Pennsylvania Co. for Ins. on Lives v. Bauerle

• Decision Date: 02 November 1892
• Citation: 33 N.E. 166,143 Ill. 459
• Parties: PENNSYLVANIA CO. FOR INSURANCE ON LIVES AND GRANTING ANNUITIES et al. v. BAUERLE.
• Court: Illinois Supreme Court

143 Ill. 459

33 N.E. 166

PENNSYLVANIA CO. FOR INSURANCE ON LIVES AND GRANTING ANNUITIES et al.

v.BAUERLE.¹

Supreme Court of Illinois.

Nov. 2, 1892.

Appeal from circuit court, Cook county; L. C. Collins, Judge.

Bill by the Pennsylvania Company for Insurance on Lives and Granting Annuities, Andrew Long, John M. Brownson, and Anthony J. Antello against Michael Bauerle. The bill was dismissed on demurrer. Complainants appeal. Affirmed.Sawin & Vanderploeg and Henry V. Freeman, for appellants.

Kraft & Kraft, for appellee.

BAKER, J.

This is a bill in equity for the specific performance of a contract for the sale of land, exhibited in the circuit court of Cook county by the Pennsylvania Company for Insurance on Lives and Granting Annuities, a corporation organized and doing business in the state of Pennsylvania, trustee and executor under the last will and testament of John H. Shoenberger, deceased, and by Andrew Long, John M. Brownson, and Anthony J. Antello, coexecutors under said last will and testament, complainants in that court and appellants in this, against Michael Bauerle, defendant in that court and appellee in this. In the court below a demurrer was sustained to the bill of complaint, and it was dismissed out of court for want of equity, but without prejudice.

The 80 acres of land which is the subject-matter of the contract, the specific performance of which is herein sought, is in Cook county, and adjoins the city of Chicago, and is the S. 1/2 of the S. E. 1/4 of section 17, township 39 N., range 13 E. of the third P. M. It was the only real estate, and the only property of any kind, that said John H. Shoenberger, at the time of his death, owned in the state of Illinois. Said Shoenberger died in the city of New York on the 12th day of November, 1889, and left a last will and testament, which was duly probated in the surrogate's court in and for the city, county, and state of New York; and in said court, in conformity with the provisions of the will, Alice E. Shoenberger, widow of the deceased, and one Alexander T. Mason, were appointed executrix and executor of all the testator's property within the state of New York. An exemplished copy of the proceedings had in said surrogate's court was then filed and recorded in the register's office and orphans' court in and for the city and county of Philadelphia and state of Pennsylvania, and on January 30, 1890, said orphans' court granted letters testamentary, in conformity with the provisions of the will, to the four complainants and appellants herein, of all that portion of the real estate, personal effects, and property of the deceased situate in the states of Pennsylvania, Ohio, Kentucky, and Illinois. A full and complete exemplification of the will, and of the proceedings in the said surrogate's court and in said orphans' court, was filed and recorded in the recorder's office of Cook county, Ill., on February 25, 1890. On the 14th day of August, 1890, appellants, by an instrument in writing of that date, sold to appellee the 80 acres of land in question of $240,000, to be paid as follows: $5,000 cash, the receipt of which was acknowledged, $55,000 upon receipt of warranty deed, and abstract showing good title; $60,000 on or before one year; $60,000 on or before two years; and $60,000 on or before three years,-with 6 per cent. interest, etc.; and by said writing appellants covenanted and agreed to convey and assure said land to appellee, in fee simple, clear of all incumbrances whatever, by good and sufficient warranty deed, and it was mutually agreed that all the covenants and agreements in the writing contained should be fulfilled within 30 days after abstract had been furnished, showing good title. The averments of the bill show that, within the time contemplated by the agreement, an abstract of title was made and delivered to appellee, which shows a good, merchantable, fee-simple title to said land, free of all incumbrances, vested in appellants, as trustee and executors of the estate of John H. Shoenberger, deceased.

