McCartney v. Ridgway

• Decision Date: 11 October 1895
• Citation: 43 N.E. 826,160 Ill. 129
• Parties: McCARTNEY et al. v. RIDGWAY et al.
• Court: Illinois Supreme Court

160 Ill. 129

43 N.E. 826

McCARTNEY et al.

v.RIDGWAY et al.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Bill by Cornelia Peeples, a minor, by her next friend, Charles W. Perkins, against Thomas R. Reid, administrator of the estate of George H. Potter, deceased, and others, for an accounting, in which defendants Reid, administrator, and John F. McCartney, trustee, filed cross bills. From a judgment of the appellate court reversing a decree in favor of McCartney, trustee, and against the sureties on the bond of George H. Potter, deceased, as predecessor of McCartney, as trustee (57 Ill. App. 453), the latter appeals. Affirmed.J. H. Mulkey, F. A. Johnson, C. F. Beach, Jr., and S. P. Shope, for appellants.

Oliver & Showalter, for appellees.

This is a bill filed on February 26, 1890, by Cornelia Peeples, a minor, by her next friend, against Thomas R. Reid, of Gallatin county, Ill., administrator of the estate of George H. Potter, deceased, who died, intestate, on September 30, 1889, and who, in his lifetime, was a trustee under the agreements hereinafter set forth; John F. McCartney, of Massac county, appointed on October 31, 1889, as successor in trust to said Potter; the widow and children and grandchildren, hereinafter named, of Orval Pool, deceased; Thomas S. Ridgway, David Reid, Robert Reid, Henry O. Docker, and John M. Peeples, Jr., sureties upon the bond of said Potter, trustee, the said Henry O. Docker and John M. Peeples, Jr., being husbands of two of the daughters of said Orval Pool; and Harriet M. Peeples, executrix, and Thomas S. Ridgway, executor, of the will of John M. Peeples, Sr., or J. McKee Peeples, deceased, who died, testate, on December 22, 1878, and who, in his lifetime, was also one of the sureties upon the bond of said trustee. The bill charges, in general terms, that the trustee George H. Potter was guilty of negligence and mismanagement in his administration of the trust estate, and prays that an accounting be had, and that the amount of the liability of such of the defendants as are liable may be ascertained, and ordered to be paid over to the successor in trust of said Potter. It appears from the allegations of the bill and the evidence in the case that Orval Pool, of Gallatin county, died, testate, on June 30, 1871, leaving, him surviving, his widow, Madeline Pool, and four children,-one son, Marshall M. Pool, and three married daughters, to wit, Mary Pool Docker (wife of Henry O. Docker), Augusta M. Pool Townshend (wife of Richard W. Townshend, since deceased), and Ellen Pool Peeples (wife of John M. Peeples, Jr.). These four children were the only heirs at law of Orval Pool. At the death of Orval Pool, his daughter Mrs. Docker had four children, William, Guy, Henry, and Daisy; and, since his death, she has had one son, George, born November 19, 1874. At the death of said Orval, his daughter Mrs. Peeples had one child, Clarence, and, since his death, has had one daughter, the complainant, Cornelia, born November 11, 1875. The bill was answered by all the adult defendants, except the widow, Madeline Pool, and the son, Marshall M. Pool, against whom defaults were entered, and by the infant defendants, through their guardians ad litem. A cross bill was filed by Thomas R. Reid, administrator of Potter's estate, and a cross bill was also filed by McCartney, the successor in trust, and Ellen Pool Peeples and Mary Pool Docker. Several petitions were also filed by several of the parties. These cross bills and petitions were answered. A reference was taken to a master in chancery, who made an elaborate report upon the issues involved. The cause was heard upon exceptions to the master's report. On April 2, 1894, the circuit court rendered a decree against the sureties on the bond of George H. Potter, trustee, requiring them to pay to John F. McCartney, as trustee, succeeding Potter, who died insolvent, the sum of $19,795.24, with costs. Said sureties, except John M. Peeples, Jr., and Henry O. Docker, to wit, Thomas S. Ridgway, executor, and Harriet Peeples, executrix, of the estate of John McKee Peeples, deceased, and Thomas S. Ridgway, Robert Reid, and David Reid, took an appeal to the appellate court. The appellate court reversed the decree of the circuit court, and dismissed the bill as to the appellants there, who are the appellees here, to wit, the executor and executrix of the estate of John McKee Peeples, deceased, and Ridgway and the Reids. The present appeal is prosecuted from the judgment of the appellate court by John F. McCartney, trustee, Ellen P. Peeples, and Mary P. Docker.

