Oglesby v. Springfield Marine Bank

• Court: Illinois Supreme Court
• Writing for the Court: SMITH
• Citation: Oglesby v. Springfield Marine Bank, 385 Ill. 414, 52 N.E.2d 1000 (Ill. 1944)
• Decision Date: 18 January 1944
• Docket Number: No. 27479.,27479.
• Parties: OGLESBY et al. v. SPRINGFIELD MARINE BANK et al.

385 Ill. 414

52 N.E.2d 1000

OGLESBY et al.

v.SPRINGFIELD MARINE BANK et al.

No. 27479.

Supreme Court of Illinois.

Jan. 18, 1944.

Action by Richard James Oglesby and John Lewis Oglesby against Springfield Marine Bank and others to obtain a decree holding that lands deeded to individual defendants were part of a testamentary trust created by Emma Gillett Oglesby, deceased. From a judgment for plaintiffs, Augusta Smith Oglesby, individually, and as executrix of the last will and testament of John G. Oglesby, deceased, and Louise Felicite Oglesby Cenci, individually, and as trustee under the last will and testament of John G. Oglesby, deceased, and certain grandchildren of Emma Gillett Oglesby appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Logan County; Frank S. Bevan, judge.

Catron & Hoffmann, of Springfield, for appellants.

Brown, Hay & Stephens, of Springfield, and Edwin C. Mills and Harold F. Trapp, both of Lincoln (Paul W. Gordon, of Springfield, of counsel), for appellees.

SMITH, Chief Justice.

This is a direct appeal from a decree of the circuit court of Logan county. Many questions were presented by the pleadings. The construction of certain provisions of the will of Emma Gillett Oglesby, as well as certain deeds and other instruments, in involved. The ultimate issue is the ownership of title to 1,600 acres of land located in Logan county. A freehold is directly involved.

The land in question was owned by Emma Gillett Oglesby on and prior to April 3, 1922. On that date she executed a warranty deed by which she conveyed approximately 800 acres of the land to her son John G. Oglesby. John G. Oglesby is also known in the record as John Dean Gillett Oglesby. This deed on its face purported to convey in fee, with no limitations or restrictions, the land therein described. It was duly acknowledged and delivered to the grantee. On the same day, Emma Gillett Oglesby executed and delivered a like deed, conveying approximately 800 acres of the land to her daughter Louise Felicite Oglesby, who is also known in the record as Louise Felicite Oglesby Cenci and Felicite Oglesby Cenci Bolognetti. The grantees took possession of the lands conveyed to them, respectively, and thereafter exercised acts of ownership over the same.

On January 27, 1924, Emma Gillett Oglesby made and published her last will and testament. She departed this life on November 25, 1928. Her will was duly admitted to probate on December 21, 1928, by the county court of Logan county. Her estate was finally settled in due course. She left her surviving Hiram G. Keays, John G. Oglesby, Jasper E. Oglesby and Louise Felicite Oglesby Cenci, her children and only heirs-at-law.

The will of Emma Gillett Oglesby consisted of thirteen paragraphs, designated therein as ‘Items.’ The only portions of her will necessary to be noticed in disposing of the case on the record before us are paragraphs 5, 6 and 8. By paragraph 5 she devised to her son John G. Oglesby, for the term of his natural life, the same real estate which she had conveyed to him by her deed of April 3, 1922. He was also given the power to appoint the remainder in said real estate to any child, children, or lineal descendants of any child or children, of Louise Felicite Oglesby Cenci, Jasper E. Oglesby or Hiram G. Keays, who might survive the said John G. Oglesby, in the event he died without children or descendants of children surviving.

By paragraph 6 of her will she devised to her daughter Louise Felicite Oglesby Cenci the same real estate which she conveyed to her by the deed of April 3, 1922, giving her only a life estate therein. The remainder interest was disposed of by the will at the death of the life tenant. A like limited power of appointment of the remainder was given to her as that given to John G. Oglesby by paragraph 5, except the appointment was limited to children, or their descendants, of John G. Oglesby, Jasper E. Oglesby and Hiram G. Keays.

By paragraph 8 of the will she created a trust in which the plaintiffs, Richard James Oglesby and John Lewis Oglesby, are the beneficiaries and entitled to the net income therefrom. Appellee Springfield Marine Bank is the duly qualified and acting trustee under said will.

John G. Oglesby died testate on May 25, 1938. His will and a codicil thereto were duly admitted to probate by the county court of Logan county. By his will he devised a portion of the real estate conveyed to him by the deed from Emma Gillett Oglesby on April 3, 1922, to his wife Augusta Smith Oglesby for her life. He also devised a part to his sister, Louise Felicite Oglesby Cenci, in fee and a part to her for life. He purported to dispose of the fee, at the expiration of the life estates, to designated beneficiaries.

