Reinberg v. Heiby

• Decision Date: 22 November 1949
• Docket Number: No. 31156.,31156.
• Citation: 404 Ill. 247,88 N.E.2d 848
• Parties: REINBERG v. HEIBY et al.
• Court: Illinois Supreme Court

404 Ill. 247

88 N.E.2d 848

REINBERG

v.HEIBY et al.

No. 31156.

Supreme Court of Illinois.

Nov. 22, 1949.

Action by Minnie Reinberg against Laura Heiby and others to reform a trust agreement and two deeds to conform with the intention and understanding of the deceased donor.

The Superior Court, Cook County, John J. Lupe, J., entered a decree for the plaintiff, and the named defendant appealed.

The Supreme Court, Daily, J., held that reformation had been properly granted and affirmed the decree.Paul W. Schroeder, of Chicago (Ward H. Harris, Chicago, of counsel), for appellant.

Cummings & Wyman, of Chicago (Austin L. Wyman, Harold Engstrom, and K. W. Teuthorn, Chicago, of counsel), for appellee.

DAILY, Justice.

The plaintiff, Minnie Reinberg, brought an action in the superior court of Cook County against the defendants, Laura Heiby and George F. Hunter, as trustee, seeking reformation of a trust agreement and two deeds to conform to the intention and understanding of the donor, John Jarmuth, deceased. Defendants interposed separate answers denying that plaintiff was entitled to the relief sought. The cause was referred to a master in chancery who heard the evidence and recommended the entry of a decree in favor of plaintiff. Objections of defendant Laura Heiby to the master's report were ordered to stand as exceptions. A decree was entered overruling the exceptions and adjudging that the trust agreement and the deed to defendant Heiby be reformed, and that Hunter, as trustee, execute and deliver to plaintiff a new deed. Laura Heiby, hereafter referred to as defendant, prosecutes this appeal. A freehold is necessarily involved.

Plaintiff and defendant are sisters. Prior to 1937, their father, John Jarmuth, owned approximately twenty-four acres of land in the village of Niles Center, now Skokie, in Cook County. The land, although contiguous, had been acquired as two separate tracts. Of these, one tract, containing about four acres, lies west of Carpenter Road. The other tract, containing approximately twenty acres, abuts on Touhy Avenue. In July, 1937, Jarmuth engaged Bernard F. Knauer, a licensed public surveyor of this State, to make a survey of the land and divide the twenty-four acres into two equal shares for the reason he had two daughters whom he desired to share his land equally. Knauer took the legal description furnished by Jarmuth, compared it with the records in the office of the recorder of deeds of Cook County, made a survey and prepared a plat of survey dividing the property into two tracts, each containing approximately twelve acres. Knauer devised or created legal descriptions for the two tracts of twelve acres each and designated them ‘Tract A’ and ‘Tract B.'

Thereafter, Jarmuth consulted Edward LeVine, an attorney, with respect to disposing of his real estate so as to obviate probate proceedings. LeVine suggested the creation of a trust to accomplish this purpose. Conferences and consultations followed. Jarmuth gave LeVine a blue-print copy of the plat of survey prepared by Knauer, pointing out that the property had been divided into two approximately equal parcels, designated ‘A’ and ‘B’ on the survey, adding that he wished his property to be divided between his two daughters. LeVine asked for and was given documents of title to the property showing how it had been originally acquired. He ordered and obtained opinions of title covering the tracts originally acquired by Jarmuth.

In November or December, 1937, a family gathering in Jarmuth's home considered the division of the property surveyed. Jarmuth, his wife, plaintiff and her husband, and defendant and her husband were present. Jarmuth told his daughters he wanted to divide the land in controversy equally between them. He produced three slips of paper marked ‘A,’ ‘B,’ and ‘Blank,’ and conducted a drawing. At their father's request, each of the daughters drew a slip. Defendant drew the slip designated ‘A.’ Plaintiff drew the slip bearing the legend ‘Blank,’ whereupon Jarmuth gave her the third slip marked ‘B.’ He then showed them the plat of survey prepared by Knauer and explained that ‘A’ was the Touhy Avenue property and ‘B,’ the Carpenter Road property.

