McCarty v. McCarty

• Decision Date: 06 June 1934
• Docket Number: No. 22011.,22011.
• Citation: 191 N.E. 68,356 Ill. 559
• Parties: McCARTY v. McCARTY.
• Court: Illinois Supreme Court

356 Ill. 559

191 N.E. 68

McCARTY

v.McCARTY.

No. 22011.

Supreme Court of Illinois.

April 21, 1934.

Rehearing Denied June 6, 1934.

Error to Appellate Court, Third District, on Appeal from the Circuit Court, Scott County; Frank W. Burton, Judge.

Proceeding in forcible entry and detainer by Lee McCarty, executor, against Clyde McCarty. To review a judgment of the Appellate Court (270 Ill. App. 37), which reversed a judgment of the circuit court in favor of plaintiff, he brings certiorari.

Affirmed.

STONE, J., dissenting.

Bellatti, Samuell & Moriarty, of Jacksonville, for plaintiff in error.

Funk & McKeene, of Winchester, for defendant in error.

SHAW, Justice.

This is a review upon certiorari of a judgment of the Appellate Court for the Third District which reversed a judgment of the circuit court of Scott county in a proceeding in forcible entry and detainer.

The questions of fact and law out of which the controversy arises are as follows: On October 29, 1929, Robert McCarty, late of Scott county, departed this life leaving a last will and testament. The only portion material to this litigation is the third clause, in the following words: ‘Third-It is my will and I so direct that my executor hereinafter named sell all of my real estate within three years after my death, at public or private sale, as he may see fit, and in either case I give him full power to make a deed or deeds to the purchaser or purchasers, to vest a good title in either, and the proceeds of such sale after the payment and expenses of the sale to be equally divided between my children then living share and share alike,’ etc.

When the testator died, the defendant in error, Clyde McCarty, was in possession of the land in controversy under a lease for one year ending on March 1, 1930. He continued to hold possession, and in November, 1931, the plaintiff in error, as executor of the last will and testament of Robert McCarty, deceased, served a notice on the defendant in error to terminate his tenancy and deliver up possession on or before March 1, 1932. Possession continuing to be refused after March 1, 1932, this proceeding in forcible entry and detainer was commenced, and finally resulted in a judgment in favor of the plaintiff in the circuit court.

The question presented to us is only the narrow one of whether or not the plaintiff in error, as executor of the last will and testament of Robert McCarty, is entitled to the possession of the real estate of the deceased. It must be conceded that under our prior decisions the right of possession is not in the executor unless given to him either expressly or by necessary intendment in or from the terms of the will. Although it is clear that the express words of this will do not give the executor any power over rents or profits or any right to possession, it is argued by plaintiffin error that such control and right of possession are given by necessary implication. He relies principally upon four cases. The first case relied upon is that of Mather v. Mather, 103 Ill. 607. That case is not in point either as to the law or the facts, as the will of the testator created an active trust to continue throughout the lifetime of his surviving widow and all of his children, and it did not involve any necessity for deciding the question now before us. The second case relied upon is Lash v. Lash, 209 Ill. 595, 70 N. E. 1049. In that case the life use of the property was devised to the widow with remainder to the executor as a trustee. It is likewise of no assistance to us in this investigation. The other two cases cited, Teater v. Salander, 305 Ill. 17, 136 N. E. 873, and Fenton v. Hall, 235 Ill. 552, 85 N. E. 936, are also beside the point, as in each of them an active trust was involved.

In the case of Emmerson v. Merritt, 249 Ill. 538, 94 N. E. 955, 956, the will of the testator provided as follows: ‘My executor hereinafter named shall sell and convey, by deed, all of my property, both real and personal, and after the payment of my funeral expenses and debts and specific legacies, divide the balance or residue into five equal parts, making...