Pease v. Kendall
| Decision Date | 19 September 1945 |
| Docket Number | No. 28382.,28382. |
| Citation | 63 N.E.2d 2,391 Ill. 193 |
| Parties | PEASE et al. v. KENDALL et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kane County; Harry W. McEwen, Judge.
Action by John S. Pease against Myron Kendall and others. From the judgment rendered, Clara D. Pease appeals.
Decree affirmed.
C. A. Caplow and Maurice L. Davis, both of Chicago, for appellant.
Sears, O'Brien & Streit, Ralph C. Putnam, Sr., and George R. Warner, all of Aurora (Barnabas F. Sears and Ralph C. Putnam, Jr., both of Aurora, of counsel), for appellees.
This is an appeal from the decree of the circuit court of Kane county concerning ex parte appointment of trustees or successor trustees to administer a certain trust said to have been created in the estate of John H. Pease, and allowing fees and expenses to the trustees.
John H. Pease died testate May 9, 1913. By his will he gave all his property to his son Edwin, in trust, with broad powers of management and sale. The will contained certain provisions and conditions upon which the son Edwin might become the absolute owner of the property, and in case he did not exercise that option and the trust should be still pending, the property should go as his son Edwin should appoint and direct by his last will and testament, and in case he did not make such will there was a gift over of the estate.
Edwin died testate October 11, 1940, without having complied with the condition upon which he would have acquired the absolute title to the property. By his will he gave to his wife, Clara, only such property as the statute of descent gave her, devising and bequeathing the remainder of the estate of John S. Pease in fee. The estate is a substantial one. A considerableportion of it is personal property in the form of securities, which were, at the time of the death of Edwin, in a safety-deposit box in the vaults of the Aurora National Building Corporation in the name of Edwin A. Pease, Trustee of the Last Will and Testament of John H. Pease, deceased.
During the lifetime of John H. Pease, Edwin and Clara Pease were separated, the latter having obtained a decree for separate maintenance. Soon after Edwin's death, Clara demanded delivery to her of the contents of the safety-deposit box, which was refused. John S. Pease about that time applied ex parte to the circuit court of Kane county for appointment of trustees to manage and control the estate under court supervision, and the court appointed Frank Paull, cashier of the Aurora National Bank, and Walter R. O'Malley, judge of the city court of Aurora, as trustees. They qualified, filed an inventory, and collected the rents and dividends, and deposited the same in the bank in their names as trustees. They procured an order authorizing them to employ counsel to oppose a petition which Clara Pease had filed in the courts of California for family allowance, claiming that Edwin A. Pease was a resident of California. The trustees opposed this action in California and were successful in preventing a decree establishing that Edwin was a resident of that State.
In the meantime appellee John S. Pease filed a complaint to construe the wills of John H. and Edwin A. Pease, to which all parties in interest were made parties. He then filed an amended complaint for the ratification and confirmation of the ex parte appointment of trustees and for the preservation of the trust assets and to prevent waste. All parties in interest, including appellant, Clara Pease, were made parties defendant. All but Clara Pease answered, including a guardian ad litem appointed for minors and incompetents. Clara Pease filed a motion to strike the complaint upon jurisdictional grounds. Her motion was overruled and she, electing not to answer, was defaulted, and a decree pro confesso as to her was entered. On hearing, the chancellor entered a decree ratifying the ex parte appointment of successor trustees and allowing the sum of $20,000 as fees and expenses to the trustees and fees to their attorneys.
Clara Pease brings the cause here insisting that no trust or equitable estate existed and therefore successor trustees could not properly be appointed, and that the court had no jurisdiction to appoint trustees ex parte without service of process, and all orders made in that proceeding were void. It is also urged that the amended complaint did not state a cause of action. Appellees urge, on the other hand, that a trust was in existence, requiring the appointment of a trustee; that the court had jurisdiction to appoint trustees and to confirm and ratify their prior action as trustees de son tort, and that the decree was warranted by the averments of the complaint.
The complaint seeking to ratify and authorize the appointment of trustees alleges that the will of John H. Pease created a trust; that the trustee therein named, i. e. Edwin, had died and left a will, and that, of the corpus of the estate of John H. Pease, a large amount of personal property was in a bank vault in the name of the original trustee as named in the will of John H. Pease. The complaint sets out that there are a number of pieces of real estate and that, upon the death of Edwin, there was no one to look after the collection of rents or collection of the income from personal property. The complaint alleges the attempt on the part of Clara Pease to obtain control of the personal property in possession of the bank and the further efforts to have Edwin declared a resident of California. It also sets out that a complaint had been filed to construe the wills of Edwin A. and John H. Pease and alleges the necessity that a court of equity appoint some one to preserve the estate and prevent waste in the estate of John H. Pease until such time as the wills can be construed. Appellant, by her motion to dismiss, admits all facts well pleaded, the substance of which we have just set out.
Courts of equity have paramount jurisdiction in the settlement of trust estates and may even control courts of law in their action in that...
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...dismiss, has admitted all facts well pleaded in the complaint, (Schreiner v. City of Chicago, 406 Ill. 75, 92 N.E.2d 133; Pease v. Kendall, 391 Ill. 193, 63 N.E.2d 2), the sole question before us is whether such complaint states a cause of action. The complaint, in turn, is to be appraised ......
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