Miller v. Miller

• Decision Date: 17 February 1915
• Docket Number: No. 9793.,9793.
• Citation: 266 Ill. 522,107 N.E. 821
• Parties: MILLER et al. v. MILLER.
• Court: Illinois Supreme Court

266 Ill. 522

107 N.E. 821

MILLER et al.

v.MILLER.

No. 9793.

Supreme Court of Illinois.

Feb. 17, 1915.

Appeal from Circuit Court, Logan County; T. M. Harris, Judge.

Bill for partition by Arthur Lee Miller and others against Bernice Mayfield Miller. From a judgment sustaining a demurrer to defendant's cross-bill, she appeals. Reversed and remanded, with directions.

McCormick & Murphy, of Lincoln, and Le Forgee, Vail & Miller, of Decatur, for appellant.

C. Everett Smith and Fred I. Edgell, both of Lincoln, and Thomas D. Masters, of Springfield (Hardin W. Masters, of Springfield, of counsel), for appellees.

COOKE, J.

This is an appeal from a decree of the circuit court of Logan county for the partition of the real estate of Leonard Miller, deceased, among Bernice M. Miller, the appellant, and Arthur L. Miller and Rovina Miller, the appellees.

Leonard Miller was a resident of the city of Lincoln, in Logan county, and died intestate April 17, 1913, leaving surviving him, as his only heirs at law and next of kin, the appellant, Bernice M. Miller, his widow, and appellees, Arthur L. Miller, his brother, and Rovina Miller, his mother. He died seised of a portion of lots 7 and 8, in block 9, of the original town of Lincoln. These premises were improved by a three-story business building. The first floor and basement were occupied and used by Miller, at the time of his death, as a dry goods store. The second and third stories were designed for flats and offices. Miller and his wife lived in one of the flats, and the other flats and the offices were occupied by tenants. This property was incumbered by a mortgage given the Sangamon Loan & Trust Company of Springfield, Ill., to secure the payment of two notes for $10,000 each, executed August 17, [266 Ill. 524]1908, and maturing August 17, 1913, bearing interest, annually, at the rate of 5 and 5 1/2 per cent., respectively.

Thomas G. Miller, the father of Leonard Miller, died intestate in the city of Lincoln December 2, 1912, seised of a lot upon which he resided at the time of his death. He left surviving him as his only heirs at law and next of kin the said Rovina Miller, his widow, and the said Leonard Miller and Arthur L. Miller, his only children or descendants. After the death of Leonard Miller, the real estate owned by Thomas G. Miller at the time of his death was sold by Rovina Miller, Arthur L. Miller, and Bernice M. Miller for the sum of $2,482, the whole of the purchase price being paid the said Arthur L. Miller, and no part of the same has ever been paid to appellant. Appellant was appointed administratrix of the estate of her husband, and continued the conduct of the dry goods business and retained possession of the premises owned by her husband at the time of his death, residing thereon as she had done theretofore, and collecting rents from the various tenants.

On August 12, 1913, appellees brought this suit for partition and for an accounting. Later an amended bill was filed, which alleges the death of Leonard Miller, intestate, his seisin of a part of the said lots 7 and 8, the mortgage indebtedness owing to the Sangamon Loan & Trust Company, that there is now sufficient money and personal property in the hands of the administratrix to pay all of such indebtedness, and that since the death of Leonard Miller appellant has been in possession of the premises and has collected the monthly rental due from the various tenants. The bill then sets up the interests of the cotenants and prays for an accounting, that the appellant, who was also made a defendant as administratrix, be directed to pay the amount due the Sangamon Loan & Trust Company out of the personal estate, and that a division and partition of the premises be made among appellees and appellant, subject to the dower and homestead rights of appellant.

Appellant, in her own right and also as administratrix, filed answers to the bill. In her answer as administrix she alleges the death of said Thomas G. Miller, intestate, that he was seised of the real estate referred to at the time of his death, that it was sold after the death of Leonard Miller and that the whole of the purchase price was paid to appellees and is now held by them, that at the time of his death the said Thomas G. Miller was indebted to Leonard Miller, and asks that upon any accounting that may be had there be included an accounting for the purchase money received by appellees for the sale of the real estate owned by Thomas G. Miller at the time of his death.

