McCarthy v. McCarthy

• Decision Date: 02 April 1956
• Docket Number: Gen. No. 46726
• Citation: 9 Ill.App.2d 462,133 N.E.2d 763
• Parties: Earl C. McCARTHY, Plaintiff below, Appellant and Cross Appellee, v. Edna B. McCARTHY, Defendant below, Appellee and Cross Appellant, La Salle National Bank, a corporation, Trustee, La Salle National Bank, a corporation, Administrator with the Will Annexed of the Estate of Agnes Schmerker, deceased, Evelyn Freeman, Richard B. Freeman, George Schumacher, Frances Schumacher, Henry Schumacher, Hylda Schumacher, Mary O'Connell, William C. O'Connell, Lucille Schumacher, Virginia Struckmeyer, Lester C. Struckmeyer, Marguerite Stevenson, R. Maxwell Stevenson, Earl E. Schumacher and Dorothy Schumacher, Defendants below, Appellees and Cross Appellees.
• Court: United States Appellate Court of Illinois

Page 763

133 N.E.2d 763

9 Ill.App.2d 462

Earl C. McCARTHY, Plaintiff below, Appellant and Cross Appellee, v. Edna B. McCARTHY, Defendant below, Appellee and Cross Appellant La Salle National Bank, a corporation, Trustee, La Salle National Bank, a corporation, Administrator with the Will Annexed of the Estate of Agnes Schmerker, deceased, Evelyn Freeman, Richard B. Freeman, George Schumacher, Frances Schumacher, Henry Schumacher, Hylda Schumacher, Mary O'Connell, William C. O'Connell, Lucille Schumacher Virginia Struckmeyer, Lester C. Struckmeyer, Marguerite Stevenson, R. Maxwell Stevenson, Earl E. Schumacher and Dorothy Schumacher, Defendants below, Appellees and Cross Appellees.

Gen. No. 46726.

Appellate Court of Illinois, First District, First Division.

April 2, 1956.

Rehearing Denied April 16, 1956.

Luther M. Lewis, Chicago, for Edna B. McCarthy, defendant-appellee and cross-appellant.

Curtis, Friedman & Marks, Chicago, for defendants-appellees and cross-appellees Louis David Friedman, Chicago, of counsel.

Loesch, Scofield & Burke, Chicago, for Earl C. McCarthy, plaintiff and cross-appellee.

BURKE, Judge.

Agnes Schmerker, an elderly widow, died at Chicago on December 2, 1952. Her nearest kin were brothers, sisters, nephews and nieces, none of whom are residents of Illinois. She resided in improved real estate owned by her in fee simple at the northeast corner of Wellington Street and Broadway in Chicago. On September 1, 1949, she and a straw party executed deeds which vested title to the real estate in her and Earl C. McCarthy in joint tenancy with the right of survivorship. On May 4, 1950, she executed a last will, making a few bequests including the sum of $1,500 to Shirley Mae Kastman, the stepdaughter of Earl C. McCarthy. The residue of the estate was devised to Earl C. McCarthy, who is referred to in the will as 'my good friend and counsellor.' He is a practing lawyer. The will also states that the testatrix made this devise because she deemed that McCarthy had not been adequately compensated for his professional services. She also named him as executor.

On May 2, 1951, a petition was filed in the Probate Court alleging that Agnes Schmerker was wholly incapable of managing her estate and was incompetent because of old age and imperfection or deterioration of mentality, and praying that a conservator of her estate be appointed. On May 31, 1951, the court adjudged her to be incompetent and issued letters of conservatorship to the La Salle National Bank. On June 22, 1951, pursuant to a petition, an order was entered in the Probate Court directing the conservator to file a complaint to set aside the deeds vesting title to the real estate in the incompetent and McCarthy as joint tenants and for other relief. Pursuant to that authority the conservator filed a complaint in the Circuit Court seeking to have the deeds canceled and declared void, to restrain the defendants therein from interfering with the possession of the real estate, directing them to reconvey the real estate to the incompetent and for an accounting.

