain of his real estate (including that included in the trust deed) to his wife, ‘in trust, nevertheless, for the following purposes and uses, to wit: That the income of my said estate, both real and personal, shall be payable to my said wife, as such trustee, to be used by her for the support of herself and my said children, and that the inheritance and accumulated capital of said estate, upon the arrival of my then youngest living child at the age of twenty-one (21) years, shall be equally divided among my said children, who shall then be living, share and share alike, as tenants in common of my said estate. * * * But it is my wish that until the arrival at the age of twenty-one (21) years of my then youngest living child, my beloved wife, as such trustee, shall have express power to lease, control, manage, and regulate my said estate as in her opinion is most prudent.’ The widow was also nominated as executrix. In August, 1903, the youngest child became of age. This bill was filed by the widow, personally and as trustee, and all of the children then living (except an insane daughter, Maria) against said Maria and Grace Kennedy and the trustee and successor in trust in said trust deed. The latter three defendants filed their answer, setting up said trust deed, averring that the interest on the note secured thereby had been paid to January 26, 1904, and that the same was a valid lien. By amendment to the bill March 29, 1904, the complainants alleged that said note and trust deed were barred by the statute of limitations long before the commencement of the suit, which appellees in their answer denied, repeating their allegations of payment of interest. The matter was referred to a master to take proofs, and he reported July 5, 1904, that the interest had been paid to January 26, 1904, by John V. and Albert J. Crowe, sons of said deceased, who from the time of the death of their father received the rents of the real estate of which he died seised and paid taxes thereon and supported the widow and family; that said payments of interest were made without the knowledge or authority of Maria Crowe, trustee, and the other heirs, and were not binding upon said trustee or other heirs, and that therefore the right to enforce the lien of said trust deed was barred by the statute of limitations. To these findings appellee Grace Kennedy objected. December 16, 1904, she filed a cross-bill for the foreclosure of said trust deed, setting up substantially the same facts found in her answers to the original bill, and answers were filed thereto, but it appears that the defendant Grace Kennedy elected to rely upon her answers to the original bill.

Upon the hearing in court on the master's report, the objections of appellee Grace Kennedy were allowed to stand as exceptions and were sustained, and decree of partition was entered March 6, 1905, finding that the five children of said Michael Crowe, who were the complainants in the bill, and the defendant Maria E. Crowe, each had title in fee simple to a one-sixth part of the real estate described in the bill, and that partition and division thereof among them be made in this proceeding, subject to the lien or claim of the defendant Grace Kennedy in said premises or any part thereof; ‘that the exceptions of the defendant Grace Kennedy to the master's conclusions of law and fact, as found in said report, be, and the same are, hereby sustained, and that in all other respects the report of the master, and his conclusions and recommendations therein, be, and the same is, hereby confirmed.’ The decree also finds that neither said note nor trust deed was ever presented to the probate court of Cook county against the estate of Michael Crowe, deceased, or to the executrix, for allowance or payment, and that Maria Crowe, as trustee, has never paid any portion of her interest of said note, but that after the death of Michael Crowe, deceased, John V. Crowe and Albert J. Crowe, his sons, commenced doing business as Crowe Bros., and thereupon paid the interest on the said principal note as the same became due, by means of checks drawn by them upon the account of Crowe Bros., and that from the facts and circumstances proven ‘Maria Crowe, trust...