Sartain v. Davis
| Decision Date | 08 December 1926 |
| Docket Number | No. 16825.,16825. |
| Citation | 323 Ill. 269,154 N.E. 101 |
| Parties | SARTAIN v. DAVIS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Partition suit by Charles Davis Sartain against J. W. Davis and others, wherein Robert Myers was substituted as party complainant, and filed an original bill in the nature of a supplemental bill, and wherein named defendant and another filed a cross-bil. From the decree rendered, the named defendant and another appeal.
Decree reversed, and cause remanded, with directions to dismiss original bill in nature of supplemental bill as amended and enter decree on cross-bill.
Appeal from Circuit Court, Saline County; A. W. Summers, judge.
John H. Meyer, of Harrisburg, for appellants.
W. W. Wheatley, of Harrisburg, for appellee.
DE YOUNG, J.
Thomas J. Davis, a resident of Saline county, died testate July 3, 1923. He left as his only heirs at law his twelve children, Nancy V. Clark, Sarah E. Hughes, Tennessee C. Karnes, W. W. Davis, Thomas O. Davis, Harley Davis, Charles A. Davis, James M. Davis, Roscoe C. Davis, J. W. Davis, B. F. Davis and Pearl I. Berry, and seven grandchildren, Alta M. Bovinet, Richard Davis, Bonnie Davis, Bernice Davis, Aileen Davis, Nolen Davis, and Marjorie Davis, the surviving children of Samuel O. Davis, a deceased son of the testator, and two great-grandchildren, Clyde Davis and Helen Davis, the children of Clyde Davis, a deceased son of Samuel O. Davis, deceased. The testator at the time of his death owned different parcels of land aggregating 164 1/2 acres, and some personal property. His will provides in part:
‘Second-After the payment of such funeral expenses and debts I give, devise and bequeath to my sons and daughters [naming the twelve above mentioned] each the one-thirteenth part of my estate which shall remain at the time of my decease, and I hereby give, devise and bequeath to the children of my deceased son, Samuel O. Davis, the one-thirteenth part of my estate; that is to say, it is my will that at the time of my decease such property as I may have remaining, of every kind and nature whatsoever, be, by my executor, hereinafter named, divided into thirteen equal portions and that one of said portions be, and the same is hereby devised and bequeathed to each of my said children who shall be living at the time of my decease, and that one of said portions is hereby devised and bequeathed to the children of such deceased son or daughter as the case may be, it being expressly herein provided that the one-thirteenth part of my estate shall be divided equally between the children of my deceased son, Samuel O. Davis.
J. W. Davis was named in the will as executor, but upon his application to the county court his brother B. F. Davis was appointed coexecutor with him, and letters testamentary were issued to them on August 6, 1923. Subsequently to the execution of his will Thomas J. Davis, the testator, advanced $600 to the children of Samuel O. Davis, deceased, on account of their shares, and the receipt of the widow was taken therefor. Within two months after the testator's death his daughter Sarah E. Hughes died, leaving her husband, Richard T. Hughes, and four children, Lenora C. Morten, Monta A. Mills, Charles Davis Sartain, and Mary Ellen Hughes surviving.
