Pasquay v. Pasquay

• Decision Date: 18 June 1908
• Citation: 235 Ill. 48,85 N.E. 316
• Parties: PASQUAY v. PASQUAY et al.
• Court: Illinois Supreme Court

235 Ill. 48

85 N.E. 316

PASQUAY

v.PASQUAY et al.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; L. D. Puterbaugh, Judge.

Bill by Ida L. Pasquay against Ernest A. Pasquay, Arthur Keithley, and others to have a sale of property on execution declared void, and for other relief. From a decree on demurrer for complainant, defendant Keithley, appeals. Affirmed.Arthur Keithley, pro se.

Sheen & Miller, for appellee.

This was a bill in chancery filed by appellee in the circuit court of Peoria county against appellant Arthur Keithley and others, in which appellee claimed to be the owner of certain real estate and prayed for certain relief as against a claim of interest in said premises made by appellant, and that the title in and to said premises be by decree of the court confirmed and vested in appellee. As the case was disposed of by demurrer to the bill, it is necessary to an intelligent under-standing of the questions involved that the substance of the bill be fully set out.

The amended bill alleged that Emilie Pasquay died intestate in Peoria, Ill., February 18, 1903, leaving no husband surviving her, but leaving complainant and her three brothers, Ernest, Rudolph, and Albert Pasquay, her only children and heirs at law, all of whom were of full age before the death of their mother; that at the time of the death of Emilie Pasquay she owned in fee and was in possession of the south half of lot 6, block 34, Monson & Sanford's addition to the city of Peoria, the fair cash value of which was $4,500; that the will of said Emilie Pasquay was as follows:

‘First. I appoint my brothers, Rudolph A. Schimpff, Gustavus H. Schimpff and Albert L. Schimpff, and the successorsand successor of them, as executors of this my last will and testament, and I direct them to pay all my just debts, funeral expenses and costs of administration as soon after my death as conveniently can be done.

‘Second. It is my will that my executors shall divide all of my estate (except the sum of $4500, of which I will dispose in the next clause), in equal shares among my children, their heirs and assigns.

‘Third. I give and bequeath to my daughter in addition to her one-fourth share of my estate, $4500, which sum I give to my executors, and to the survivors and survivor of them, in trust for the purpose of paying to my said daughter, Ida, the income and interest of the same in semiannual installments, for her sole personal use; and if such income or interest should not be necessary for my said daughter's use or support, the same to be re-invested the same as the principal, and whatever sum shall remain or have accumulated at the death of my daughter, Ida, shall be divided among her brothers, their heirs or assigns, it being my will that said interest or income from said $4500 shall be paid to my daughter, Ida, during the term of her natural life.

‘Fourth. My life insurance, or the proceeds thereof, shall be divided among my sons, their heirs and assigns, as the policies are held in their names.

‘Fifth. It is my will that any money advanced by me to any of my children, and notes and mortgages given as security for such money, with interest remaining unpaid thereon, should be kept out and deducted from the share or shares of such child or children at the division of my estate, unless I should otherwise hereafter dispose.

‘Sixth. I wish to have my executors arrange a sale of my personal property and real estate that I may possess at the time of my death, giving my children the preference as such purchasers at such sale, excepting, however, from such sale such articles of household goods, books, silverware and jewelry as my children should like to retain as keepsakes.

‘Seventh. I give to my said executors, their successors and successor, full power to execute all necessary deeds and conveyances in the disposition of my estate and to carry this will into effect.’

The bill alleged that the persons named in the will as executors and trustees refused to qualify; that the will was admitted to probate in March, 1903, and the three sons of the testatrix were duly appointed and qualified as administrators with the will annexed; that the estate of the testatrix consisted largely of personal property, a part of which was an indebtedness from Ernest Pasquay of $3,625, an indebtedness from Rudolph of $900, and an indebtedness from Albert of $625, all of which was for money that had been advanced them by the testatrix in her lifetime; that the administrators took possession of the personal estate of the said testatrix and inventoried the same at the sum of $16,129.15; that the indebtedness of the estate amounted to only the sum of $429.31; that the administrators had kept and retained all of said personal estate and had never accounted therefor to complainant or to the probate court; that complainant became one of the bondsmen of the administrators; that the will directed the executors to sell all the personal and real estate owned by the testatrix, and with the exception of $4,500, to be withheld for the benefit of complainant, all the proceeds of the sale should be divided equally among the children of the testatrix, deducting from the shares of each moneys advanced to them by their mother in her lifetime; that in March, 1903, and prior to their appointment as administrators, complainant and her brothers entered into a verbal agreement that, instead of selling the premises above described, ‘the same should be by their said agreement converted into real estate and conveyed to this complainant in lieu of the $4,500 bequeathed to her in and by the said will of their mother’; that at the time said agreement was made, and in pursuance thereof, said Ernest, Rudolph, and Albert Pasquay delivered to the complainant the exclusive possession of the said real estate; that she entered into possession of the same and has ever since held it, and now holds it, under and in pursuance of said agreement and of the conveyances thereafter mentioned; that no deed of conveyance was made to the complainant by her brothers at the time of the agreement and delivery of possession to her, but they held the $4,500 bequest to her as well as all the balance of the estate of said testatrix, except a note and mortgage for the sum of $1,200; that afterwards, by virtue and in consummation of the above-mentioned agreement, Albert Pasquay and wife conveyed said real estate by quitclaim deed to Rudolph Pasquay August 4, 1904; that Rudolph Pasquay August 12, 1904, and Ernest Pasquay August 17, 1904, conveyed the same premises in like manner to complainant.

The bill further alleged that on the 2d day of July, 1904, Arthur Keithley, appellant, sued out of the circuit court of Peoria county a writ of attachment against Albert Pasquay, and caused the sheriff to levy the same upon said real estate and upon the interest of Albert Pasquay therein, and afterwards, on the 3d day of January, 1905, said Arthur Keithley obtained a judgment in the case in which the attachment was issued against Albert Pasquay, both on the attachment and in assumpsit, for the sum of $1,228.14, and on the 20th of February, 1905, by virtue of a special execution, sold the interest of Albert Pasquay in the property so levied upon, at which sale said Arthur Keithley became the purchaser for the sum of $750, by virtue of which he claims to be the owner of the undivided one-fourth interest in said real estate. The bill alleges that at the time of the issuance of the writ of attachment and of the levy and sale complainant was, by herself and tenants, in full and exclusive possession of said real estate, and that Albert Pasquay...