Appellant also filed a cross-bill, in which she alleged that her father, Abram Mayfield, died October 22, 1898, leaving the appellant, his daughter, Fred S. Mayfield and William F. Mayfield, his sons, and Lucy F. Mayfield, his widow, as his only heirs at law him surviving; that at the time of his death the said Abram Mayfield was seised in fee simple of the premises sought to be partitioned; that Abram Mayfield died intestate on or about October 22d; that said Lucy F. Mayfield died March 28, 1913; that on March 1, 1903, appellant married Leonard Miller, who for many years had owned and conducted a retail dry goods business in the city of Lincoln; that he was a successful merchant, and his business was in a flourishing condition, and that prior to June, 1905, he became desirous of changing the location of his business and providing for a larger and more modern building in the business district of the city; that he conceived the idea of locating his business on the premises owned by appellant and her said brothers; that said Miller formulated a plan to purchase from the two brothers of appellant their undivided two-thirds interest in said premises; that his personal estate was not sufficient at that time to enable him to purchase this interest and erect upon the premises the character of building he had planned without borrowing the sum of $20,000, to be securedby a mortgage upon the premises; that in order to raise this amount of money by way of mortgage he desired to take the whole title in his own name; that it was his intention in securing the undivided one-third interest of appellant to enable him more readily to borrow the money necessary to be used in improving the premises; that it was then and there the intention, as between the said Miller and the appellant, to pay off the mortgage indebtedness as soon as possible entirely out of the rents, issues, and profits of the real estate so as to be acquired and improved by him, and if it became necessary to foreclose the mortgage it was the desire and intention, as between him and appellant, that the undivided two-thirds interest acquired by him from the said brothers of appellant should exonerate the undivided one-third interest which he contemplated acquiring from appellant from the lien of the mortgage; that in pursuance of this plan he contracted with the said brothers of appellant for the purchase of their undivided two-thirds interest in the premises; that he thereupon represented to appellant that he desired her to convey to him her undivided one-third interest in the premises; that at that time appellant was unacquainted with business matters and had no experience whatever in the retail dry goods business, and in these matters placed implicit confidence, reliance, and faith in her said husband and in her brother, the said Fred S. Mayfield; that thereupon the said Miller and the said Fred S. Mayfield stated and represented to appellant the plan conceived by Miller for the improvement of the premises, and said Miller requested appellant to convey to him her undivided one-third interest in the said premises; that it was then and there agreed by him and appellant, and was expressly promised to appellant by said Miller, that if she would convey to him her interest in the premises he would cause a mortgage to be placed upon the premises for the improvements contemplated, to be paid out of the rents, issues, and profits to be derived therefrom, and that in event of a foreclosureof the mortgage the undivided one-third interest of appellant should stand, as betwen her and said Miller, or as between her and his heirs at law, exonerated by the other undivided two-thirds interest; that said Miller further represented to her that in the event of his death before the mortgage was paid off, and in the event they should remain childless (as they then were), as he understood the law the mortgage upon the premises would be charged in preference to the real estate rather than to his personal estate, so that she need not fear that the amount of his personal estate coming to her in the event of his death would be diminished by reason of the mortgage indebtedness, inasmuch as the value of the undivided two-thirds interest in the premises would be amply sufficient to discharge the mortgage debt; that she thereupon conveyed to her said husband her undivided one-third interest in the premises on June 10, 1905, relying upon the promises and representations so made, believing them to be true, and relying particularly upon a promise to reconvey to her the undivided one-third interest in the property, and that the mortgage indebtedness would be paid solely out of the rents, issues, and profits of the real estate, and upon the understanding of her said husband that in the event of his death the undivided two-thirds interest in the real estate would be ample to discharge the mortgage indebtedness, and would, as between his next of kin and his heirs at law, be the primary fund for the payment of the same.

It is further alleged that appellant received no other consideration for this conveyance than the said promise so made to her; that the plan and scheme for procuring the title to said premises were not at the instance or request of the appellant, nor did she outline or plan the same as a scheme for the distribution or disposal of her property for her personal purposes, as a trust agreement, or as a settlement of her property in trust,...