Edwards v. Lane

• Decision Date: 25 October 1928
• Docket Number: No. 18841.,18841.
• Parties: EDWARDS et al. v. LANE.
• Court: Illinois Supreme Court

331 Ill. 442

163 N.E. 460

EDWARDS et al.

v.LANE.

No. 18841.

Supreme Court of Illinois.

Oct. 25, 1928.

Error to Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Edward Barry, Judge.

Petition by Verna Edwards and another for the removal of Edith Lane as executrix of the will of Mary M. Thrush, deceased, and for revocation of letters issued to her. From order dismissing petition for removal, petitioners appealed, and from order denying motion to modify order restating account, the executrix appealed, which appeals were consolidated and heard together in Appellate Court, which court affirmed order dismissing petition and dismissed executrix's appeal, whereupon petitioners brought error.

Reversed and remanded, with directions.Costigan & Wollrab, of Bloomington, for plaintiffs in error.

C. M. Peirce, of Bloomington, for defendant in error.

FARMER, J.

The probate court of McLean county entered an order for the removal of Edith Lane as executrix of the will of Mary M. Thrush, deceased, and for revocation of letters issued to her. At the same time the county court disapproved a report filed by the executrix and restated the account. The executrix appealed to the circuit court, and that court dismissed the petition for the removal of the executrix. In the appeal to the circuit court the executrix moved for a modification of the order of the probate court restating the account. The motion to modify was denied by the court. The legatees under the will of Mary M. Thrush appealed from the judgment and order of the circuit court dismissing the petition for removal. The executrix also appealed, and complained the circuit court erred in refusing to modify the order restating her account. The appeals were consolidated and heard together in the Appellate Court. That court affirmed the order dismissing the petition for removal of the executrix and dismissed her appeal because an appeal from a part only of the judgment of the circuit court would not lie. This court granted a writ of error on the petition of the legatees under the will of Mary M. Thrush.

It is impossible to determine from the printed opinion of the Appellate Court what the facts involved were in the proceedings in the courts below. They cover a period of approximately four years and are somewhat complicated.

