Heuer v. Heuer (In re Heuer's Estate)

• Decision Date: 19 January 1949
• Docket Number: No. 30816.,30816.
• Citation: 402 Ill. 238,83 N.E.2d 568
• Parties: In re HEUER'S ESTATE. HEUER v. HEUER.
• Court: Illinois Supreme Court

402 Ill. 238

83 N.E.2d 568

In re HEUER'S ESTATE.HEUER

v.HEUER.

No. 30816.

Supreme Court of Illinois.

Jan. 19, 1949.

Appeal from Circuit Court, Cook County; William V. Brothers, judge.

Proceeding in the matter of the estate of Arthur Heuer, deceased, by Fred W. Heuer and others against Harriet S. Heuer, administratrix, to have certain property inventoried as real estate and proceeds of sale thereof distributed under the rules of descent. From an order of the circuit court denying relief on appeal from an order of the probate court, petitioners appeal.

Cause transferred to the Appellate Court.

Paul W. Schroeder, of Chicago, for appellants.

Hansen & Towel, of Chicago (Roland Towle, of Chicago, of counsel), for appellee.

CRAMPTON, Justice.

Appellants seek a review of an order on appeal to the circuit court of Cook County from an order of the probate court of said county denying the prayer of a petition by appellants to have certain property inventoried as real estate, and the proceeds of the sale thereof distributed under the rules of descent.

On September 30, 1946, the deceased, Arthur Heuer, and Harriet S. Heuer, his wife, executed an offer of sale of certain land therein described to Chicago Housing Authority upon certain terms and conditions. On November 22, 1946, the said Authority accepted said offer of sale. On April 9, 1947, Arthur Heuer died and the widow, Harriet S. Heuer, appellee, was appointed administratrix, and on June 20, 1947, an inventory was filed and approved listing the property in question aspersonal property. No part of the purchase price was paid prior to the death of decedent. On June 20, 1947, the administratrix also filed in the probate court a petition for authority to execute a conveyance to the Chicago Housing Authority and named as parties, inter alia, the appellants, brothers and sisters of decedent, as heirs-at-law. Due notice of the filing of this petition was given, and on July 22, 1947, a decree was entered by the probate court directing the administratrix to execute and deliver her deed to the authority upon receipt of $35,000 less prorations, the amount stipulated and provided for in the contract. None of the appellants appeared at the hearing pursuant to which the decree was entered, and the same was taken as confessed against them. No objections were filed to, no motion made to vacate, nor appeal taken from, the decree authorizing issuance of the deed, and the same was a final decree and stands in full force and effect.

Thereafter on July 23, 1947, the administratrix executed and issued her deed and received from the Authority the sum of $34,369.89 in full payment for the property.

On November 6, 1947, more than three months after the entry of the decree, all brothers and sisters of decedent, appellants here, filed a petition in the probate court requesting that additional bond be filed, covering the purchase price paid; and stating that the Chicago Housing Authority was in default in that the time for closing had expired under the terms of the contract; that said offer to sell was an unilateral contract only enforceable by the Authority and not by decedent; that there was no equitable conversion; and that the property should have been inventoried as real property and the proceeds distributed in accordance with the rules of descent. To this petition the administratrix filed an answer setting forth that no motion to vacate the decree was made, that no appeal was taken therefrom, and that the relief asked in the petition is barred by said decree. The court ordered additional bond be filed but denied the other relief prayed. An appeal from this order was taken to the circuit court of Cook County, a hearing had de novo, and in substance a similar order entered. An appeal from this latter order is taken directly here upon the theory a freehold is involved.

Appellants contend there was no equitable conversion under the facts presented and rely upon the last paragraph of page 1 of the offer of sale which reads: ‘Notwithstanding the prior exercise of this offer the authority in lieu of completing the purchase of said premises may, at any time prior to closing, proceed to acquire the same by condemnation.’ They assert this clause leaves the option open...