Re Qua v. Graham

• Decision Date: 19 October 1900
• Citation: 187 Ill. 67,58 N.E. 357
• Parties: RE QUA et al. v. GRAHAM.
• Court: Illinois Supreme Court

187 Ill. 67

58 N.E. 357

RE QUA et al.

v.GRAHAM.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Suit by Alice M. Graham, as administratrix of the estate of James E. Graham, deceased, against Charles H. Re Qua and others, executors, etc., of Annie Elizabeth Nichols, deceased. From a decree of the appellate court (86 Ill. App. 566) affirming a decree in favor of complainant, defendants appeal. Affirmed.

Partridge & Partridge (Walker & Payne, of counsel), for appellants.

B. W. Ellis & Son, for appellee.

This is a creditors' bill filed by Alice M. Graham, administratrix of the estate of James E. Graham, deceased, against Charles H. Re Qua and Newton A. Partridge, executors of the last will and testament of Annie Elizabeth Nichols, deceased, and John F. Nichols, to subject an annuity given to John F. Nichols by the will of his wife, Annie Elizabeth Nichols, to the payment of a judgment against John F. Nichols. The will of Annie Elizabeth Nichols, among other devises and bequests, bequeaths to her husband, John F. Nichols, ‘the annual sum of $1,800 during his natural life, to be paid quarterly, in equal installments of $450 each, and deposited to his credit in the Merchants' Loan and Trust Company, or some other Chicago bank, subject to his order, which annuity shall be in lieu of all other interest in my estate to which he would be entitled.’ By codicil attached to said will it was further provided: ‘I have already advanced to my husband, and expended for his use, so large an amount, and the probably net income of my estate will be so small, that I do not deem it just to burden my daughters, Catharine Wheaton Haven Ainley and Alice Haven Re Qua, with so large an annuity for his benefit as is provided by said will; and I direct that the yearly or annual sum of $1,200 shall be paid to him in the same manner in said will provided for, which provision shall be in place and in lieu of all estate, claim, right, and provision to which he is or may or would otherwise be entitled, either by virtue of the law, or under the provisions for his benefit contained in my will.’ The will also makes a division of the real and personal property of the testatrix, and appoints Charles H. Re Qua and Newton A. Partridge executors thereof. The estate consisted of real estate valued at $37,500, and personal property valued at $33,592.67. It appears from the master's report that John F. Nichols is 70 years of age, is infirm in health, has no property or business, and is physically incapable of following any occupation for a livelihood; that said annuity is the provision given by said testatrix out of her separate estate for the support and maintenance of said Nichols during his natural life, and that the whole of said annuity has been and is expended by him for his support and maintenance, and is only sufficient to support and maintain him in the manner of living to which he is and has been accustomed; and that said Nichols is lacking in business capacity, and said testatrix had taken her affairs out of his hands prior to her death. The superior court decreed such annuity should be applied in payment of said judgment, which decree has been affirmed by the appellate court for the First district, and this appeal is prosecuted to reverse such judgment of affirmance.

HAND, J. (after stating the facts).

It is contended by appellants that the provision made for John F. Nichols by the will of Mrs. Nichols is such that it is expressly excepted under the statute regarding creditors' bills (Rev. St. c. 22, § 49), which provides, ‘except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself,’ and that appellee cannot reach the annuity in question by her bill. In order to bring a case within the exception of the statute, it is necessary that the trust fund proceed from some person other than the defendant himself. If the trust fund in this case proceeded from John F. Nichols himself, it does not fall within the exception of the statute, and is not protected. The annuity in question was a mere offer by Mrs. Nichols to her husband for the purchase of his interest in her estate. He was at liberty to accept or reject the same, and, having accepted it, he took it as a purchaser; and it is subject to the payment of his debts, the same as any other legacy. In the case of Carper v. Crowl, 149 Ill. 465, 36 N. E. 1040 (on page 479, 149 Ill., page 1043, 36 N. E.), we say: ‘The provision made by the will was therefore in lieu of, and not in excess of, her rights in her husband's estate as widow; and she took the same, not as a beneficiary under the will, but as a purchaser.’ And in Blatchford v. Newberry, 99 Ill. 11 (on page 62), it is said: ‘A provision by will in lieu of dower is in fact and in legal effect a mere offer by the testator to purchase out the dower interest for the benefit of his estate.’ In Isenhart v. Brown, 1 Ed v. Ch. 413, which is referred to and indorsed by the court in Carper v. Crowl, supra, the court, in speaking of a devise in lieu of dower, said: ‘It is the price put by the testator himself upon the right, and which she is at liberty to accept. Her relinquishment of dower forms a valuable considerationfor the testamentary gifts. In this point of view, she becomes a purchaser of the property left to her by the will. So, on the other hand, the husband offers a price for his wife's legal right of dower, which he proposes to extinguish; and, if she agrees to the terms, she relinquishes it, and is entitled to the price. It is therefore a matter of contract or convention between them, and what she thus becomes entitled to receive is not by way of bounty, like other general bequests, but as purchase money for what she relinquishes.’ In the case of Bank v. Chambers, 96 Mo. 459,...