Roth v. Michalis

• Decision Date: 16 June 1888
• Citation: 17 N.E. 809,125 Ill. 325
• Parties: ROTH v. MICHALIS et al.
• Court: Illinois Supreme Court

125 Ill. 325

17 N.E. 809

ROTH

v.MICHALIS et al.

Supreme Court of Illinois.

June 16, 1888.

Error to circuit court, St. Clair county; AMOS WATTS, Judge.

Wm. Winkleman, for plaintiff in error.

J. M. Hay, A. S. Wilderman, and J. M. Hamill, for defendant in error michalis.

W. C. Kueffner, for defendants in error Gotschalk and others.

MULKEY, J.

This writ of error is prosecuted to reverse a decree of the circuit court of St. Clair county dismissing, on the hearing, a bill in equity, filed by the plaintiff in error against the defendants in error. The object of the bill is to subject an undivided half of the estate of George Heberer, after the payment of debts, to an alleged trust. The facts disclosed by the bill, and established by the proofs, are in substance these: In the year 1867, and prior thereto, George Heberer and his wife, Sarah, were living in Belleville, St. Clair county. George was then the owner of property, real and personal, to the amount of about $20,000. Sarah was a widow, and the owner of some property, when George married her. He had nothing, though he proved to be a quite thrifty, successful business man. Neither of them had any children, or descendants of children. On the 5th day of November, 1867, George Heberer executed and delivered to John M. Stolberg the following instrument: ‘Know all men by these presents, that I, George Heberer, of Belleville, St. Clair county, Ill., for and in consideration of the love and affection which I bear to my wife, Sarah Heberer, and to her relations, and also in the sum of one dollar, to me paid by John M. Stolberg, trustee, for the purpose hereinafter set forth, at and before the ensealing and delivery hereof, the receipt whereof I do hereby acknowledge, have given, granted, released, and confirmed, and by these presents do give, grant, release, and confirm, unto the said John M. Stolberg, trustee, the undivided half part (1/2) of my real and personal estate, claims, money, and demands, which I may leave at the time of my death, after the payment of all my just debts. To have and to hold the said undivided half of my real and personal estate, money, claims, and demands, which I may leave at the time of my death, after the payment of my just debts, in trust for the heirs of my wife, the said Sarah Heberer: provided, however, if I, the said George Heberer, should die before my wife, the said Sarah Heberer, then, and in that case, this deed is to be null and void, and of no effect: and provided, also, that I hereby resume to myself the absolute and free control and disposal of all my real and personal estate, claim, money, and demands during my life-time. In witness whereof I, the said George Heberer, have hereunto set my hand and seal this, the 5th day of November, A. D. 1867. GEORGE HEBERER. [Seal.]’ Stolberg at no time ever exercised, or attempted to exercise, as trustee or otherwise, any authority or control over the property owned by Heberer, at the date of the instrument, or which he subsequently acquired, and the evidence shows that Heberer contrived to exercise the same dominion and control over it after the making of the instrument that he did before. Thus, on the 26th of February, 1868, Heberer and his wife executed a deed for lot 46, on Richland street, in Belleville, to John B. Willie, which was owned by Heberer at the time of the conveyance to Stolberg, the consideration, as expressed in the deed, being $3,350. Shortly after the conveyance to Stolberg, Heberer and his wife moved from Belleville to Freeburg, a village in the same county, where they lived together up to the time of her death, which occurred on the 1st day of September, 1878. She died intestate, leaving the following nephews and nieces as her next of kin, and, with the exception of her husband, her only heirs at law, namely: Maria Gotschalk, Pauline, Louis, and Christopher Wiegand, Maria Westenberger, and Adam Schrodt, defendants in error, and Adam Roth, plaintiff in error. About three months after her death George Heberer married Louisa Knampert, now Louisa Michalis. On the 24th day of August, 1885, George departed this life testate. By his will, which was duly admitted to probate, he gave to his wife his entire estate, with the exception of two small legacies, amounting to $55 only, and nominated her as his executrix. On the 15th day of December, 1885, his widow intermarried with the defendant in error Louis Michalis. It appears that of the personal assets belonging to the estate there is now on hand $6,841.18; also the following real estate: Lot 29, Abend's Third addition to Belleville, valued at $1,500, and lot 11, village of Freeburg, valued at...