Mary M. Thrush was the mother of the executrix, Edith Lane. Mrs. Thrush died testate, and her daughter Edith was appointed executrix without bond on April 14, 1924. Mrs. Thrush's husband had predeceased her, and she left surviving her daughter, Edith, and two granddaughters, children of a deceased daughter, viz., Verna Sackett (now Verna Edwards) and Imo Sackett, as her only heirs. The will directed the payment of the testatrix's debts and funeral and burial expenses. She directed that after the payment of debts and funeral expenses ‘the residue and remainder and unused portion of a certain real estate mortgage in the sum of $12,000,’ executed by Irvin and Nellie Sackett, the latter being the stepmother of Verna and Imo, be divided equally between Verna and Imo, share and share alike. The will directed that the remainder of the property owned by the testatrix go to Edith Lane, nominated executrix without bond. Edith Lane qualified as executrix and inventoried as property of the estate household goods and personal effects, about $100, and debts owing the estate by Irvin Sackett in the form of two notes of $6,075 each, with interest thereon. The will was executed June 4, 1923, and, as we have stated, letters testamentary were issued to Mrs. Lane April 14, 1924. December 18, 1924, the executrix wrote Sackett that he had not paid the interest on the two $6,000 notes he owed the executrix's mother at her death; that it was the executrix's duty to collect the same; that creditors were demanding their money and there was nothing in her hands to pay them with until she collected the interest from Sackett or sold the notes. She reminded Sackett that the will gave the notes to his daughters, Verna and Imo; that she was advised by her attorney it would be necessary to sell the notes to pay the debts; and that she would be compelled to petition the court for an order to sell them at a discount. By her letter she advised Sackett the best way would be for him to obtain a new loan and pay the notes she held as executrix and which were secured by a trust deed; that that would enable her to pay the debts and also pay Verna and Imo a substantial part of the proceeds of the notes, and, when the estate was finally closed, pay them whatever, balance was due. Thereupon the attorney for the executrix and the attorney for plaintiffs in error conferred and reached a tentative agreement that plaintiffs in error would raise the amount necessary to pay any debts of the estate and wait until the expiration of one year from the granting of letters and then the money or property devised should be delivered to them. The attorney for Mrs. Lane testified the tentative arrangement had the approbation of Mrs. Lane but was never definitely concluded. Before the agreement could be executed Walter W. Lane, husband of the executrix, on March 12, 1925, filed a claim against Mrs. Thrush's estate for $10,000 for work, labor, and services performed by him for Mrs. Thrush in her lifetime. Thereupon the attorney who had been representing the executrix withdrew and declined further to represent her. Lane was represented in filing the claim by an office associate of the attorney who represented the executrix after her former attorney withdrew. The filing of Lane's claim prevented the consummation of the agreement the parties had contemplated before the claim was filed. It will be observed the claim was filed only a short time before the year expired after letters testamentary were granted. Lane and the executrix were husband and wife and were living together. No notice was given plaintiffs in error of the filing of the claim, but the executrix entered her appearance in writing and consented to the allowance of the claim. Afterwards, upon the application of plaintiffs in error, the probate court set aside the allowance of the claim, appointed an administrator pro tem., and the claim was tried by a jury in the probate court. The claim was disallowed, and Lane appealed to the circuit court of McLean county, where the case was again tried before a jury and the claim again denied. No further appeal was prosecuted. Sallie Arrowsmith, a sister of the testatrix, then residing with the Lanes, also filed a claim for nursing and care of the testatrix for $540. An administrator pro tem. was appointed by the probate court, but after the verdict in Lane's case the claim was dismissed for want of prosecution. Near this time Walter and Edith Lane visited other relatives, Mr. and Mrs. Whitesell. The Whitesells testified they talked about having no means to pay the bills of the estate and that they would have to dispose of the notes to pay them and some other bills that were coming in; that Mrs. Lane said they had to take care of the old folks and were entitled to pay for it; that Lane said the Sacketts never did anything, and ‘if we don't get our pay we will make them spend it; it will never do them any good; Sackett always knocked me and hissed me ever since I come into the family.’ Mrs. Whitesell testified Lane said he expected to get something out of it or stay with it until he did; that if he did not get anything out of it he was going to see that they spent it. This testimony was not denied, although Mrs. Lane testified as a witness. Plaintiffs in error brought a replevin suit for the recovery of the notes as their property under the gift made by the will. The replevin suit was not tried, but was changed to a chancery proceeding. An agreement was made between the parties, and the two $6,000 notes were impounded with the circuit clerk pending the ultimate disposition of the estate.

Mrs. Lane, the executrix, petitioned the probate court for the appointment of herself as administratrix of the estate of her father, Benjamin J. Thrush. The petition for letters of administration by Mrs. Lane was filed June 13, 1925, three years after her father's death. It stated Thrush left personal property to the amount of $12,100. He left surviving him Mrs. Lane, his daughter, and Verna and Imo Sackett, grandchildren, as his heirs. Benjamin and Mary M. Thrush were husband and wife and in 1912 sold their farm for $24,000. They gave each of their daughters, Edith Lane and Susan Sackett, the latter the mother of plaintiffs in error, who was then living, $12,000. Susan and her husband executed a written instrument agreeing to pay Benjamin and Mary M. Thrush, as long as they lived, 3 per cent. on the $12,000, and never defaulted in their payments. It was further provided by the agreement entered into between Benjamin and Mary M. Thrush and their two daughters that if Susan should predecease her mother or father her children should get the benefit of the gift. Susan died in 1918. Afterwards her husband gave to Mrs. Thrush, after her husband's death, two notes for $6,000, secured by a mortgage on his farm, to take the place of the former agreement. These two notes are the property given to plaintiffs in error by the will of Mrs. Thrush. They were inventoried by Mrs. Lane as the property of Mrs. Thrush's estate. By the petition for letters on the estate of Benjamin Thrush, Mrs. Lane represented the $12,000 was his property. The $12,000 was given to Mrs. Sackett, mother of plaintiffs in error, by Benjamin and Mary M. Thrush during the lifetime of Benjamin. Mrs. Lane, as administratrix of Benjamin Thrush's estate, brought suit on February 10, 1926, in the McLean county circuit court against Irvin Sackett, father of plaintiffs in error, for $26,000, alleging Sackett had executed notes in various amounts which were lost, and also for recovery of the two $6,000 notes executed by him and given to...