On January 29, 1938, LeVine prepared a deed in trust from Jarmuth and his wife to George F. Hunter, trustee, conveying to him the twenty-four acres, describing the property in accordance with the descriptions used at the time it was acquired by Jarmuth. This instrument designated the original tract of four acres as ‘Tract B’ and the original tract of twenty acres as ‘Tract A.’ The deed in trust was caused to be recorded. At the same time the deed in trust was prepared. LeVine also prepared a trust agreement between Jarmuth and Hunter reciting that the trustee had taken title to the four-acre tract as acquired by Jarmuth and referred to it as ‘Tract B’ and to the twenty- acre tract and referred to it as ‘Tract A.’ The trust agreement provided, further, that, upon Jarmuth's death, the trustee should convey the title to ‘Tract A’ to defendant and title to ‘Tract B’ to plaintiff. Plaintiff and defendant signed the trust agreement as beneficiaries and each was given a copy.

The designations of the four-acre tract and the twenty-acre tract, as acquired originally by Jarmuth as ‘Tract B’ and ‘Tract A,’ respectively, were contrary to the instructions given by Jarmuth to his attorney, LeVine. These instructions were, instead, to designate tracts ‘A’ and ‘B’ conformably to the survey prepared by Knauer. LeVine testified that he was at a loss to say how the mistake occurred, saying ‘The survey was supposed to designate the description of the property. The mistake in the legal description, I must admit, was my own and the only thing that I can account for at the present time is the fact that the legals, as designated in the trust agreement, correspond exactly to the legals after the title was taken on the two separate instruments and subsequently conveyed into John Jarmuth.’ In short, an inadvertent mistake was made by LeVine in the capacity of scrivener.

Jarmuth died on June 8, 1943, and, thereafter, Hunter caused trustee's deeds to be prepared and delivered to plaintiff and defendant. The deed to defendant covered the tract of twenty acres described as ‘Tract A’ in the trust agreement and the deed to plaintiff described the four acres designated as ‘Tract B’ in the trust agreement. The trustee's deed to defendant has since been placed of record. Plaintiff did not cause the deed to her to be recorded.

By her amended complaint, the plaintiff, Minnie Reinberg, alleged that, by mistake of the scrivener and contrary to the expressed intention of Jarmuth, the division of the property into tracts ‘A’ and ‘B’ was incorrectly made; that the intention of her father, the donor, at the time the trust agreement was executed, was that the tracts ‘A’ and ‘B,’ described and referred to in the trust agreement, should be legally described as set forth in the plat of survey made by Knauer and, specifically, that each of the two tracts should contain approximately twelve acres; that she, plaintiff, did not know an error had been made in the trust agreement and did not learn that the property had not been equally divided until delivery of the trustee's deed to her; that the legal title to the property described in the trustee's deed to defendant as ‘Tract A’ is now vested in her by virtue of this deed, and that equity requires the trust agreement and the two deeds from the trustee to defendant and herself be reformed and corrected to conform to the intention and understanding of the donor.

The chancellor found that the equities were with plaintiff; that the reformation sought by her was not against the interest of the grantor or those claiming through and under him as heirs, devisees, purchasers, creditors or subsequent grantees but, on the contrary, was in the interest of the grantor in seeking to carry out his true intention, as set forth in the trust agreement he made for the benefit of both plaintiff and defendant who, as volunteers, were claiming under this same instrument; that the mistake sought to be reformed by plaintiff was a mutual mistake of the grantor and plaintiff and defendant, the donee beneficiaries,at the time the trust agreement was executed as a family settlement, and that ‘under either such circumstances' reformation should be granted. Accordingly, the decree ordered that the trust agreement and the legal descriptions therein be reformed and corrected; that the trustee's deed to defendant be reformed and corrected so that the legal description of the property conveyed thereby conforms to the...