Oglesby v. Springfield Marine Bank

• Decision Date: 14 November 1946
• Docket Number: No. 29608.,29608.
• Citation: 69 N.E.2d 269,395 Ill. 37
• Parties: OGLESBY et al. v. SPRINGFIELD MARINE BANK et al.
• Court: Illinois Supreme Court

395 Ill. 37

69 N.E.2d 269

OGLESBY et al.

v.SPRINGFIELD MARINE BANK et al.

No. 29608.

Supreme Court of Illinois.

Sept. 18, 1946.

Rehearing Denied Nov. 14, 1946.

Appeal from Circuit Court, Logan County; Frank S. Bevan, Judge.

Action by Richard James Oglesby and others against the Springfield Marine Bank, as trustee, and others, and Augusta Smith Oglesby and others for a decree holding that realty deeded to certain of the defendants was part of a testamentary trust created by Emma Gillett Oglesby, deceased. From an adverse decree, Augusta Smith Oglesby and others appeal.

Decree affirmed.

THOMPSON, J., dissenting.

Catron & Hoffmann, of Springfield (Lacey Catron and Ines V. Hoffmann, both of Springfield, of counsel), for appellants.

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

Leland P. Miller, of Lincoln, guardian ad litem (M. I. Schnebly, of Urbana, of counsel), for James Edwin Oglesby, et al.

MURPHY, Justice.

This is an appeal from a decree entered in the circuit court of Logan county. When the cause was here on a former appeal, we could not consider the merits of the case for lack of necessary parties. The decree was reversed and cause remanded with directions to correct such defect. 385 Ill. 414, 52 N.E.2d 1000. Additional parties were added, evidence heard, and a final decree on the merits entered from which this appeal has been taken.

Emma Gillett Oglesby died November 25, 1928, leaving four children, Hiram G. Keays, a son by her first marriage, and John G. Oglesby, Jasper E. Oglesby and Louise Felicite Oglesby by the second marriage. Within the period covered by the several transactions relative to this cause, Louise Felicite Oglesby married Conte Alessandro Cenci. She is variously referred to in this record as Louise Felicite Oglesby, Felicite Oglesby Cenci, and Louise Felicite Oglesby Cenci Bolognetti. In some of the briefs she is Countess Cenci. Herein she will be designated as Countess Cenci, except in quotation of some instrument or document where her name will be quoted as stated therein.

Emma Gillett Oglesby owned a large acreage of land located in Logan county. She disposed of some of her real estate by deed and other parts by will. There are certain inconsistencies in the two methods of disposition. The issue formed by the pleadings is as to whether John G. Oglesby and Countess Cenci, having been named as grantees in two deeds and beneficiaries under the will, elected to take under the will.

There is no material conflict in the evidence. On April 3, 1922, Emma Gillett Oglesby conveyed, by statutory form of warranty deed, approximately 800 acres of land to her son John. At the same time, by the same form of deed, she conveyed approximately 800 acres to her daughter Countess Cenci. The deeds were not recorded until six days after the death of Emma Gillett Oglesby. The chancellor found, and such finding is not challenged, that both deeds were delivered on or about the date of their execution. It is conceded by the pleadings that the grantees went into possession of their respective tracts of land immediately after the execution of the deeds. John G. Oglesby continued in such possession until his death May 26, 1938, and since then the beneficiaries of his will have been in possession. Countess Cenci's possession continued uninterruptedly to the present time.

The undisputed evidence is that on and prior to the execution of the deeds, there was an oral understanding between Emma Gillett Oglesby, John Gillett Oglesby and Countess Cenci as to the devolution of the real estate after the death of the respective grantees. Such oral understanding was reduced to writing on April 22, 1925. It was not filed for record and the claim is made by appellees that the parties to the instrument kept it a secret and its existence was unknown to appellees until appellants offered it in evidence at the close of the hearing upon which the decree appealed from on the former appeal was based. The effect of the contract upon the title conveyed by the deeds of April 3, 1922, when considered as a part of the same transaction is a controverted question in this case. The terms of the contract and its effect will be discussed later.

