Grove v. Willard

• Decision Date: 23 October 1917
• Docket Number: No. 11532.,11532.
• Citation: 280 Ill. 247,117 N.E. 489
• Parties: GROVE et al. v. WILLARD et al.
• Court: Illinois Supreme Court

280 Ill. 247

117 N.E. 489

GROVE et al.

v.WILLARD et al.

No. 11532.

Supreme Court of Illinois.

Oct. 23, 1917.

Appeal from Circuit Court, Marshall County; John M. Niehaus, Judge.

Suit by Henry A. Grove and others against Belle Willard and others. From an adverse decree, certain of the defendants appeal. Reversed and remanded, with directions.W. R. Hunter, of Kankakee, and Evans & Evans, of Peoria, for appellants.

Barnes, Magoon & Black, of Lacon, for appellees.

DUNCAN, J.

Melchi Grove, of Marshall county, executed his will on April 13, 1881, and died May 7, 1881, seised in fee simple of the north half of the southwest quarter and the north half of the southeast quarter of section 19, town 12 north, range 8 east, of the fourth principal meridian, 152.21 acres. He left surviving him his widow, Amelia Grove, and Henry A. Grove, John E. Grove, Sheridan Grove, Clara M. Lapsly, Belle Grove (now Belle Willard), and Shirley Ann Grove, his only children and heirs at law. His will was probated in the probate court of Marshall county June 3, 1881, and provided as follows:

‘First-I will, order and direct that all my personal property and real estate shall be held and controlled by my beloved wife, Amelia Grove, and that she shall have full power, after my decease, to sell or dispose of any or all of it as she shall think for the best interest of herself and family, and upon the sale of my personal property and my real estate my said wife, Amelia Grove, shall divide the proceeds of such sale in the following manner, towit: I will and bequeath to my daughter Clara M. Lapsly $1500; I will and bequeath to my daughter Belle Grove $1500, one good bedstead and bedding; I will and bequeath to my daughter Shirley Ann Grove $1500, one good bedstead and bedding; I will and bequeath to my son Sheridan Grove $1500, one good bedstead and bedding; I will and bequeath to my two eldest sons, John E. Grove and Henry A. Grove, $15 each, for I consider that I have already paid John and Henry more money than the rest of my heirs will get out of my estate.

‘Second-When the several bequests are paid as provided for, then I order, will and direct that any surplus out of my estate shall be divided equally by my executor between my daughters, Clara M. Lapsly, Belle Grove, Shirley Ann Grove, and my son Sheridan Grove.

‘And lastly-I make, constitute and appoint my wife, Amelia Grove, to be my sole executor of this my last will and testament, and that she shall not be required to give bonds, and hereby revoking all former wills by me made.’

The said real estate was subject to a mortgage for $5,000, dated February 28, 1879, securing five notes for $1,000 each, due two, three, four, five, and six years from date of the mortgage, with 10 per cent. interest from date. The widow never qualified as executrix under said will, and no letters testamentary ever issued to any one. The testator left only sufficient personal property to pay his debts, other than said mortgage debt. The widow, while in possession of the land, paid the unpaid portion of the mortgage debt, to wit, $3,000, and interest to June 23, 1903, out of her personal and individual funds and property derived from accumulations from the farm, and obtained from the trustees in the trust deed a release deed releasing the lien of the said trust deed, which she caused to be recorded. She executed a will March 28, 1910, reciting and providing as follows:

‘The property that I have accumulated since my husband's decease by industry and economy, having a just and legal right to dispose of it as I think for the best interest of my family, I give and bequeath to my sons John Grove and Henry Grove $1000 each.

‘And lastly, I give and bequeath all the rest, residue and remainder of my personal estate, goods and chattels, of what nature or kind soever, to my children, to be divided equally between them, share and share alike, except my two granddaughtersone-half share each, which would have been their mother's portion if she had been living.’

