Olney v. Howe

• Decision Date: 30 September 1878
• Citation: 1878 WL 10083,31 Am.Rep. 105,89 Ill. 556
• Parties: LAURA L. OLNEY, Admx.v.FERDINAND C. HOWE.
• Court: Illinois Supreme Court

89 Ill. 556

1878 WL 10083 (Ill.)

31 Am.Rep. 105

LAURA L. OLNEY, Admx.

v.FERDINAND C. HOWE.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Livingston county; the Hon. N. J. PILLSBURY, Judge, presiding.

On the 7th day of August, 1873, one Sophia L. Bogart died, leaving three surviving children and only heirs at law, to-wit: Laura L. Olney (wife of Ransom Olney), Ferdinand C. Howe, and Alfred S. Howe. She died at the residence of her daughter, Laura L. Olney, at Pontiac, Illinois. On the 21st day of October, 1873, said Laura caused a petition to be filed in the probate court of Livingston county for letters of administration upon the estate of her mother, setting forth in such petition that said Sophia L. Bogart died intestate August 7th, 1873, “leaving personal property consisting chiefly of household goods and one note for the sum of $1300, all of said personal estate being estimated to be worth about $1400; that said deceased left surviving her Laura L. Olney, Ferdinand Howe and Alfred Howe, her children.”

Letters of administration were issued upon this petition to Mrs. Laura L. Olney, and her bond as such administratrix was filed on the same day. The note of $1300 was in the hands of Moses Stevens, of Beaver Dam, Wis., and it, or the money due thereon, was obtained from him by Mrs. Olney, as administratrix of her mother's estate. A citation having issued from the county court of Livingston county, to said administratrix, to show cause why she should not file an inventory, she filed a statement claiming said note and other property, by virtue of the instrument in writing hereinafter set forth, as her own individual property, and also, therewith, an inventory of “all the property in which said Sophia Bogart had any interest at or prior to her decease,” at the same time insisting that the same were not assets belonging to said estate. Said administratrix also filed substantially the same statement as her final report, setting up that there were no assets, and petitioning for a final discharge.

The said Ferdinand C. Howe filed his objections in writing to said final report, but the county court overruled said objections and approved of the final report, from which order Howe appealed to the circuit court.

Upon trial in the latter court the order of the county court was set aside, and the administratrix was ordered to report to the next term of the county court the sum of $1300, in her hands as administratrix, belonging to said estate, for distribution pursuant to the statute. Mrs. Olney appealed from this order and judgment of the circuit court to this court.

The claim of the appellant to the property in controversy is based upon the following instrument:

“This indenture, made this 7th day of April, 1873, between Sophia Bogart, of Pontiac, Illinois, of the first part, and Laura L. Olney, of the same place, of the second part, witnesseth: that the party of the second part, for and in consideration of the covenants and agreements, sale and assignments hereinafter made by the party of the first part, does hereby covenant and agree to and with the said party of the first part that she will furnish her a home in her family, and a good and comfortable support, during the term of her natural life. The party of the first part, for and in consideration of the covenants and agreements hereinbefore made by the party of the second part, does hereby sell, assign and transfer to said party of the second part all her property and effects, consisting of household goods, and $1300, and the notes or other securities held therefor, possession of the same to be given to and taken by the party of the second part immediately upon the decease of the party of the first part. It is further mutually agreed by and between the parties, that the party of the first part is to have the full use of the interest of said $1300 during her lifetime, and that the party of the second part shall, at and after the decease of the party of the first part, pay to Alfred S. Howe, a son of the last named party, $300; and that the covenants, agreements and assignments herein contained shall be binding upon the heirs, executors, administrators and assigns of the respective parties.

In witness whereof the parties have hereunto set their hands and seals the day and year first above written.

SOPHIA G. BOGART, [ Seal.]

LAURA L. OLNEY. [ Seal.]”

The other facts, and the objections urged to the report of the administratrix, sufficiently appear in the opinion of the court.

Mr. A. E. HARDING, for the appellant.

Mr. S. S. LAWRENCE, for the appellee.

Mr. JUSTICE BAKER delivered the opinion of the Court:

The instrument on which appellant's claim is based did not take effect as a completed gift inter vivos, or as an executed contract, to work the transfer of title to appellant. There was no assignment or delivery of the note for $1300. The instrument was clearly executory in its character. By its terms possession of the property was to be given to and taken by appellant upon the decease of Mrs. Bogart, who was to have the full use of the interest on the $1300 during her lifetime, and after her death appellant was to pay Alfred S. Howe $300 of the money secured by the note. There is in the instrument no declaration of trust, and it does not appear therefrom that it was the intention of Mrs. Bogart to assume the position of trustee, and thereafter hold the note and other property in trust, for the benefit of appellant, as cestui que trust. The writing is essentially testamentary in its nature, and, omitting for the present the element of contract, its object was to make disposition of property after the death of the owner. It did not, after such death, take effect as a testamentary devise, for it was not executed and witnessed as required by the Statute of Wills. The question then arises, was the instrument, at the time it...