Kadish v. Lyon

• Decision Date: 23 October 1907
• Citation: 82 N.E. 194,229 Ill. 35
• Parties: KADISH et al. v. LYON.
• Court: Illinois Supreme Court

229 Ill. 35

82 N.E. 194

KADISH et al.

v.LYON.

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Superior Court, Cook County; Marcus Kavanagh, Judge.

Bill by Hiram B. Kadish and others against Thomas R. Lyon. From a decree dismissing the bill for want of equity, complainants bring error. Affirmed.

George F. Ort, for plaintiffs in error.

Charles L. Bartlett and Sherman C. Spitzer (Harrison B. Riley, of counsel), for defendant in error.

On October 7, 1902, Hiram B. Kadish, Clara L. Kadish, and Marion B. Kadish, plaintiffs in error, by their guardian, Hiram Barber, filed their bill in the superior court of Cook county against Thomas R. Lyon, defendant in error, for the purpose of ascertaining and establishing their interest in certain real estate in the city of Chicago, the title to which was in said Lyon, and for other relief. The following statement is taken is large part from that found in plaintiffs in error's brief and argument: The bill alleges: That complainants are infant children and heirs at law of Leopold P. Kadish, deceased. That on September 1, 1890, Kadish, in his lifetime, entered into a 99-year lease, in writing, with Mendell and others, the then owners of lots 7 and 8 in a certain block in a subdivision in the city of Chicago, Ill., reserving as rent $2,400 per year. That in said indenture it was, among other things, provided that said Kadish should, within one year from September 1, 1890, erect buildings upon said premises of the value of not less than $50,000. That to secure the agreement to erect said buildings Kadish was required to and did enter into a bond to the said lessors in the penal sum of $5,000. That said indenture contained a provision that said Kadish, his heirs or assigns, might acquire the full legal title to the said lots 7 and 8 in said indenture described, upon the payment of $40,000 at any time within 10 years after the date thereof, ‘and this agreement shall be considered a covenant running with the land and be binding upon the heirs and assigns of said lessors.’ That by reason of said provision Kadish became seised and possessed of a conditional fee in the said premises and lots. That Kadish began the erection of certain structures thereon, but departed this life at Chicago, intestate, on December 28, 1890, leaving, him surviving, his widow, Helen L. Kadish, and the complainants, his only heirs at law. That during his lifetime very little progress was made in the erection of said buildings. That the entire excavation for the foundations had not been made, nor had the major part of the foundations been completed. That complainants are not advised as to what, if any, contracts for the erection of said buildings were let by Kadish or by his authority during his lifetime, and show, upon information and belief, that if any contract had been let by him or by his authority during his lifetime the same did not involve an expenditure of more than $15,000.That only a small amount of work had been done on said premises at the time of the death of Kadish, and the value of said work did not exceed $5,000. That on January 8, 1891, Elbridge Hanecy, Edward Bertalot, and Helen L. Kadish were appointed administrators. That during the course of administration a large sum of money came into the hands of said Hanecy and Bertalot, as such administrators, to wit, more than $100,000, and complainants were, respectively, entitled to a share of this sum as the heirs at law of said Kadish, deceased. That said moneys so received by said administrators, Hanecy and Bertalot, were trust moneys in their hands, held by them for the following purposes only, to wit: First, payment of expenses of administration; second, payment of such claims as should be allowed against the estate by the probate court of Cook county, Ill.; third, for distribution among the several heirs at law of the said Kadish, deceased. That said Hanecy and Bertalot, as such administrators, during the year 1891, without any authority in law whatever, diverted and misapplied the same, to the extent of $90,000 and upwards, in and about the erection of said buildings. That the buildings comprise a four-story and basement brick and stone building situated on the west end of said lots, with a frontage of 100 feet on Wabash avenue and a depth of 48 feet, divided into stores below and 12 flats above, and a rear brick and stone building 134 feet deep by 92 feet wide, three stories high, entered by an inclosed passageway from the front of Wabash avenue. That Hanecy and Bertalot, immediately after their appointment as administrators, took possession of said premises and held possession and control thereof until on or about April 1, 1893, when such possession or control was surrendered by them to the said Helen L. Kadish and complainants, who thereupon entered into the possession and control of said premises and retained such possession and control until on or about July 1, 1902, when such possession was surrendered by them to the defendant, Lyon, the assignee of said Mendell and others, upon his demand therefor. That at the time of and during the progress of the erection of said buildings the said Mendell and others had notice and knowledge of the fact that said Hanecy and Bertalot, as such administrators, had taken possession of said premises and were improperly making use of the moneys held by them in trust, as...