The plaintiffs, Richard James Oglesby and John Lewis Oglesby, are the beneficiaries under the trust created by the eighth paragraph of the last will and testament of Emma Gillett Oglesby. The purpose of the suit was to obtain a decree holding that the lands deeded to John G. Oglesby by Emma Gillett Oglesby, by her deed of April 3, 1922, are a part of the trust created by the eighth paragraph of the will of Emma Gillett Oglesby. They alleged in their complaint that notwithstanding Emma Gillett Oglesby on April 3, 1922, conveyed the land in question to John G. Oglesby and Louise Felicite Oglesby Cenci, she disposed of said land by paragraphs 5 and 6 of her will, as property owned by her; that by other provisions of her will she devised and bequeathed certain other real and personal property to her son John and to her daughter Felicite; that they had each accepted the provisions of the will and had accepted the property devised and bequeathed to them by the will. It was alleged that by accepting the benefits of the other provisions of the will they had elected to take under the will and as a result the property deeded to them by the deeds of April 3, 1922, passed under the will of Emma Gillett Oglesby; that the property conveyed to John G. Oglesby, upon his death, became a part of the trust created by paragraph 8 of the will, in which trust the plaintiffs were the beneficiaries. They further alleged that they had demanded that the trustee bring suit for the purpose of having the property declared a part of the trust; that upon the trustee's refusal to do so the suit was brought in the names of the beneficiaries of the trust.

The suit was brought against Augusta Smith Oglesby, individually and as executrix of the last will and testament of John G. Oglesby, deceased, Louise Felicite Oglesby Cenci, individually and as trustee under the last will and testament of John G. Oglesby, deceased, and certain grandchildren of Emma Gillett Oglesby. The trustee was also named a party defendant.

A joint answer was filed by Augusta Smith Oglesby, individually and as executrix of the will of John G. Oglesby, deceased, and Louise Felicite Oglesby Cenci, individually and as trustee under the will of John G. Oglesby, deceased. By this answer they alleged that John G. Oglesby and Louise Felicite Oglesby Cenci acquired title in fee to the property under the deeds of April 3, 1922. A reply to this answer was filed by plaintiffs. Issues were joined on the complaint, the answer and the reply. Evidence was heard in open court.

At the conclusion of the evidence the defendants Louise Felicite Oglesby Cenci and Augusta Smith Oglesby offered in evidence a document identified in the record as defendants' exhibit 3. The court refused to admit this document in evidence for the reason that it had not been pleaded or referred to in the answer of the defendants. Thereupon said defendants obtained leave to file an amended answer. By their amended answer they alleged that the deeds of April 3, 1922, were made, executed and delivered to the grantees therein named upon certain conditions and limitations, in accordance with an oral understanding and agreement made at that time with Emma Gillett Oglesby, the grantor; that such grantees acquired title under said deeds only in trust and subject to such understanding and agreement; that said oral agreement was afterwards, on April 22, 1925, reduced to writing. A copy of said agreement, as reduced to writing, was attached to, and made a part of, the amended answer, by reference. Said instrument purports to be an agreement executed on April 22, 1925, between John G. Oglesby and Felicite Oglesby Cenci Bolognetti, evidencing a prior oral agreement. After reciting the execution of the deeds on April 3, 1922, by Emma Gillett Oglesby it was stated in this instrument that said deeds were made ‘in pursuance of an understanding by her had with the parties hereto.’ Then, after reciting certain conditions upon which such conveyances were made, the parties to the instrument were each obligated to ‘make and execute a last will and testament and by its terms give, devise and bequeath’ to the other ‘for and during her (or his) natural life, with remainder in fee simple to some child, children or descendants of a child or children of John D. Gillett,’ the lands described in the deeds. The instrument contained the further covenant that the survivor, after the death of the other, would, by deed convey, or by will devise, all the lands described in the deeds of April 3, 1922, to some child, children or descendants of child or children of John D. Gillett, deceased. John D. Gillett was the father of Emma Gillett Oglesby. Attached to this instrument was a statement signed by Emma G. Oglesby as follows:

‘This is to certify that I, Emma G. Oglesby upon to-wit the 3rd day of April, A. D. 1922, as the grantor therein did upon the date aforesaid make, execute, acknowledge and deliver the two certain deeds in the foregoing contract described, therein and thereby conveying to John G. Oglesby the said lands in said contract described, and to Louise Felicite Oglesby (since intermarried with Conte Don Alessandro Cenci Bolognetti) the certain...