King v. King

• Decision Date: 17 April 1905
• Citation: 215 Ill. 100,74 N.E. 89
• Parties: KING v. KING et al.
• Court: Illinois Supreme Court

215 Ill. 100

74 N.E. 89

KING

v.KING et al.

Supreme Court of Illinois.

April 17, 1905.

Error to Circuit Court, La Salle county; H. M. Trimble, Judge.

Bill by Michael Noonan against Mary Agnes King and another, in which Gertrude King and others filed a cross-bill. Decree was entered directing the sale of the property, including the interests of cross-complainants, and defendant Mary Agnes King brings error. Affirmed.James R. Glass and Warren B. Wilson, for plaintiff in error.

Lester H. Strawn, for defendants in error.

This is a writ of error sued out from this court on November 23, 1904, for the purpose of reviewing a decree entered by the circuit court of La Salle county on November 1, 1899, and certain orders entered in pursuance of proceedings under said decree in December, 1899, and February and March, 1900.

The material facts are as follows:

On September 26, 1899, Michael Noonan filed a bill in the circuit court of La Salle county against the plaintiff in error, Mary Agnes King, and her husband, Fred R. King, to foreclose a mortgage executed by plaintiff in error and her husband upon the north half of the southwest quarter of section 29, township[215 Ill. 102]34 north, range 3 east of the third principal meridian, in La Salle county, to secure a judgment note for $2,000 executed by plaintiff in error and her said husband, payable to the order of Michael Noonan three years after date, with interest at 6 per cent. per annum after date, payable annually. In the mortgage Mary Agnes King (formerly Galvin) is described as the only child and heir at law and sole devisee of William H. Galvin, deceased. The mortgage recites that the mortgagors ‘mortgage and warrant’ to Michael Noonan, to secure said note, the property above described. The mortgage provides that, in case ‘of a breach of any of the covenants or agreements herein contained, then, and in such case, the whole of said principal sum and interest, secured by the said one promissory note in this mortgage mentioned, shall thereupon at the option of the said mortgagee, his heirs, executors, administrators, attorneys or assigns, become immediately due and payable; and this mortgage may be immediately foreclosed to pay the same by said mortgagee,’ etc. The parties made defendants to the foreclosure bill were plaintiff in error and her husband and their three minor children, Gertrude, Florence, and Harold King, and all the persons mentioned in the will of the said William H. Galvin, hereinafter referred to, and all the persons who would have been heirs of said William H. Galvin, deceased, had he died intestate, and had said plaintiff in error died without issue. Default was entered against all the adult defendants, including plaintiff in error and her husband, at the October term, 1899; and Lester H. Strawn was appointed guardian ad litem for the three minor children of plaintiff in error above named, and B. F. Brady was appointed guardian ad litem of two other minor defendants, to wit, William Galvin and Edward Galvin.

On October 12, 1899, the three minor children of plaintiff in error, to wit, Gertrude, Florence, and Harold King, by their guardian ad litem, Strawn, filed a cross-bill, making parties defendant thereto plaintiff in error and her husband, Michael Noonan, the minors, William Galvin and Edward Galvin, and all the other parties above referred to, who were defendants to the original bill. Michael Noonan filed an answer to the said cross-bill, and an answer was filed by the guardian ad litem of the minors, William and Edward Galvin, but default was taken against all the other defendants to the cross-bill, including plaintiff in error and her husband. The cross-bill set up the death of William H. Galvin, and his will, and the codicil thereto, and avers that the farm owned by said testator in the town of Wallese, in La Salle county, was the same as that described in the original bill as having been mortgaged to Michael Noonan. The cross-bill further alleges that William H. Galvin died testate on October 10, 1891, and that his will was admitted to probate in La Salle county on October 23, 1891. By the terms of the will, as set out in the cross-bill, the testator provided as follows: ‘First, I give, devise and bequeath unto my daughter, Mary A. Galvin [now Mary A. King, plaintiff in error], the farm owned by myself in the town of Wallese, county of La Salle, State of Illinoise. * * * Second. I further direct that my debts and necessary funeral expenses shall be paid from moneys now on deposit in the National City Bank of Ottawa, * * * the residue of such moneys to revert to my daughter M. A. Galvin; when she becumbs of age she will allso have place a cooping around her mother's grave out of some of money; and, in case of her death without ishure, then all of the above described property, real and personal, revert back to lawful heirs. * * * Fourth. And, in case of the death of dauther, and she left one or more children, then the property goes to them when of adge, and, in case no children, then property will be divided as follows, towit, to my sister, Elen Burk, for the benefit of her two sons Will and Ed Burk the one six of the intress in my father estate left by him to me. Also, to July Welch, my sister, for her sole benefit one thouserand dollars, $100.00. To my brother, Peter Galvin, for the benefit of his two sons, one thouserand dollars, $100.00, when they become of adge to be held in trust for them; to my brother, John Galvin, one thouserand dollars for the benefit of his son Bay Galvin wheh of adge; to my sister, Magie Galvin, five hundred dollars, $500.00, and, in case of her death without ishure, then it revert back to the lawful ayers. To my sister, Elen Burk, five hundred dollars, $500.00. To my niese, Mary McCabe, one hundred dollars, $100,00. Elisa and Allise McCabe each one hundred dollars, $100.00, to my neises Bridget and Mary Welch, one hundred dollars each $100 for their one ouse; to Mary E. Graham, my niese, one hundred dollars $100, and the balance of property to be divided among my brothers and sisters, share and share alike.’