The widow died testate November 3, 1914, leaving her surviving Henry A. Grove and Sheridan Grove, her sons, Belle Willard, her daughter, and the children of John E. Grove, deceased, and of Clara M. Lapsly, deceased, her grandchildren, as her only heirs at law. Shirley Ann Grove died intestate July 4, 1887, leaving no husband, but leaving her mother, Amelia Grove, and her brothers and sisters aforesaid, as her only heirs at law. Clara M. Lapsly died intestate in 1888, leaving surviving her her husband, David Lapsly, and Valena Gasfield and Zella Mashino, her daughters and only heirs. John E. Grove died intestate in 1911, leaving surviving him Rebecca Grove, his widow, and Lorena Barrus, Althea Grove, Madison Grove, Bertha Jennings, and Gertrude Brundage, his children and only heirs. Sheridan Grove and wife executed a trust deed to John I. Thompson on February 9, 1909, securing two notes of $500 each, which are unpaid, said trust deed covering or purporting to cover his undivided interest in said real estate. Stephen Willard was in possession of the said real estate as a tenant under a verbal lease from Amelia Grove expiring March 1, 1915. Amelia Grove retained possession of the land from the death of her husband up to her death without ever having sold the land or any part thereof or having paid any of the legacies mentioned in the will of Melchi Grove. Her said will was duly probated in the county court of Marshall county, and Robert Turnbull, executor named in the will, is still acting as executor thereof. There was no administration, or necessity therefor, of the estates of John E. Grove and Shirley Ann Grove, there being no unpaid debts or claims against their estates.

Appellees Henry A. Grove, Rebecca Grove, Madison Grove, Lorena Barrus, Althea Grove, and Bertha Jennings, filed their bill for partition in the circuit court of said county, alleging the foregoing facts and making all the rest of the heirs of Melchi Grove and Amelia Grove, her executor, Robert Turnbull, and David Lapsly, Stephen Willard, and John I. Thompson, trustee, parties defendant. The bill charges that by reason of the fact that Amelia Grove, ‘the life tenant,’ failed to perform the ‘discretionary trust’ and power given her under the will of Melchi Grove and to exercise the discretion given her to sell said real estate, and because of the insufficiency of the personal estate to pay the said legacies, and the said legacies not having been made a lien or charge on said real estate or any part thereof, the said legacies have lapsed or failed, and that the fee title, both legal and equitable, in said real estate vested by the laws of descent in the heirs at law of Melchi Grove, deceased; that the said heirs at law of Shirley Ann Grove, Clara M. Lapsly, and John E. Grove, deceased, inherited their respective shares as real estate, and that the undivided share of Sheridan Grove is subject to the trust deed made to John I. Thompson, trustee, and that the undivided two-sevenths share of Shirley Ann Grove, deceased, passed by inheritance to Amelia Grove and her heirs as real estate, the same not being disposed of by the will of Amelia Grove. The respective shares of the various parties are correctly set forth in the bill if the theory of the bill is correct, including the dower interest of Rebecca Grove and David Lapsly.

Sheridan Grove, Belle Willard, and Stephen Willard filed a joint and several answer to said bill, admitting all the foregoing facts except as to the existence and lien of said mortgage on the real estate executed by Melchi Grove, but they admit that it was paid of as alleged in the bill, if it ever was executed. They insist by their answer that it was made the duty of Amelia Grove by the will of Melchi Grove, as trustee, to sell the said premises and with the proceeds pay the said legacies mentioned in the said will and to divide the remainder thereof among the residuary legatees named in the will, and that no part of said real estate descended to the heirs of Melchi Grove as real estate, and that a trustee should be appointed by the court to sell the real estate and divide the proceeds as personal property among the said legatees and their heirs.

A general and special demurrer was filed to the bill by David Lapsly, Valena Gasfield, and Zella Mashino, alleging specially that the power given to Amelia Grove to sell the real estate is mandatory and not discretionary; that the interests of the parties are not correctly set forth in the bill, and that the fee-simple title to the land did not vest in the heirs at law of Melchi Grove, deceased.

Sheridan Grove, Belle Willard, and Stephen Willard also filed a cross-bill, alleging the same facts set forth in the original bill, and made, in substance, the same claim by their cross-bill as set forth in their said answer. The prayer in their cross-bill is that all the parties to the cross-bill, who are all the parties to the original bill except themselves, be required to answer the bill without oath, and that the court appoint a trustee to make sale of all of said premises and with the proceeds thereof pay the special legacies and divide the remainder thereof among the residuary legatees and the heirs of said special and residuary legatees, treating the real estate as personal property from and after the date of the death of the testator, Melchi Grove, the distributive share of Sheridan Grove to be paid subject to the trust deed executed to John I. Thompson.

The complainants in the original bill filed a joint general and special demurrer to said cross-bill, alleging specially, in substance, that the interests of the parties are not correctly set forth in the cross-bill; that the fee-simple title to said...