Mayer v. McCracken

• Decision Date: 29 June 1910
• Citation: 245 Ill. 551,92 N.E. 355
• Parties: MAYER v. McCRACKEN et al.
• Court: Illinois Supreme Court

245 Ill. 551

92 N.E. 355

MAYER

v.McCRACKEN et al.

Supreme Court of Illinois.

June 29, 1910.

Appeal from Superior Court, Cook County; Farlin Q. Ball, Judge.

Consolidated cases between Veronicka Mayer and John McCracken and others. From a decree in favor of the former, the latter appeal. Reversed in part and remanded, with directions.

William H. Barnum, for appellants.

John L. Bolen (Park Phipps, of counsel), for appellee.

John B. Mayer, a resident of Chicago, died June 3, 1892, leaving, him surviving, his widow, Veronicka Mayer, and his daughter, Anna Mayer, as his only heirs at law. He left a will, which was on June 20, 1892, admitted to probate by the probate court of Cook county. The first clause of his will directed the payment of his debts and funeral expenses. The second clause devised and bequeathed to his wife all real and personal property except the real estate specifically mentioned in the subsequent clauses. The third clause was as follows: ‘I give, devise and bequeath unto my beloved daughter, Anna Mayer, the property situated and known as No. 147 Center street, in the city of Chicago, county of Cook and state of Illinois, her heirs and assigns forever.’ The fourth clause devised to his wife, her heirs and assigns, forever, the property known as No. 149 Center street. By the fifth clause he directed his executrix to sell certain real estate known as No. 445 Wells street, in the city of Chicago, and out of the proceeds of sale to pay all his debts, and to divide the balance, if any, equally between his wife and daughter. The sixth clause directed the executrix to receive $2,000 upon a policy of insurance, to expend not to exceed $500 thereof for a burial lot and a monument, and to divide the remaining $1,500 equally between his wife and daughter. The seventh clause provided that upon the death of his wife all property, real and personal, bequeathed to her by the will should belong to his daughter, Anna Mayer, her heirs and assigns, forever. The eighth clause was as follows: ‘I order and direct that should my beloved daughter, Anna Mayer, die before my beloved wife, Veronicka Mayer, then all the property, real or personal, and effects of every name and nature, which I now bequeath to her, shall belong to my beloved wife, Veronicka Mayer, her heirs and assigns forever, providing that if she is married and has children, then the estate shall belong to her children and my beloved wife, Veronicka Mayer, shall be their guardian.’ The ninth and last clause nominated his wife executrix of the will.

Letters testamentary were issued to Veronicka Mayer by the probate court of Cook county, and on January 16, 1895, the executrix made final settlement of the estate and was discharged. Thereafter, on April 2, 1895, Veronicka Mayer and Anna Mayer entered into a contract with Clarence Buckingham, who was acting for the Northwestern Elevated Railroad Company, by which they agreed to sell to Buckingham the premises at 147 and 149 Center street for $26,500. A cash payment of $2,000 was made at the time of the execution of the contract, and the balance was, by the terms thereof, to be paid upon the delivery of a deed. At the time this contract was made, a suit by the railroad company against Veronicka Mayer and Anna Mayer to condemn the premises at 147 Center street was pending in the superior court of Cook county. On May 23, 1895, an additional payment of $12,500 was made upon the contract, and Veronicka Mayer and Anna Mayer thereupon on that date executed and delivered to Buckingham a deed for the premises at 149 Center street. The condemnation suit proceeded to judgment, and on June 21, 1895, the sum of $11,918.50 was awarded as compensation for the premises, and the railroad company was ordered to pay that amount to the county treasurer of Cook county for the benefit of the owners and parties interested, which payment was made to the county treasurer on the same day.

