Emmerson v. Merritt

• Decision Date: 19 April 1911
• Citation: 249 Ill. 538,94 N.E. 955
• Parties: EMMERSON v. MERRITT et al.
• Court: Illinois Supreme Court

249 Ill. 538

94 N.E. 955

EMMERSON

v.MERRITT et al.

Supreme Court of Illinois.

April 19, 1911.

Appeal from Circuit Court, Wayne County; J. R. Creighton, Judge.

Action by Charles Emmerson, executor of William Lines, against Lizzie Merritt and others. From a judgment dismissing the bill, complainant appeals. Reversed and remanded, with directions.

Kramer, Kramer & Campbell and S. E. Quindry, for appellant.

Thomas H. Creighton, for appellees.

CARTWRIGHT, J.

On March 13, 1907, William Lines executed two deeds, one to his wife, Mary Lines, and the other to his two daughters, Lizzie Merritt and Hattie Lines, conveying by each deed an undivided one-half of an 80-acre tract of land in Wayne county. He died on August 17, 1909, and Mary Lines also died, leaving all her property by will to Lizzie Marritt. The appellant, Charles Emmerson, as executor of the will of William Lines, filed his bill in this case on November 30, 1909, in the circuit court of Edwards county, against the appellees, Lizzie Merritt, Hattie Lines (alias Hattie Stroup), and B. F. Thomas, a solicitor to whom an interest in the land had been conveyed to secure legal services in defending the title, alleging that by the deeds the grantor intended to convey to each of the grantees therein two acres only, but that through the mistake of the scrivener each deed was made for an undivided one-half of the 80 acres, and praying that the mistakes might be corrected and the deeds canceled. The cause was transferred to Wayne county, where the land was situated. The defendants first demurred to the bill, and the abstract shows no ruling on the demurrer. The defendants afterward answered, denying that there was any mistake or that the land was a part of the estate of William Lines but raising no question as to the right of the complainant to maintain the suit. The cause was heard on the merits, and the bill was dismissed for want of equity.

The will of William Lines provided for the payment of his debts and funeral expenses and gave legacies to his children and grandchildren, and by the eighth clause provided for the division of the residue into five equal parts, to be distributed as therein directed. The ninth clause is as follows: ‘My executor hereinafter named shall sell and convey, by deed, all of my property, both real and personal, and after the payment of my funeral expenses and debts and specific legacies, divide the balance or residue into five equal parts, making distribution as directed in clause 8.’

[1][2] Although nothing was said in the circuit court concerning the right of the complainant to maintain the suit and the decision was upon the merits, the questions of the right of the complainant to any relief and the omission of necessary parties may be raised on appeal, and it is insisted in this court that the complainant had no such right and that the heirs at law are the only parties entitled to file the bill.

[3] The real estate of which a decedent dies seised descends directly to his heir or devisee, and no title or right of possession or interest therein passes to an executor unless given to him by the will, either expressly or by necessary implication.

[4] If a testator by his will simply directs his executor to sell real estate and apply the proceeds to certain specified purposes, the executor will take a power, only; but, if there is a devise to the executor to sell and apply the proceeds as directed, he will take an estate in the land. West v. Fitz, 109 Ill. 425. It is not necessary, in order that the executor may take the fee, that the legal estate should be in terms devised to him. He will take that quantity of interest by the will which the purposes of his trust require, and, if it is necessary that he should have the fee to enable him to execute the trust, it will be held to have been devised to him by implication. Ebey v. Adams, 135 Ill. 80, 25 N. E. 1013,10 L. R. A. 162.

If an executor is required to lease real estate and collect and pay over rents for a term of years or for the life of a beneficiary, he will take an estate in the land for years or life, as the case may be, and, if at the expiration of such term he is to sell and convey the land, his estate will be a fee. Accordingly, in Olcott v. Tope, 213 Ill. 124, 72 N. E. 751, where the executor was to collect the rents of the testator's farm and at the expiration of the term for which the farm was leased to either lease it again or sell it, according to his judgment, it was decided that the executor took the fee. The rule that the estate of a trustee in real estate is commensurate with the powers conferred by the trust and the purposes to be effected by it was applied, and it was held that the executor, being authorized to sell or lease, at his discretion, was vested with the fee for the purposes of the trust. In Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256,122 Am. St. Rep. 169, the testator appointed his wife executrix and provided that land was to be rented and land sold to produce a fund. The court stated and applied the same doctrine that where a person is named in a will to carry out its provisions, and he cannot carry them out unless he holds the legal title, he will be held, by implication, to hold such title. In Fenton v. Hall, 235 Ill. 552, 85 N. E. 936, the executor was directed to reduce and convert into cash all the property of the testator, both real and personal, to sell the same at public or private sale, in his discretion, and upon such terms as in...