Friend v. Northern Trust Co.

• Decision Date: 27 May 1942
• Docket Number: Gen. No. 42011.
• Citation: 314 Ill.App. 596,42 N.E.2d 330
• Parties: FRIEND v. NORTHERN TRUST CO. ET AL.
• Court: United States Appellate Court of Illinois

314 Ill.App. 596

42 N.E.2d 330

FRIEND

v.NORTHERN TRUST CO. ET AL.

Gen. No. 42011.

Appellate Court of Illinois, First District, Third Division.

May 27, 1942.

Appeal from Superior Court, Cook County; John J. Lupe, Judge.

Suit by Magdalen Friend against the Northern Trust Company, executor of the estate of Emanuel Friend, deceased, and others, in the nature of a bill to review a divorce decree between complainant and defendant's testate. From an adverse decree, complainant appeals.

Affirmed. Floyd Lanham and Arthur R. Hall, both of Chicago, for appellant.

D'Ancona, Pflaum, Wyatt, Marwick & Riskind, Winston, Strawn & Shaw, and John D. Black, all of Chicago, for defendants in error.

BURKE, Presiding Justice.

On May 18, 1917, an antenuptial agreement was executed at Chicago between Emanuel Friend, a physician and surgeon of that city, and Magdalen Jane Alexander, whereby the latter purported to waive any and all rights in the estate of her intended husband for the sum of $5,000 in the event the parties should separate prior to the husband's death, and the sum of $25,000 in the event they continued to live together until his death. The parties were married at Chicago on May 26, 1917. At that time she was 24 years and he was 49 years of age. She received her education in a convent in the State of Iowa. After completing her education and prior to her marriage to Dr. Friend, she gave lessons in speaking and taught art and elocution in Chicago. On December 8, 1933, Dr. Friend filed a bill for divorce in the Superior Court of Cook County. The bill alleged that on October 27, 1932, Magdalen Friend wilfully deserted and abandoned him for the space of one year and upwards. Magdalen Friend, answering, admitted the marriage, but denied she had deserted him. On December 13, 1933, the Superior Court of Cook County entered a decree finding that on October 27, 1932, Magdalen Friend wilfully deserted and abandoned Emanuel Friend without any reasonable cause therefor, and that she persisted in such desertion for the space of one year and upwards prior to the filing of the bill of complaint. The decree dissolved the marriage between the parties, and found that pursuant to an agreement the antenuptial contract of May 18, 1917, was terminated. Emanuel Friend was ordered to pay Magdalen Friend the sum of $25,000 in full and complete settlement and adjustment of all her rights in the property of the complainant, and of all claims and demands for alimony and support. Emanuel Friend was also ordered to pay Magdalen Friend for her solicitors' fees and costs the sum of $5,100, and to deliver to her one LaSalle automobile. The court further decreed that all the right, title, claim or interest of Magdalen Friend in any property then owned by him, or thereafter acquired by him by way of jointure, homestead, dower or otherwise be forever terminated and barred. The payment of the amounts awarded was made in open court when the decree was entered. No appeal was prosecuted from the decree of divorce entered on December 13, 1933. No children were born to or adopted by Emanuel and Magdalen Friend. On November 8, 1935, Magdalen Friend married George H. J. Langskov at Laguna Beach, California. Dr. Friend died at Chicago on July 19, 1938. On September 7, 1938, his last will and testament was admitted to probate by the Probate Court of Cook County, and the Northern Trust Company qualified as executor. On September 5, 1939, a complaint under the name of Magdalen Friend was filed in the Circuit Court of Cook County, naming the Northern Trust Company executor, and others, as defendants. Defendants answered and the case was heard before the Chancellor in a trial lasting more than seven weeks. In the taking of depositions and in open court, plaintiff called 24 witnesses and defendants called 40 witnesses. The Chancellor gave an opinion which carefully reviewed the testimony of the witnesses on every feature of the case, and analyzed the law relating to the facts as found by him. He entered a decree finding against the contentions of plaintiff and dismissed her complaint for want of equity. This appeal followed.