On June 28, 1895, Anna Mayer filed a bill in the superior court of Cook county against Veronicka Mayer, the Northwestern Elevated Railroad Company, and the county treasurer of Cook county, alleging the death and heirship of John B. Mayer, setting forth his will; alleging the condemnation by the railroad company of the premises at 147 Center street and the payment to the county treasurer of the sum awarded as compensation therefor, and praying that the will of John B. Mayer be construed; that Veronicka Mayer or some suitable person be appointed trustee of the money which had been paid to the county treasurer by the railroad company for the benefit of the owners of the property at 147 Center street, and that such trustee be decreed to hold such funds in trust for the benefit of such person or persons as may be now or hereafter entitled to the same or the income thereof, and that the county treasurer be required to pay over to such trustee the money paid to him by the railroad company, as aforesaid. All the defendants answered the bill, admitting the material allegations thereof, and the right of the complainant to the relief sought by her. On the same day, June 28th, upon the written consent of all the parties to the suit, the superior court entered a decree in said cause, finding that the will of John B. Mayer provided, among other things, that the property at 147 Center street upon his death should belong to Anna Mayer and her heirs and assigns, forever, subject to the condition that should the said Anna Mayer die before Veronicka Mayer, then the said property should belong to VeronickaMayer, her heirs and assigns, forever, provided that if she (meaning Anna Mayer) should marry and have children and die before the death of Veronicka Mayer, then the said property should belong to such children. The decree appointed Veronicka Mayer trustee of the money which had been paid to the county treasurer by the railroad company, amounting to $11,918.50, and ordered the county treasurer to pay over to her, as such trustee, said sum of money for the following purposes: First, to pay the costs of suit; and, second to invest and reinvest the remainder thereof in good interest-bearing securities, and to pay over to Anna Mayer, at least once in each year during the lifetime of the latter, the income derived from the same. The decree further directed that if Anna Mayer should not survive Veronicka Mayer, then said sum of money should belong absolutely to Veronicka Mayer, her heirs and assigns, forever, unless Anna Mayer should in the meantime marry and have children, in which event, if Anna Mayer should not survive her mother, said sum should belong to the children of Anna Mayer, if any, but if Anna Mayer should survive her mother, then the balance of said sum remaining in the hands of Veronicka Mayer at the time of her death should belong absolutely to Anna Mayer, her heirs and assigns, forever.

On June 29, 1895, Veronicka Mayer and Anna Mayer executed and delivered to Buckingham a warranty deed to the premises at 147 Center street for the expressed consideration of $12,500. The county treasurer indorsed the check for $11,918.50, which he had received from the railroad company, to Veronicka Mayer, trustee. The only other indorsement upon that check is that of Veronicka Mayer, trustee. On June 1, 1895, said check was presented to the Metropolitan Trust and Savings Bank of Chicago, and there was therewith purchased from the bank two notes secured by real estate mortgages, one for $10,000, with $15 accrued interest, and the other for $1,700, with $21 accruedinterest. The balance of the proceeds of the check was paid in cash but it does not appear to whom such payment was made, other than the presumption arising from the indorsements on the check that the money was paid to Veronicka Mayer. Anna Mayer, however, afterwards collected the interest on these notes, and when payments were made upon principal they were made to Anna Mayer, and were usually used by her in the purchase of other notes from the bank. The account kept by the bank of these transactions was in the name of Anna Mayer.

On July 14, 1903, Anna Mayer was married to John McCracken. On March 29, 1904, she resold to the said bank a note for $1,000, receiving the cash therefor, and on the same day purchased a house and lot on Burling street, in Chicago, for $4,500, and received a deed therefor, paying $1,000 in cash, and giving seven promissory notes for $500 each, together with a trust deed on the premises, to secure the balance of the purchase price. She and her husband and her mother moved into this house and continued to occupy it as a residence until her death, which occurred May 12, 1904. She died without issue, and left, her surviving, her husband and her mother as her only heirs at law. They continued to reside upon said premises until some time in February, 1906.

A few weeks after the death of Anna McCracken her husband suggested to Veronicka Mayer that it would be necessary to have administration upon her estate, and suggested the appointment of Thomas C. Dennehy as administrator, and the employment of Patrick McHugh as attorney to represent the estate. Mrs. Mayer had only met Dennehy once, at the funeral of her daughter, and had no acquaintance with McHugh. She testified upon the trial of this cause that when McCracken first spoke to her about the appointment of an administrator he told her that she would have to surrender all the notes and mortgages to the probate court, and that she replied that she did not think she had to give them up because it was her understanding that under her husband's will they belonged to her, but that McCracken insisted that she would have to give them up or get into trouble; that she then said that she did not want to get into trouble and would give them up. McCracken denied this conversation about the notes and mortgages. The notes in question, as well as securities belonging to Mrs. Mayer, were then, and had been for many years, kept in a safety...