Oswald v. Caldwell
Decision Date | 12 February 1907 |
Citation | 80 N.E. 131,225 Ill. 224 |
Court | Illinois Supreme Court |
Parties | OSWALD v. CALDWELL et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; J. W. Mack, Judge.
Suit by William G. Galdwell against Otto A. Oswald and others. From the decree, defendant Oswald appeals. Affirmed.
Hallett, Sauter & Henkel, for appellant.
Custer, Griffin & Cameron, for appellee Caldwell.
Caswell & Healy and Vail & Pain, for appellee Anne Paton.
This was a bill in chancery filed in the circuit court of Cook county by William G. Caldwell, one of the appellees, against the appellant, Otto A. Oswald, the heirs at law of Anne Caldwell, deceased, and certain other persons and societies claiming an interest in certain real estate which it is conceded belonged to Anne Caldwell, deceased, prior to the 28th day of January, 1898, and described as lot 1, in block 124, in school section addition to Chicago, to obtain an adjudication by a court of chancery as to the legal effect of a certain warranty deed and two certain instruments in writing executed by said Anne Caldwell purporting to convey said real estate to said William G. Caldwell, and authorizing him to make a sale thereof, and to distribute the proceeds arising from such sale among the persons and societies named in said two instruments in writing, after the death of Anne Caldwell.
It is contended by the appellant that a trust was created by said deed, one of said instruments in writing, and the admissions of William G. Caldwell made in his bill, and in his deposition taken in this case, for the benefit of the persons and societies named in said instrument in writing; while the claim of the appellee Anne Paton, who is the only appellee who has filed a brief in this court, is that the deed, the two instruments in writing, the admissions in the bill and the testimony of William G. Caldwell show that said deed and two instruments in writing were to take effect only after the death of Anne Caldwell, and were testamentary in their character, and therefore void. Answers and replications were filed, and a decree was entered holding that said deed and two instruments in writing were testamentary in their character, and had no binding legal force, and that the said real estate was intestate property, and descended to the heirs of Anne Caldwell, deceased, and decreeing, according to the alternative prayer of the bill, that said real estate be partitioned between the heirs at law of Anne Caldwell, deceased, from which decree Otto A. Oswald has prosecuted an appeal to this court. The deed bore date January 28, 1898, was in statutory form, recited a consideration of ‘one dollar in hand paid, and other good and valuable considerations,’ and was signed and acknowledged by Anne Caldwell, and purported to convey to said William G. Caldwell, in fee simple, said premises, which deed on the day of its execution was handed to William G. Caldwell by Anne Caldwell. The first instrument in writing was in the handwriting of Anne Caldwell, and was signed by her and was handed by her to William G. Caldwell on February 10, 1898, and is as follows:
Mary I. Oswald, the daughter of Anne Caldwell mentioned in the foregoing instrument in writing, died testate subsequent to its execution, and shortly after her death Anne Caldwell executed a second instrument in writing relative to the distribution of her estate after her death, which instrument in writing was in her handwriting, and was also handed to William G. Caldwell shortly after it was written. That instrument reads as follows:
Anne Caldwell died intestate in June, 1900. Otto A. Oswald is the husband of and sole legatee and devisee of Mary I. Oswald, deceased. Anne Paton is a child of a deceased daughter of Anne Caldwell, and a minor. In the bill filed by William G. Caldwell he averred And the only evidence which bears in any way upon the execution of said deed and instruments in writing by Anne Caldwell and their delivery to William G. Caldwell, and the reasons which led to their execution, is found in the testimony of William G. Caldwell, who testified fully, and without objection, as to his competency as a witness, to the execution of said deed and instruments in writing, and the conversations which took place prior and subsequent to their execution between himself and his mother, and the motives which prompted his mother to execute said deed and instruments in writing and place them in his hands.
The testimony of William G. Caldwell was taken in the form of a deposition, and is so important to a proper decision of this case that we feel justified in inserting in this opinion the following excerpts therefrom: ...
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Klouda v. Pechousek
...... Oswald v. Caldwell, 225 Ill. 224, 80 N.E. 131. With deeds that have been delivered it is different. A deed signed, sealed, and delivered becomes at once ......
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Butts v. Richards
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