Milanko v. Jensen

• Decision Date: 22 November 1949
• Docket Number: No. 30956.,30956.
• Citation: 88 N.E.2d 857,404 Ill. 261
• Parties: MILANKO et al. v. JENSEN et al.
• Court: Illinois Supreme Court

404 Ill. 261

88 N.E.2d 857

MILANKO et al.

v.JENSEN et al.

No. 30956.

Supreme Court of Illinois.

Nov. 22, 1949.

Elizabeth Milanko, and others, sued Ellen Jensen, and others, to set aside a quitclaim deed executed by Hubert A. Reddish, deceased.

The Circuit Court for Jersey County, Clem Smith, J., rendered a decree setting the deed aside, and defendants appealed.

The Supreme Court, Simpson, J., affirmed the decree, and held that the deed was not effective to convey any interest in the realty.Meyer & Meyer, of East St. Louis, for appellants.

Frank Mashak, of St. Louis, Mo., and DuHadway, & Suddes, of Jerseyville (Claude J. Davis, Jerseyville, of counsel), for appellees.

SIMPSON, Justice.

This is a suit by the administrator with the will annexed of the estate of Hubert A. Reddish, deceased, Elizabeth Milanko, mother of said deceased, and Clarence G. Reddish, trustee under the last will and testament of Stephen M. Reddish, deceased, to set aside a quitclaim deed executed by Hubert A. Reddish in his lifetime, conveying all his interest in certain real estate involved in the Stephen M. Reddish trust estate to Ellen Jensen. Ellen Jensen was secretary to attorney Milton F. Napier, a defendant to this suit, and title was placed in her name at his suggestion as a matter of convenience, but she took no real interest in the premises in question. From a decree of the Jersey County circuit court setting aside the deed in question a direct appeal was taken to this court, a freehold being involved.

From the pleadings in the case it appears that on July 12, 1941, Hubert A. Reddish executed a quitclaim deed to Ellen Jensen conveying to her several hundred acres of land situated in Jersey County, which deed was duly recorded in said county on November 24, 1941. Hubert A. Reddish died testate July 14, 1944. By his will his entire estate with the exception of two-one dollar bequests was left to his mother, said Elizabeth Milanko. Stephen M. Reddish was the owner of the real estate at the time of his death. The trustee was directed by this will to handle the real estate to provide an income for the widow, Sarah Reddish, and the two sons of the testator, Clarence G. Reddish and Horace A. Reddish.

The will also provided that after the death of the widow and both of the sons the trust should terminate and the fee to the real estate should vest one half in the surviving children of the son Clarence G. Reddish and one half in the surviving children of the other son, Horace A. Reddish. It further provided that in case of the death of either of the sons, leaving no child or children or descendants of a child or children him surviving, the shares of the respective sons should vest in their respective heirs-at-law then surviving. The widow, Sarah Reddish, died on May 4, 1920. The son Horace A. Reddish died on February 5, 1938. He was the father of Hubert A. Reddish, now deceased, who was the grantor in the deed in question. The other son, Clarence G. Reddish, is still alive and is the trustee under his father's will.

The complaint charged that the quitclaim deed constitutes a cloud on the title of the plaintiffs. It further alleged that the grantee under the deed stood in a fiduciary relation to the grantor, and any interest or benefit she might appear to have was for the sole benefit of the grantor, and that the grantee had no interest in the real estate. A failure of consideration was also alleged. The answer of Ellen Jensen to the complaint asserted that the real estate was being held in trust for the benefit of Milton F. Napier and the heirs-at-law of the grantor, Hubert A. Reddish. The complaint was thereupon amended to include Dorothy Reddish, the divorced wife, and Dorothy Delores Reddish, the daughter of Hubert A. Reddish, and also Milton F. Napier, as parties defendant. The daughter, being a minor appeared by guardian ad litem who filed an answer on her behalf, but Dorothy Reddish made no appearance. Napier adopted the answer of defendant Ellen Jensen, and by stipulation of the parties a letter signed by Napier and directed to Hubert A. Reddish was made part of the answer.

In his letter Napier recited that Hubert A. Reddish sought to employ him as his attorney in connection with his claims against the Stephen M. Reddish estate, and also in connection with pending litigation against him personally, brought by a firm of attorneys who had represented him in pursuing claims against the same estate. Napier then recounted his understanding of the estate situation and proposed to accept the employment, and to cancel a $500 debt owing to him by Hubert A. Reddish only if Reddish actually executed a deed of the property in which he claimed an interest. The deed, according to the letter, was to convey title to Napier's secretary, Ellen Jensen, who was to hold title for the benefit of both Napier and Hubert in equal shares. If either party should die, the interest of the deceased party was to descend to his heirs. The letter recited that it was being written in triplicate, the original to go to Hubert A. Reddish, one copy for Napier's office file and one copy of which was to be attached to the recorded deed and kept in Napier's office safe, and that the execution of the deed to Miss Jensen would constitute acceptance by Reddish of the terms of the employment. The deed made no reference to the matters set forth in the Napier letter, but conveyed the premises outright without any limitation or qualification, and made no mention that the title was to be held in trust by the grantee. The letter was signed by Napier, but does not bear any signature or endorsement of approval by Hubert A. Reddish.

The answer contains no allegation that the letter was ever delivered to Reddish, or that he had accepted or approved the terms of employment contained in the letter. The answer admits that the interest of defendants in the real estate is founded on the quitclaim deed from Hubert A. Reddish and the...