Afterwards on July 2, 1890, the testator made a codicil to his will, in which he appointed Margaret Galvin, his sister, and one Thomas McLaughlin, ‘guardians over my daughter, Mary Agnes Galvin, to have charge of her, and her incume, and place to the best use for her benefit, until she becomes the adge of twenty-three years (23).’

The cross-bill further avers that Mary A. Galvin, daughter of William H. Galvin, was born October 30, 1875, and was married to Fred R. King on October 15, 1894; that cross-complainants, Gertrude King, four years old, Florence King, three years old, and Harold King, born August 30, 1899, were the only issue of said marriage; that William H. Galvin left no widow, but left Mary A. Galvin (now Mary A. King), his only child and heir at law; that he left no father or mother, but left certain brothers and sisters and their descendants, who are named in the bill. The cross-bill further avers that, under the will of William H. Galvin, Mary A. Galvin (now Mary A. King) became vested with a life estate only in the real estate described in the bill of Michael Noonan, and that, when Mary A. and Fred R. King made the mortgage to Noonan, said Mary A. King had only a life estate in the property, and that the remainder belonged to the cross-complainants, Gertrude, Florence, and Harold King, the children of Mary A. King. The cross-bill further alleges that Mary A. and Fred R. King have no other property, and no means to pay taxes on the property mortgaged, or to pay anything on the debt to Noonan; that the farm mortgaged is level and swampy, and cannot be cultivated, unless drained of its water; that it has no improvements except a fense, and that dilapidated; that it has no outlet for drainage; that it will be necessary, in order to drain it, to form a drainage district, or to join with the owners of adjoining farms and construct a large drainage canal at great expense; that cross-complainants are in danger of losing their entire interests unless the court will order the premises sold, and that part belonging to cross-complainants to be placed in the hands of a trustee for them; that Mary A. and Fred R. King have no means or income, or prospects of the same; that neither is engaged in employment or business, or earning anything; and that Fred R. King has no trade or occupation, but is simply living on the property of his wife, which is exhausted.

On November 1, 1899, the cause was heard on the original bill and answers and replications, and on the cross-bill and answers and replications, and also upon the evidence heard in open court; all of the adult defendants to the original bill having been defaulted, and all the adult defendants to the cross-bill having been defaulted, except Michael Noonan. On that day (November 1, 1899) the court rendered a decree in which it was recited as follows: ‘And the court, having heard the evidence in open court, and the arguments of counsel for their respective parties, and the court being now fully advised in the premises, doth find that the court has jurisdiction of the subject-matter and the parties in this cause; that both the complainant in the original bill and the complainants in the cross-bill are entitled to relief in a court of equity; that all the allegations in said cross-bill contained are true as therein stated.’ The decree then finds that, under the will of William H. Galvin, plaintiff in error became vested at the time of her father's death with an estate for and during the term of her natural life, and no more, in and to the mortgaged property, and that the remainder of said estate in said land was the property of the complainants in the cross-bill, Gertrude, Florence, and Harold King. The decree, after finding the facts in regard to the death of the testator, and the probate of his will, and the marriage of plaintiff in...