Daly v. Kohn

• Decision Date: 04 June 1908
• Citation: 234 Ill. 259,84 N.E. 901
• Parties: DALY v. KOHN et al.
• Court: Illinois Supreme Court

234 Ill. 259

84 N.E. 901

DALY

v.KOHN et al.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 4, 1908.

Error to Superior Court, Cook County; Willard M. McEwen, Judge.

Action by Charles L. Daly, as trustee in bankruptcy of Sidney M. and Edward A. Kohn, against Sidney M. Kohn and others to set aside a conveyance of certain real estate. From a decree dismissing the bill for want of equity, plaintiff brings error. Reversed and remanded, with directions.

See 230 Ill. 436, 82 N. E. 828.

Alden, Latham & Young, for plaintiff in error.

David J. Lyon and Henry M. Seligman, for defendants in error.

HAND, C. J.

This was a bill in chancery filed by Charles L. Daly, trustee in bankruptcy of Sidney M. and Edward A. Kohn, in the superior court of Cook county, on February 6, 1903, against Sidney M. Kohn, Edward A. Kohn, and Katie Kohn, to set aside, in part, a conveyance bearing date September 24, 1901, and filed for record in the recorder's office of Cook county on September 2, 1902, by which Sidney M. and Edward A. Kohn, and their three sisters, conveyed to Katie Kohn the south 201 5/12 feet of lot 200, in Bronson's addition to the city of Chicago, and known as Nos. 375, 377, and 379 Division street. Answers and replications were filed, and the cause was referred to a master in chancery to take the evidence and report his conclusions. The master filed a report, and the court after overruling exceptions thereto, entered a decree dismissing the bill for want of equity, and the complainant has sued out a writ of error from this court to review said decree.

It appears from the pleadings, evidence, and master's report that Marcus Kohn died intestate in the year 1883, seised of said premises in fee simple; that he left him surviving Katie Kohn, his widow, and Bertha, Rose, Sidney M., Edward A., and Clara, his children and sole heirs at law; that Katie Kohn was appointed administratrix of the estate of Marcus Kohn, deceased, and guardian of his minor children; that in the spring of 1898 Sidney M. and Edward A. Kohn opened a grocery store at 231 Rush street, in the city of Chicago; that Sidney M. contributed $410 with which to start said business, Edward A. $126, and they borrowed $1,000 in cash of their mother, Katie Kohn, which went into said business; that Marcus Kohn, at the time of his death, was engaged in the grocery business at 375 Division street; that Joseph M. Eisner, a brother of said Katie Kohn, succeeded to said business; that March 4, 1901, Eisner sold said business to Sidney M. and Edward A. Kohn on time, for the sum of $3,700, and they moved their stock from Rush street to 375 Division street and continued in the grocery business at the latter place until September 2, 1902, when they were declared to be bankrupts and Charles L. Daly was appointed their trustee in bankruptcy; that at the time Sidney M. Kohn and Edward A. Kohn were declared bankrupts they owed $11,180.41; that the trustee of Sidney M. and Edward A. Kohn realized from the sale of their tangible assets the sum of $1,878.75 and collected of their book accounts between $700 and $800, which represented their entire estate other than their interest in said real estate; that on September 24, 1901, the five children of Katie Kohn executed and delivered to her a deed conveying to her the premises known as 375, 377, and 379 Division street for and in consideration of one dollar and love and affection, which deed Katie Kohn kept in her safety deposit box until the morning of the day upon which Sidney M. and Edward A. Kohn became bankrupts, without recording the same, which deed, on the morning Sidney M. and Edward A. Kohn became bankrupts, was filed by Katie Kohn for record and recorded in the office of the recorder of deeds of Cook county.

The master in chancery found, and his finding is fully supported by the evidence, that Sidney M. and Edward A. Kohn, on the date of the execution and delivery of said deed and on the date upon which said deed was recorded, were insolvent. The master, however, found that said deed was executed by the children of Katie Kohn and delivered to her by them pursuant to an oral agreement made between her and her children, entered into prior to the execution of the deed, that said children would convey said premises to her upon the youngest child of Marcus Kohn, deceased, attaining her majority, which finding was approved by the court, and the deed held to be a valid deed conveying to Katie Kohn the said premises, freed from the rights of the creditors of Sidney M. and Edward A. Kohn. The main questions for decision, therefore, arising upon this record, are, first, does the evidence establish an agreement by the children of Katie Kohn to convey said premises to her upon her youngest child attaining her majority; and, secondly, if such agreement is established, is the conveyance a good and valid conveyance as against the trustee in bankruptcy of Sidney M. and Edward A. Kohn?

We think it clear that such agreement, in order to be binding, must be established by clear and satisfactory evidence, in view of the fact that it appears that the grantors Sidney M. and Edward A. Kohn were insolvent at the time said premises were conveyed to Katie Kohn. The only evidence found in this record tending in any way to establish such agreement to convey is found in the testimony of Sidney M. Kohn, Edward A. Kohn, Henry M. Seligman, and Herman Wollenberger, and which is as follows:

Sidney M. Kohn testified as follows: ‘Q. Had there been any talk between you and your brother and your sister about signing this deed, prior to the time it was signed? A. Yes, sir. Q. How long a period prior to the time of the signing of this deed? A. A considerable time. Q. Was that conversation between you and your brother and all your sisters? A. Yes, sir. Q. I will ask you whether or not this deed was made pursuant to an agreement between you and your brother and all of your sisters conveying this property to your mother? A. Yes, sir.’

Edward M. Kohn testified as follows: ‘Q. Had you had a conversation with your brother or sisters relative to conveying this property to your mother prior to the making of this deed? A. Yes, sir. Q. How long before? A. I do not remember the exact date. Q. About how long a time-I am not asking you as to a minute or second-about how long? A. Eight or nine months previous to that time-at the time my sister came here from Denver. Q. What was done at that time? A. We agreed among ourselves that we children would transfer this property of ours to my mother if it was agreeable to all of us, and it was agreeale, and it was decided to sign it over to her. Q. Is it not a fact that your youngest sister was not then of age? A. Yes, sir. Q. Is not that the reason the conveyance was not made at that time? A. Yes, sir.’

Henry M. Seligman, who was the attorney who represented Mrs. Kohn in the settlement of her husband's estate, testified as follows: ‘Q. State if you ever heard any conversation in the family or among the children as to the purpose of the children to convey their interest in the father's estate to their mother. A. I did. Q. When? A. The first conversation I recollect at present took place in my presence in the beginning of 1898. Q. What was the occasion of that conversation, if you recollect? A. It was prior to the closing up of the accounts of Katie Kohn, as guardian of Sidney and Eddie Kohn, in the probate court. Both of these accounts were closed up at the same time-after Eddie became of age. Q. Who of the children of Katie Kohn were present at that conversation, if you recollect? A. I recall the presence of Sidney, Eddie, Rose, and Bertha-not Bertha-and Rose. I do not recollect whether Clara and Bertha were present or not. Q. Who do you mean by Rose? A. I mean Mrs. Wollenberger, a daughter of Katie Kohn. Q. What was said to you on that occasion by these children concerning this matter? A....