Leininger v. Reichle

• Decision Date: 18 June 1925
• Docket Number: No. 16728.,16728.
• Citation: 148 N.E. 384,317 Ill. 625
• Parties: LEININGER et al. v. REICHLE et al.
• Court: Illinois Supreme Court

317 Ill. 625

148 N.E. 384

LEININGER et al.

v.REICHLE et al.

No. 16728.

Supreme Court of Illinois.

June 18, 1925.

Bill by Johanna Mable Leininger and others against Walter Reichle and others. From an adverse decree, defendant Timothy T. Beach, who interposed a cross-bill, appeals.

Affirmed.Appeal from Circuit Court, Logan County; Edward Barry, Judge.

Harold F. Trapp, of Lincoln, for appellant.

McCormick & Murphy, of Lincoln (James E. Miller, of Lincoln, guardian ad litem), for appellees.

DUNN, C. J.

This appeal is from a decree of the circuit court of Logan county ordering the partition of the east half of the northeast quarter of section 24, town 20 north, range 2 west, of the third principal meridian, in that county. The contest is between the grandchildren of Jeremiah M. Byan, who died on May 26, 1896, and a remote grantee claiming through a sale by Ryan's executor under an order of the county court of Logan county for the payment of the debts of the estate.

Ryan owned the land in controversy and other land, and left a will executed on May 2, 1896, by which, after providing for the payment of his debts and funeral expenses and a legacy of $300 to a church, he disposed of all his property to his son, James, and his five daughters, who were his only heirs. Thomas Ryan, his son-in-law was named as executor, and the testator directed that the share of any of his children who died without leaving children should descend to his other children. The will recited the existence of two mortgages, for the aggregate sum of $3,000, on a part of the land devised, and directed that the mortgages be paid off out of his personal estate and that the children to whom the lands were devised should receive the same free and clear of mortgages. The testator's four older children were adults, and he devised to each of them 80 acres of land for life, with remainder to his or her children, and each devise was followed by the proviso that the devisee should pay to the testator's executor the sum of $1,500 within three years after the testator's death, and the land should be chargeable with the payment of that amount. The two younger daughters were minors, and the testator devised to Johanna, the older of them, 50 acres of land for life with remainder to her children, charging the land with the payment of $1,000 in the same manner as the devises to the other children were charged. To the youngest daughter he devised 50 acres in fee, without any charge against it. The tract of 80 acres devised to the testator's daughter Mary Reichle was described in the will as the east half of the northeast quarter of section 24, town 20, range 4 west, of the third principal meridian, in Logan county, Ill. The testator did not own that tract, but he did own the east half of the northeast quarter of section 24, town 20, range 2, in Logan county.

The will was admitted to probate on May 29, 1896, and one week later, on June 6, the testator's children, including Johanna, who became of age on that day, but except the youngest, Ellen, who was still a minor, met in the office of A. D. Cadwallader, who had written the will, and quitclaim deeds were executed by all the others to Mary Reichle for her life, with remainder to her children for the east half of the northeast quarter of section 24, town 20 north, range 2 west. A like deed was made to each of the others of the land devised to them, respectively, which was executed by all the children except Ellen, the minor, and except the one who was grantee in the respective deeds. Cadwallader testified that there was an error in description of the piece of land, as he recollected it at the time he testified, that was given by the will to Mary Reichle, and this deed was made for the purpose of correcting that description. He believed the error was in the range, and he told them he could see no way except for the adults to make a quitclaim deed to Mary Reichle, and they signed it and he handed it to Jacob Reichle, Mary's husband, and told them all that the deed ought not to go on record until after the $1,500 provided for in the will to be paid by her for the land was paid, and until it was paid the deed would be of no force or effect. No objection was made by anybody to that arrangement, and nothing else was said. The tract of land in controversy was occupied and farmed at the time of the testator's death by his son-in-law, Jacob Reichle, as a tenant under a lease which expired in 1898.

