Schwitters v. Barnes

• Decision Date: 16 February 1910
• Parties: SCHWITTERS et al. v. BARNES et al.
• Court: Illinois Supreme Court

243 Ill. 493

90 N.E. 1060

SCHWITTERS et al.

v.BARNES et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Error to Circuit Court, Woodford County; J. H. Moffett, Judge.

On resignation of the trustees of the estate of Heiio Schwitters, deceased, proceedings were instituted for the appointment of a trustee. To review the decree appointing R. Magoon Barnes as trustee, Minnie Schwitters and others bring error. Cause transferred to the Appellate Court.

Livingston & Bach, for plaintiffs in error.

R. Magoon Barnes, pro se.

COOKE, J.

Heiio Schwitters died testate in Woodford county on October 24, 1900. He devised all his property, real and personal, to three trustees (naming them), to manage, control, and invest as they should deem best, giving them full power and authority to sell and convey any of the personal or real estate and to invest the proceeds. He directed that his wife, Dorothy Schwitters, should be paid the whole of the income from the property during her lifetime or as long as she remained his widow, and that in case she should marry she be paid one-half of the income. The wife was made guardian of the minor children and was charged with their maintenance. The will provided that each of the children should be paid the sum of $600 upon arriving at the age of 21 years, out of the income devised to the wife, and that at the death of the wife, and when the youngest child had attained the age of 21 years, the trustees should either convert all the property into cash and divide the same equally among his children, or make equal division of the property among them, as said trustees should think best. The will was probated in the county court of Woodford county, and one of the trustees refused to qualify. The two remaining, one of them being the widow, accepted the trust and qualified. On February 10, 1903, these two trustees resigned and declined to act further. Dorothy Schwitters on the same day filed in the circuit court a certified copy of all the proceedings had in the probate court in said estate, together with her motion, in her own proper person, to appoint R. Magoon Barnes as sole trustee under the last will and testament of Heiio Schwitters. No bill of complaint was filed, no one made party defendant, and no notice of the application given to any of the parties in interest. On that same day the motion of Dorothy Schwitters was sustained, and the circuit court entered a decree appointing R. Magoon Barnes as sole trustee, with all the power and authority which the will had conferred upon the trustees named therein, and with directions to execute the trusts named in said will. It was also decreed that the two testamentary trustees forthwith execute and deliver to Barnes, as trustee, a quitclaim deed for the real estate owned by the deceased at the time of his death (describing the same), conveying it under the terms, conditions, limitations, and trusts named in the will. Barnes qualified immediately; the same decree having approved his bond. After Barnes had so qualified, and still upon the same day, the county court accepted the resignation of Dorothy Schwitters...