Plaintiff's theory is that the divorce decree entered on December 13, 1933, is void because (1) a separate maintenance proceeding was pending between the parties thereto for 63 days of the time relied upon by defendant's testate, as the 12 months statutory period of wilful desertion; (2) the defendant therein at the time the divorce decree was entered and for some years prior and subsequent thereto, was an insane person, wholly incapable of transacting business in her own interest; and (3) the defendant therein was an insane person, wholly incapable of transacting business in her own interest during the entire time relied upon as the 12 months period of desertion, wherefore she was incapable of committing wilful desertion. Plaintiff's further theory is that the antenuptial contract is void because at the time it was made an engagement to marry existed, requiring the defendant's testate to fully disclose the extent, nature and character of his wealth; that the sum provided to be paid to the wife was grossly disproportionate to what she was entitled to receive, and its procurement constituted a fraud; that since the divorce decree is void for either of the reasons asserted, it may be attacked at any time, either in a direct or a collateral proceeding, and that the court should have declared such decree to be a nullity and void. The theory of the defendants is that (1) plaintiff's case is without foundation either in fact, in equity, in conscience or in morals; that plaintiff has come into equity without clean hands and cannot recover; (2) that plaintiff is and always has been sane and bound by all her acts and doings, and that the evidence abundantly proves this; (3) that the divorce to Emanuel Friend was granted by a court of competent jurisdiction after a full trial at which both parties were present in person and by their respective solicitors, is valid, never appealed from, and is not subject to collateral attack; (4) that the antenuptial agreement made between Emanuel Friend and Magdalen Friend was a valid agreement, entered into knowingly by plaintiff; that the plaintiff waived and relinquished all rights under it at the time of her divorce by the acceptance of the decree of divorce and the amount awarded her thereby, and of the benefits of the divorce, and that said agreement and the plaintiff's rights thereunder have been terminated; (5) that plaintiff, according to the allegations of her complaint, having regained her sanity on or about January 15, 1939, learned at some time between January 15, 1939, and July 10, 1939, of the death of Emanuel Friend, and notwithstanding this knowledge continued to live and cohabit with George H. J. Langskov for some time after July 10, 1939, and until before the filing of the complaint, and is estopped to maintain this action and is guilty of laches in not earlier bringing this action; (6) that plaintiff is estopped by the acceptance of the benefits of the divorce decree, and all her subsequent conduct to maintain the action; (7) that plaintiff comprehended and understood all her acts and doings and understood that the decree of divorce had been entered and that all property matters between her and Emanuel Friend had been adjusted, determined, comprehended; that she understood that she was married to George H. J. Langskov; (8) that this case is from its inception a fraud on the court and without merit in equity, conscience or fact; and (9) that the overwhelming weight of the evidence sustains the decree of the trial court which found that the plaintiff was and is sane; that the decree obtained by Emanuel Friend from her was valid, that her subsequent marriage to Langskov was valid, and that there is no equity in her case.

The first criticism leveled at the instant decree is that the Chancellor should have found that the decree of divorce entered December 13, 1933, finding Magdalen guilty of wilful desertion, was and is a void decree; that such decree being void for lack of jurisdiction of the court to enter it, may be attacked at any time in any manner and by any person affected thereby; and that the lack of jurisdiction of the court to enter the decree can be shown from the record itself or by facts outside the record. Defendants answer the criticism by asserting that the decree of divorce entered by the Superior Court is a valid and subsisting decree; that the Superior Court has jurisdiction in divorce cases; that the decree was not appealed from and is not subject to collateral attack; and that the decree is not subject to attack in this proceeding, which is in the nature of a bill to review a decree by a court of competent jurisdiction. On August 25, 1933, Magdalen Friend filed a bill for separate maintenance in the Superior Court of Cook County against Emanuel Friend. On September 12, 1933, Emanuel answered, and on September 30, 1933, Magdalen filed a replication. Two hearings were had on the separate maintenance complaint during the months of October and November, 1933. On December 8, 1933, Emanuel Friend filed a bill for divorce in the Superior Court in which he charged his wife with desertion from October 27, 1932, to and including October 27, 1933. On the day the bill for divorce was filed, Magdalen filed an answer denying that she had deserted him. The divorce complaint came on for hearing on December 13, 1933, and a decree of divorce was entered. The ground for allowing the divorce was that on October 27, 1932, Magdalen wilfully deserted and abandoned Emanuel without any reasonable cause, and persisted in such desertion for a space of one year and upwards prior to the filing of the bill of complaint. On the day the decree for divorce was entered, namely, December 13, 1933, there was filed in the separate maintenance proceeding a stipulation that such case might be dismissed,...