Rankin v. Rankin
| Decision Date | 31 January 1865 |
| Citation | 1865 WL 2737,87 Am.Dec. 205,36 Ill. 293 |
| Parties | WILLIAM RANKIN et al.v.RHODES RANKIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of Fulton County.
The case is sufficiently stated in the opinion.
Ross & Winter, for plaintiffs in error.
Goudy, Judd, Boyd & James, for defendant in error.
In 1852, John Rankin died, in Fulton county, leaving a will, which contained the following clause: “My farm, thirty-five acres and upwards, to be disposed of to the very best advantage, either in a body or divided into lots, and the proceeds thereof to be divided into four equal parts, as follows: One-fourth to be divided equally among and given to the heirs of my son Stephen; one-fourth to be given to my son William; one-fourth to be given to my son Rhodes; and one-fourth, or the balance of the proceeds of said land, to be given to my daughter Abigail.” He appointed, as his executors, his son and son-in-law, William Rankin and Joseph Beans, who duly qualified, and, in 1853, as such executors, sold said land at public auction, after advertising the sale by posting notices, and by publication in a newspaper. This bill is filed by Rhodes Rankin, one of said devisees, for the purpose of setting aside said sale. It charges fraud in the sale, but these allegations are unsustained by proof, and, in their brief, the counsel for the complainant rest their case, as to its merits, entirely on the question whether the clause of the will, above quoted, authorized the executors to make the sale without invoking the aid of a court of equity.
They first, however, raise a preliminary point upon the report of the master in chancery. A decree was rendered by the court below, by consent of parties, referring the case to the master, “for hearing and determination on the merits,” and requiring him “to render a decree on the merits, and report the same.” It is urged by the counsel for the defendant in error, complainant below, that this is to be considered as an arbitration and award, by which the parties are concluded. Even if it could be considered as an award, the parties must be left to their common law remedies. It is only upon awards made in pursuance of our statute, that the court can pronounce a judgment or decree. Low v. Nolte, 15 Ill., 368. In that case, the parties had agreed that the court should enter judgment upon the award, but exceptions being taken, the court refused. Here, the party claiming the benefit of the award is the complainant who asks the decree. For that purpose the award is unavailing. The statute requires a suit pending in court, if referred to arbitration, to be submitted to three arbitrators. In this, as in other respects, the award, if it could be so called, does not conform to the statute. It is not, however, to be supposed that the parties intended anything more than an ordinary reference to a master, for the purposes of a report, to which exceptions could be filed, according to the usual practice. The reference is much broader than is common, but can still be only considered as a reference for the opinion of the master, and for the preparation of a decree by him, subject to the supervision of the court, to which he is required to report. In England, and in some of our sister states, there are certain classes of questions, judicial in their character, which are always referred to masters, such as exceptions to bills for scandal or impertinence, or exceptions to depositions. This practice is also adopted by some of our circuit judges, but the action of the master is of course always subject to the supervision of the court.
We now come to the construction of the will. No question can be, nor indeed is made, as to the intent of the testator that the land should be sold. But it is urged that the executors had no power to make the sale. “It sometimes happens,” says Williams on Executors, p. 413, ...
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Anderson, In re
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