The estate of Orval Pool is alleged in the bill to have been worth, at the time of his death, about $400,000. By his will, he devised lands worth about $9,041.33 to his daughters Mrs. Docker and Mrs. Peeples, for life, with remainder over to their children, and gave all the rest of his estate, real and personal, to his son, M. M. Pool, and his daughter Mrs. Townshend. Mrs. Docker and Mrs. Peeples claimed that the will was void, and demanded from the other devisees enough of the estate to equalize the shares of the four. M. M. Pool and Mrs. Townshend insisted that the will was valid, but proposeda settlement, and the following agreement, dated November 2, 1871, was entered into, to wit:

‘It is agreed between the parties hereto that the estate of Orval Pool, deceased, shall be divided upon the following basis, to wit:

‘(1) Equal division as near as may be of the entire estate, real and personal, of which Orval Pool died seised and possessed, between the four children of said Orval Pool, to wit, Marshall M. Pool, Augusta M. Pool Townshend, Mary Pool Docker, and Ellen Pool Peeples. The shares of the said Mary and Ellen shall be limited to them during their lifetime, and at their decease to descend to their children or descendants of children; and in case of the death of said Mary or Ellen, or both, so dying without children or descendants of children, then the share of said Mary and Ellen, or both, so dying without children or descendants of children, shall go in equal shares to the children of said Orval Pool, deceased, and their heirs. The lands and personalty heretofore devised to the said Mary and Ellen by the will of Orval Pool, deceased, are to be taken into consideration in equalizing the division of said estate, and the same to be deducted from the shares of said Mary and Ellen.

‘(2) The interest of the said Mary Pool Docker and Ellen Pool Peeples in the moneys, personal property, and proceeds of real estate that may be converted into money, as hereinafter provided, shall within a reasonable time, by a proper and suitable conveyance or conveyances, be conveyed and transferred to some suitable and responsible trustee, whose duty it shall be to keep the principal invested in United States interest-bearing bonds, or in some other profitable manner, and pay semiannually the accumulations and interest thereon to the said Mary Pool Docker and Ellen Pool Peeples, or their order, respectively, during their natural lives, the principal to be kept intact, and paid to their children or descendants of children, as hereinbefore provided, subject to the reversionaforesaid. A trustee shall be chosen by the parties to this agreement, whose duty it shall be to carry out and execute the trust hereby created, and shall enter into a good and sufficient bond, to be approved by the judge of the circuit court of Gallatin county, for the faithful performance of his duty as such trustee. Said bond shall be made payable to the parties to this agreement, for the use of all parties interested in the provisions of this agreement; and, if the parties hereto cannot agree upon the person who shall act as such trustee, then the said judge of said Gallatin circuit court shall appoint said trustee; and the said appointment and the approval of said bond may be made by him either in vacation or term time, as may be most convenient.

‘(3) Marshall M. Pool and Augusta M. Pool Townshend shall retain thirteen hundred and ten (1,310) shares of the stock of the Gallatin National Bank, and four hundred (400) shares of the said stock shall be conveyed to the trustee, aforesaid, for the use of the said Mary Pool Docker and Ellen Pool Peeples, subject to the limitations and conditions aforesaid; the interest of the said Mary Pool Docker and Ellen Pool Peeples in said bank stock to be equalized with the interest of the said Marshall M. Pool and Augusta M. Pool Townshend in said stock, as hereinafter provided.

‘(4) The trustee herein provided for shall have power, and it is made his duty, to sell and convert into money, as soon as the same can be conveniently done without sacrifice, so much of said lands and real estate, except the homestead, with the lands adjoining thereto, and real estate in Shawneetown, as may be necessary to equalize the interest of the said Mary Pool Docker and Ellen Pool Peeples, with the interest of the said Marshall M. Pool and Augusta M. Pool Townshend in the shares of said bank stock, which said sum of money so to be first raised shall be invested, and the interest thereon paid over, in the manner and upon the conditions and subject to the limitations as hereinbefore provided; and provided, further, if the proceeds of the sale of said lands shall not be sufficient to equalize the interest aforesaid in said bank stock, then the said Marshall M. Pool and Augusta M. Pool Townshend are to pay the deficit in money to the said trustee for the use of the said Mary Pool Docker and Ellen Pool Peeples, to be invested by him under the conditions and limitations aforesaid; and provided, further, that, until said real estate shall be converted by said trustee for the purpose above mentioned, it shall be the duty of said Marshall M. Pool and Augusta M. Pool Townshend to account for and pay over to said trustee one-half of the net rents and profits of the above-mentioned real...