On January 27, 1924, Emma Gillett Oglesby executed a will, which was divided into what is designated as items I to XIII, inclusive. By the fifth item she made disposition of the 800 acres previously conveyed by deed of April 3, 1922, to John G. Oglesby. By the sixth item she disposed of the land formerly conveyed by deed to Countess Cenci. Each of items V and VI is long and deals with conditions that would arise under various contingencies such as survivorship of one beneficiary over others of a class, or the devolution of the title if certain beneficiaries should die without leaving children surviving. The details are not pertinent. It is sufficient to note that by item V, testatrix devised a life estate to John G. Oglesby in the 800 acres formerly deeded to him. By item VI she devised a life estate to Countess Cenci in the land conveyed to her by one of the deeds of April 3, 1922. The remainder in the 800 acres deeded to John G. Oglesby testatrix devised to his surviving child or children or descendants of same. A similar disposition was made in item VI in favor of Countess Cenci and her children as to the lands formerly deeded to her. Item V further provided that if John G. Oglesby survived testatrix and left no lineal descendants, then Countess Cenci was to have an undivided one-half for life and the other undivided one-half was to become a part of the corpus of a trust created in item VIII of the will. Plaintiffs-appellees Richard James Oglesby and John Lewis Oglesby are beneficiaries in said trust. The appellee Springfield Marine Bank, is the duly qualified and acting trustee of said trust. Plaintiffs-appellees' action is founded upon the interest which they claim as cestui que trustent in the trust created in item VIII. If their claim is sustained then a life estate devised by the will of John G. Oglesby to defendant-appellant Augusta Smith Oglesby, would be defeated and likewise other beneficial interests created by his will would be destroyed.

John G. Oglesby died May 26, 1938, leaving no lineal descendants. Item V of the will of Emma G. Oglesby provided for the contingency that might arise by the death of John G. Oglesby without leaving lineal descendants and made provision that, subject to the life estate of Countess Cenci and the beneficial interest of the trust created in item VIII, John G. Oglesby was vested with a power of appointment to appoint by deed or will to ‘any child, children or lineal descendants of any child or children of Louise Felicite Oglesby, Jasper E. Oglesby or Hiram G. Keays' who survived John G. Oglesby. Further provision was made that if John G. Oglesby did not exercise the power of appointment, then such remainder was to go to the lineal descendants of Louise Felicite Oglesby and Jasper E. Oglesby.

Item VI of the will, except for change of names, was similar to item V and disposed of the 800 acres formerly deeded to Countess Cenci. It contained provision for equalizing values of gifts made in the will and charged the 800 acres deeded to Countess Cenci with the payment of $10,000 to John G. Oglesby and $3,000 to the trust fund created by item VIII of the will. Such payments were to be made within three years after the will was admitted to probate. Plaintiffs-appellees pray that Countess Cenci may be ordered to pay the said $3,000 to the trustee of the trust created in item VIII.

Augusta Smith Oglesby, the wife of John G. Oglesby, survived him and is the executrix of his will. She appears in this case as one of the appellants in her representative capacity and as an individual. Countess Cenci was named a trustee under the will of John G. Oglesby and she appears as coappellant in her representative capacity, as well as in behalf of her individual interests. Whether Countess Cenci made an election between her interest in the 800 acres deeded to her and the benefits of her mother's will is directly involved and an issue in this case, but any other question as to the devolution of the title which may be subject to her directions by deed or will cannot be determined at this time.

By the will of John G. Oglesby, Countess Cenci was devised a fee-simple estate in certain lands which included approximately 230 acres conveyed to him by the deed of April 3, 1922. By the fifth paragraph of his will, he devised approximately 570 acres, being the remaining part of the land conveyed on April 3, 1922, in trust, with directions that from the net income plaintiffs-appellees Richard James Oglesby and John Lewis Oglesby were each to receive a one-sixth part, their sister Emma Jean Oglesby, now Emma Jean Counts, and their brother James Edward Oglesby, a two-sixths each. It was stated in the will that the devise in trust was made in an endeavor to equalize the proportionate share received by the four children of Jasper Oglesby. It was noted that plaintiffs-appellees, Richard James Oglesby and John Lewis Oglesby, were beneficiaries in the trust created in item VIII of the will of Emma G. Oglesby and that the corpus of said trust from which they were to receive the income, consisted of about 1,193 acres. The will of John G. Oglesby directed that the trust of 570 acres was to continue until James Edward Oglesby (he being a minor at this time) should attain the age of 50 years, and upon the happening of such event, the trustee was empowered to sell the land and divide the proceeds to the same beneficiaries, in the same proportion as they had received the income. If any of them were dead at that time, their shares were to go to their lineal descendants. If all the beneficiaries (the four children of Jasper Oglesby) should die prior to the period...