On January 19, 1924, Charles Davis Sartain filed a bill for partition of the lands left by the testator. Answers were filed on behalf of the minor defendants by their guardians ad litem. J. W. Davis and B. F. Davis, as executors, filed a joint and several answer, and the bill was taken as confessed by all the other adult defendants, including J. W. and B. F. Davis individually. The executors also filed a cross-bill, and later an amended cross-bill, in which they alleged that a trust was created in the person named in the will as executor to divide the lands among the persons designated in the will, and, of such division could not be made without prejudice to them, then to sell the lands and divide the proceeds of sale in the manner specified. The executors further alleged in their amended cross-bill that the lands could not be divided, and, in order to carry out the trust which they asserted had been created by the will, they asked to be directed, as trustees, to sell the lands at public or private sale, and to divide the proceeds among the beneficiaries under the will. A demurrer to the amended cross-bill, averring that the latter on its face showed no power, express or implied, in either or both of the executors to sell the lands devised by the will, was sustained. The executors elected to stand by their amended cross-bill, and the court dismissed both the cross-bill and the amended cross-bill for want of equity. The executors then asked, and obtained, leave to file an amended answer to the original bill. In this answer they averred the purchase by B. F. Davis on February 10, 1924, of the interest of Sartain, the original complainant, in the lands sought to be partitioned. Sartain filed exceptions to the amended answer, alleging that the executors had knowledge of the conveyance of his interest to B. F. Davis at the time they filed their answer, and that the defense interposed by the amended answer was inconsistent with the facts averred in their original answer. The court overruled the exceptions, and the complainant was directed to plead by a certain day. The time was enlargedfor that purpose, but he elected to stand by his exceptions to the amended answer. Within the time allowed so to plead, Robert Myers, one of the defendants to the original bill, made a motion for leave to become a party complainant and to file an original bill in the nature of a supplemental bill. The motion was supported by a petition which set forth that he had lately acquired the interest of Monta A. Mills, another original defendant, in the lands sought to be partitioned. Leave was granted, the original bill in the nature of a supplemental bill was filed, Myers was allowed the benefit of the proceedings taken in the cause, and to the extent that Sartain was a party complainant the bill filed by him was dismissed for want of equity at his costs. J. W. and B. F. Davis, individually and as executors, demurred to the original bill in the nature of a supplemental bill, but the demurrer was overruled. They filed an answer, and it was followed by their cross-bill. The original bill in the nature of a supplemental bill was amended. The allegations of the cross-bill amplified those of the earlier one, and the prayer sought: (1) The court's aid and advice concerning the manner in which the trust alleged to have been created by the will should be executed and whether the advancement made to the children of Samuel O. Davis, deceased, should be considered a part of the testator's estate; (2) an order for the sale of the lands under the direction of the county court and a division of the proceeds of sale among the beneficiaries under the will, their legal representatives or assigns, in the same proportions as the testator's personal property was by the provisions of the will to be distributed; and (3) general relief. Robert Myers answered the cross-bill, denying that the will created a trust in J. W. Davis as executor, or in B. F. Davis, also appointed executor by the county court, or in both of them jointly, to divide the lands, or to sell them and make division of the proceeds of sale. Answers in behalf of the minor defendants to the supplemental and cross-bills were filed by their guardians ad litem. Both bills were taken as confessed by the adult defendants and cross-defendants, who failed to answer. A hearing followed, which resulted in a decree for partition in accordance with the prayer of the original bill in the nature of a supplemental bill as amended, and the cross-bill was dismissed for want of equity. From that decree J. W. Davis and B. F. Davis, individually and as executors, prosecute this appeal.
[2] Appellants first contend that the circuit court had no power to proceed after it appeared that the complainant, Sartain, had divested himself of his interest in the lands sought to be partitioned. A suit in equity is not necessarily abated by showing that the original complainant's interest in its subjectmatter has ceased to exist. Such a condition results in a suspension, and not a determination, of the suit. Story's Eq. Pl. (10th Ed.) § 354; Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6802;Clarke v. Mathewson, 37 U. S. (12 Pet.) 164, 9 L. Ed. 1041; 1 Corpus Juris, p. 27. In case of a transfer of an interest pendente lite, the proper parties may be brought before the court. Hoxie v. Carr, supra. Where the new bill is not a mere continuation of the former suit, but embraces new matters, and brings in a new title, it is to that extent an original proceeding. The person to whom an interest is so transferred should supply the defect of parties by filing an original bill in the nature of a supplemental bill. Story's Eq. Pl. (10th Ed.) § 330, 348, 349; Cooper's Pl. star page 77; Mitford & Tyler's Pl. & Pr. in Eq. (1876 Ed.) p. 164. The conveyance of Sartain's interest to B. F. Davis left the proceeding without a complainant, but the suit was not dismissed. Robert Myers acquired the interest of Monta A. Mills, who was a defendant to the original bill....
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