In order properly to consider the objections that are urged by appellee upon his demurrer to the sufficiency of the bill of complaint herein, it is necessary to state certain matters which appear upon the face of the bill, and of the true copy of the will of the deceased, which is expressly made a part of said bill. The twenty-first item of said will is as follows: ‘I do hereby constitute and appoint the Pennsylvania Company for the Insurance on Lives and the Granting Annuities, of the city of Philadelphia, Pennsylvania, my trustee and executor, and my friends Andrew Long, Esq., now cashier of the Exchange National Bank of Pittsburgh, Pennsylvania, J. M. Brownson, Esq., now in the employment of Messrs. Shoenberger, Spear & Company, of Pittsburgh, Pennsylvania, and Anthony J. Antello, Esq., of Philadelphia, Pennsylvania, as coexecutors of this, my last will and testament, for all that portion of my estate, real and personal, and effects and interests, in the states of Pennsylvania, Ohio, Kentucky, and Illinois, and of any property that may be transferred to them upon the close of the administration of my estate in the state of New York by my executors hereinbefore appointed by me for that state.’

In the thirteenth item of the will the testator gave, devised, and bequeathed to his trustees and executors thereinafter named in the will, in trust, a certain piece or parcel of land in the city of Pittsburgh, by metes and bounds, it being the easterly and upper end of an eight-acre lot purchased from the Allegheny Cemetery Corporation, ‘to hold and convey the same, as hereinafter directed, for the erection and maintenance thereon of the necessary buildings for a Portestant Episcopal Church hospital, as a memorial to my deceased wife, which hospital shall ever be called and known as ‘St. Margaret Memorial Hospital.” The eighteenth item of the will is as follows: ‘Eighteenth. All the rest, residue, and remainder of my estate, both real and personal, I give and bequeath to my trustees and executors hereinafter named, and to their successors, in trust, to hold the same, and as soon as practicable to convert the same into money, and to pay over to the corporation of the St. Margaret Memorial Hospital, hereinbefore provided to be incorporated, the sum of two hundred and fifty thousand dollars, to be added to the firm fund of said corporation, for the maintenance of said hospital as a free institution, and to pay over the balance of my residuary estate, after the payment of all bequests and devises hereinbefore made in this, my will, in equal shares to the following named persons, their heirs, legal representatives, or assigns, viz.: My wife, Alice E. Shoenberger; my brother George's wife, Ella B. Shoenberger, my sisters Anna Maria Watts and Mrs. Elizabeth S. Lytle; and my brother Edwin E. Shoenberger. If any of the provisions, devises, or bequests in this, my will, should fail by reason of any cause, then the property or effects embraced in such devise or bequests shall thereupon pass into, and form a part of, my residuary estate.’ The nineteenth item of the will is as follows: ‘Nineteenth. I hereby authorize, order, and direct my trustees and executors hereinafter named and appointed in relation to my property, real and personal, in the states of Pennsylvania, Ohio, Kentucky, and Illinois, for the purposes of this, my will, or otherwise, to sell and dispose of all or any part or parcel of my real estate within the limits of said states of Pennsylvania, Ohio, Kentucky, and Illinois, and not hereinbefore specifically devised, at public auction or private sale, on such terms, as to cash or credit, or part cash and part credit, as to them shall seem most advantageous to my estate, and to execute deeds of conveyance therefor, and in the mean time to lease the same, and to collect the rents and profits therefrom. It is my wish, and I so direct, that, as soon as may be for the best interest of my estate, my trustee and executors hereinafter named, their successor or successors, shall convert into money and productive securities all my unproductive real estate, excepting that portion hereinbefore specifically devised, and also excepting such portion of my real estate as, in the opinion of my said trustee and executors, would be likely, in the near future, to enhance in value, and excepting, especially, my eight-acre lot in the city of Pittsburgh, on part of which the said St. Margaret MemorialHospital is to be erected, and my real estate situate in and adjoining the city of Chicago, Cook county, Illinois.’ The last clause of item ‘twenty-second’ of the will is as follows: ‘And I hereby vest all the rights and title, power, authority, control, or direction and discretion conferred upon any of the executors and trustees appointed in this, my will, in the survivors and survivor of them, and in any administrators or administrator with the will annexed to whom letters may be granted, or to any trustee or trustees who may be appointed by the competent court on the death of my said executors and trustees herein named, and the survivors and survivor of them, or on any other contingency, by which my said executors, and the survivors and survivor of them, shall become incapable of acting, or cease to act.’

It is stated in the bill that the Pennsylvania Company for Insurance on Lives and Granting Annuities is a trust corporation organized under the laws of the state of Pennsylvania; that, by an act of the legislature of that state, it is authorized to accept and receive moneys or other property, real and personal, in trust, etc., and to accept and execute trusts, of any and every description, committed or transferred, with their consent, to them, by any person or persons whatsoever, and that, by a further act of said legislature, it is authorized to accept and execute the office and appointment of executors and administrators; but it is submitted...