The indebtedness of the estate exceeded the personal property, and in March, 1898, the executor filed a petition in the county court, alleging that the personal estate amounted to $1,043.53, and the debts allowed, together with legacies and claims to be allowed, amounted to $8,559.91, leaving a deficit of $7,516.38, as asked for an order of court directing the sale of the real estate to pay debts. The testator's children were all made defendants and all entered their appearance except Ellen, who was still a minor. She was served with process and a guardian ad litem was appointed for her. Mary Reichle had at that time three children: Johanna Mable (who is now Mrs. Leininger), Edith Marie (who is now Mrs. Schreiber), and Ralph Jacob. They were not made parties to the petition. A decree was entered for the sale of the real estate. An agreement was made among the children, including the executor, in regard to the sale, that each one should bid at the sale upon the tract devised to him or her an amount fixed by the executor, the aggregate amount of such bids being the amount required by the executor to cover the deficiency of the personal assets, and the land was bid in accordingly for those amounts; Mrs. Reichle bidding $2,088.58 for her 80. The sale was confirmed by the court and deeds were made by the executor accordingly. The amount of Mrs. Reichle's bid was paid by her husband, whose father signed his notes for part of the amount which he borrowed, and she conveyed the tract to her father-in-law, who conveyed it back to her husband. Reichle farmed the land, and he and his wife occupied the premises until her death, on December 3, 1912. A drainage district was organized including the land, and Reichle paid the assessment of $577. He also spent $1,500 in tiling the land, built additions to the house, and made other improvements. He painted his name on the barn in large letters and paid the taxes from the time he received the deed from his father until March 20, 1920. After the death of his wife he continued to occupy and farm the land the same as before. Besides the three children of Jacob and Mary Reichle born before the executor's sale, seven other children were born to them after the sale, one of whom died at 11 years of age, on February 6, 1911, before the mother's death, and another born on the day of her mother's death died on December 27, 1917, at the age of 5 years.

In the fall of 1919 Jacob Reichle entered into a contract to sell the 80 acres in question to Fred Ruenzi. Upon receiving the abstract of title, Ruenzi had it examined and was advised that the title was defective. He reported the fact that he had been so advised to Reichle, who asked him to go and see Timothy T. Beach, who was an able lawyer and had been until recently practicing for many years in Logan county. Ruenzi went with Reichle to see Beach, but Ruenzi was not satisfied about the title and declinedto go on with the purchase. Afterward Reichle and Beach entered into negotiations in regard to the land, which resulted in a contract by which Beach conveyed to Reichle 320 acres of land in Minnesota at $95 an acre and advanced him $1,600 to add to the house on the Minnesota land, and received a conveyance from Reichle of the 80-acre tract at $400 an acre, subject to a $5,000 mortgage given by Reichle to the Connecticut Mutual Life Insurance Company; Beach taking a mortgage from Reichle on the Minnesota land for the $5,000 difference due to him. These deeds were made on March 17, 1920.

On March 29, 1920, the three older children of Mary Reichle (Johanna Mable and Edith Marie, who had married and whose names were then Wranischar and Schreiber, respectively, and Ralph Jacob Reichle) filed a bill for the partition of the 80 acres in controversy, making the other children, who were all minors, as well as Beach and the Connecticut Mutual Life Insurance Company, parties defendant. The bill alleged, in addition to other things, that the proceedings for the sale of the real estate were for the purpose of depriving the remaindermen of their interest in the property, and in addition to a partition prayed also that the executor's deed to Mary Reichle, her deed to Jacob Reichle, Sr., and his deed to Jacob Reichle, Jr., as well as the latter's deed to Beach and the mortgage to the Connecticut Mutual Life Insurance Company, be set aside. Reichle inherited a portion of the interest in the land of his two children who died and which his deed conveyed to Beach, but the bill alleged that as to any other interests the deed was a cloud on the complainants' title, which should be removed. The mortgage for $5,000 was given to the Connecticut Mutual Life Insurance Company by Reichle and his wife shortly before her death, and the bill alleged that this mortgage also was a cloud on the complainants' title except as to the interests inherited from the two deceased children.

Beach answered the bill, alleging that Mary Reichle had no money with which to pay the $1,500 which was made a condition of the devise to her; that the description of the land in the devise could not be held to apply to the land in controversy; that she refused to accept the devise, and that the deed to her was not delivered; that the personal property was insufficient to pay the debts of the estate and it became necessary to sell real estate to pay them; that the proceedings for that purpose were regular and were not for the purpose of depriving the remaindermen of their interests in the real...