On August 3, 1951, Earl C. McCarthy was examined under oath on a deposition taken on oral interrogatories in the complaint pending in the Circuit Court. Subsequent to the deposition hearings, the attorneys for the conservator and the next of kin of the incompetent engaged in conferences and negotiations with McCarthy with a view to settling all controversies between the estate of the incompetent and McCarthy. In the negotiations McCarthy stated there was due him the sum of $6,944.75 for monies advanced, legal and personal services rendered and for food and other items of a personal nature furnished by him on behalf of the incompetent during the period of approximately three years. The negotiations resulted in an agreement between McCarthy, the conservator and the family of the incompetent, acting through their attorneys. An order entered by the Probate Court on November 21, 1951, provided, among other things, that the conservator obtain from McCarthy a quitclaim deed to the real estate, a renunciation of his interest in the estate of Agnes Schmerker, his resignation as executor and the execution and delivery of various documents. The order then provided that upon acceptance of the documents the conservator be authorized and directed to pay McCarthy the sum of $7,500. The final provision of the order was that the quitclaim deed be recorded, a report of title obtained, and when title be found good in Agnes Schmerker, the conservator issue to McCarthy a stipulation to dismiss the cause pending in the Circuit Court and a stipulation to dismiss a citation proceeding against him pending in the Probate Court. McCarthy and his wife executed their quitclaim deed dated November 20, 1951, to Agnes Schmerker and delivered it on November 21, 1951. McCarthy executed and delivered his renunciation on November 21, 1951, in which he renounced all interest which he may have in and to the estate of Agnes Schmerker upon her decease by reason of the provisions of her will dated May 4, 1950; declined to accept anything under the will; discharged the estate of any claim which might at any time afterwards accrue to him by reason of the will; and agreed to leave the residuary estate to descend pursuant to law to the parties entitled thereto free from any claim of his under any provision of the will for his benefit. McCarthy received a check from the conservator for $7,500 in consideration for the delivery of the deed, the renunciation and other documents. Agnes Schmerker died on December 2, 1952.

On November 18, 1953, almost a year after the death of Agnes Schmerker, McCarthy and his wife conveyed their interest in the real estate to a nominee, who in turn conveyed an undivided one-half interest to McCarthy and an undivided one-half interest to Mrs. McCarthy. On November 23, 1953, McCarthy filed a complaint in the Superior Court alleging that he and his wife were the owners as equal tenants in common of the real estate and prayed the entry of a decree for partition thereof. The complaint alleged that he acquired title thereto as residuary devisee under the will of Agnes Schmerker and conveyed a one-half interest therein to his wife; that in the lifetime of Agnes Schmerker and at a time when a conservator had been appointed for her, plaintiff, after a certain order had been entered in the Probate Court in the estate of the incompetent, at the request of the attorney for the conservator and unknown to the testatrix, executed and delivered to the attorney for the conservator a written document in the nature of a renunciation of his expectancy in the estate of Agnes Schmerker, claiming 'at said time' that said renunciation was void and of no valid force or effect, for a consideration of $555.25 and that the value of the real estate was $45,000; that the renunciation was void, or in the alternative voidable; that he thereby renounced same, or in the alternative, that under a proper construction of the renunciation he did not thereby renounce the right to take the real estate under the will.

Edna B. McCarthy filed an answer admitting the allegations of fact in the complaint and filed a counterclaim in which she adopted the allegations of the complaint. She also alleged that she owned a one-half interest in the real estate and that on the date of the death of the testatrix Earl C McCarthy was the owner of a legal, or in the alternative an equitable, estate in the real estate, and hence title to the real estate vested in him and under the law she has an inchoate right of dower in the real estate, and that even if the renunciation by her husband be effective as to him, he had no power to renounce her inchoate right of dower. The bank, as administrator with the will annexed of the estate of Agnes Schmerker, deceased, and as trustee, filed its seven-point motion to dismiss the complaint. Points one to six of the motion were presented under Section 45 of the Civil Practice Act, Ill.Rev.Stat.1953, c. 110, § 169. The seventh point is in the nature of a plea of res adjudicata, in support of which the bank attached an affidavit, which in turn had attached to it a copy of an order entered in the Probate Court on March 9, 1953. The affidavit states that the complaint for relief had been previously adjudicated by an order of the Probate Court entered on March 9, 1953, following a motion by plaintiff herein that he be notified of all activities in that estate; that the Probate Court considered the claim of plaintiff and denied him leave to...