Normal State Bank v. Killian

• Decision Date: 11 May 1944
• Docket Number: No. 27377.,27377.
• Citation: 54 N.E.2d 539,386 Ill. 449
• Parties: NORMAL STATE BANK v. KILLIAN et al.
• Court: Illinois Supreme Court

386 Ill. 449

54 N.E.2d 539

NORMAL STATE BANK

v.KILLIAN et al.

No. 27377.

Supreme Court of Illinois.

March 21, 1944.

Rehearing Denied May 11, 1944.

Action by the Normal State Bank against William A. Killian and another. From a judgment of the Appellate Court, 318 Ill. App. 637, 48 N.E.2d 212, reversing an order quashing a levy of execution on a judgment for plaintiff so far as it pertained to named defendant's interest in lands levied on and remanding the cause with directions, defendants appeal.

Judgment reversed, and order affirmed.Appeal from Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Frank S. Bevan, Judge.

Stone & Taylor, of Bloomington, for appellants.

Norbert B. Tyrrell and Sigmund Livingston, both of Chicago, Arthur A. Shay, of Streeter, and Bracken, Livingston & Murphy, of Bloomington, for appellee.

MURPHY, Justice.

On September 10, 1932, the circuit court of McLean county entered a judgment in favor of plaintiff, the Normal State Bank, and against defendants, William A. Killian and Elizabeth Killian, for $14,431.61. On September 8, 1939, a second execution was issued on said judgment and delivered to the sheriff of said county. The day it came into his hands, he levied on ‘all right, title and interest of William A. Killian and Elizabeth Killian,’ in certain lands which were fully described in the certificate of levy. The description included about 600 acres of farm land, which, for more convenient reference, will be designated herein as tracts A, B and C. Eight days after the levy was made, defendants filed a motion in which they asked that the levy and execution be quashed. After a hearing of evidence an order was entered which denied the motion to quash the execution but directed that the levy be quashed and the lands described in the certificate of levy be discharged therefrom. Plaintiff appealed to the Appellate Court from such order, limiting its appeal to that part of the order which pertained to the right, title and interest of William A. Killian in the lands described in the certificate of levy but elected to abide by said order as to any interest Elizabeth Killian had in the same lands. The Appellate Court reversed that part of the order appealed from and remanded the cause with directions to enter an order denying the motion to quash in toto. We granted leave to appeal.

The evidence introduced at the hearing was not incorporated into the record as filed in the Appellate Court or as it is presented here. The record now before us consists of the execution, the certificate of levy, defendants' motion to quash and the order appealed from. It is alleged in the motion that defendant William A. Killian filed a voluntary petition in bankruptcy and on January 6, 1933, was duly adjudged a bankrupt. This was within four months of the entry of plaintiff's judgment which was listed in the bankrupt's schedule of liabilities as a provable claim. In due course, plaintiff's claim was filed and duly allowed as an unsecured debt. Plaintiff exercised its right as a creditor and participated in the selection of a trustee. It is set forth that on April 23, 1936, an order was entered by the Federal court in the bankruptcy proceeding which discharged William A. Killian from all debts and claims which existed and were provable when he was adjudged a bankrupt January 6, 1933.

It further appears from the allegations in the motion that Michael Killian, the father of the defendant William A. Killian, died in 1913 and at the time of his death owned all the lands described in the certificate of levy in this case. By the third clause of his will his widow was devised a life estate in all of said lands and was given power of sale. Testator had five children who were made beneficiaries in the will. The daughter, Mary A. Kelly, was named as a devisee in the fourth clause as to the lands described therein and which is referred to herein as tract A. William A., defendant herein, was a beneficiary as to tract B under the fifth clause and Edmond J. as to tract C under the sixth clause. The language, employed by the testator in the fourth, fifth and sixth clauses was identical except as to the description of the real estate devised, the beneficiary named and the amounts that the respective beneficiaries were to pay annually to the other two children of the testator. The fifth clause described the land included in tract B and directed that at the death of the widow it should ‘go to and vest in my son William A. Killian, to whom the above land is given, devised, and bequeathed with this express condition, namely: That he shall not sell nor convey the same during his life time, but he may during his lifetime and after the death of my said wife, make such conveyance of the same as he may desire; said conveyance, however, not to take effect until after the death of the said William A. Killian, and with this further express condition, namely: That the said William A. Killian shall pay on the first day of June of each and every year after the death of myself and my wife, the sum of Three Hundred ($300.00) Dollars to my son, John J. Killian during his lifetime and the land hereby devised to my said son, William A. Killian, is hereby charged with the payment of the above sums as herein provided. In case said William A. Killian shall convey or attempt to convey the said land or any part thereof contrary to the provisions of this will, his title thereto shall be deemed forfeited and the land herein granted to him shall revert to and become a part of my estate.’ By the eighth clause testator bequeathed to his son John the annual payments which the daughter Mary and William A. were required to pay. It was provided in the ninth clause that if the wife of William A. should survive him, she should have a life estate in a part of tract B. The eleventh clause provided that if either Mary, William or Edmond should die prior to the death of the widow leaving child or children, then such child or children should take ‘the full share of such deceased child, subject to all the conditions of this will.’ It further provided, that if either of said three children should die prior to the death of the widow leaving no child or children, then the property bequeathed to such child should go to the survivor of such three children subject to the annual payments to the other children.

It is further alleged that William A. Killian set forth the fifth, eighth, ninth and eleventh clauses of his father's will in his schedule of assets, listing it as ‘interests in land’ under the heading for reversion, remainder and interests in expectancy. Thereafter, the trustee in bankruptcy filed a suit in the circuit court of McLean county to construe the will of Michael Killian and alleged that ‘all right, title and interest of William A. Killian acquired by virtue of said will is now vested in the complainant’ and asked for ‘a construction of said will and a determination of what rights and interest, if any, in the property mentioned in said will passed to the Trusteein Bankruptcy.’ The five children of Michael Killian mentioned as beneficiaries in the will and the four children of William A. Killian were made parties defendant. Answers were filed, and on April 27, 1936, a decree was entered which found that a question had arisen as to what interest, if any, the trustee in bankruptcy took in the land described, referred to herein as tract B. It contained a finding that Michael Killian left Maria Killian his widow, and five children his only heirs-at-law; and that the widow and all the children were then living. It construed the will as giving William A. Killian a contingent interest in the lands described in the fifth clause, tract B, ‘to vest only in the event that he survives Maria Killian, his mother, in which event he will become vested with an estate for life in said premises with the power to convey limited, however, by the condition’ set up in the fifth paragraph of the will of Michael Killian and that the devise was subject to the provision in reference to the annual payments to John. It concluded ‘that on January 6, 1933, the day on which he [William A. Killian] was adjudged as a bankrupt, he had no interest in the said premises, which was subject to seizure or sale upon execution or that could have been otherwise transferred.’ This decree was affirmed by this court. Riddle v. Killian, 366 Ill. 294, 8 N.E.2d 629. Thereafter, the trustee made a final report which was approved and the bankruptcy proceeding closed.

It is further set forth in the motion that on or about December 1, 1937, the plaintiff herein filed a petition in the Federal...