Shippert v. Shippert
| Decision Date | 17 April 1939 |
| Docket Number | No. 25034.,25034. |
| Citation | 20 N.E.2d 597,371 Ill. 267 |
| Parties | SHIPPERT et al. v. SHIPPERT et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit for partition of real estate by Edward I. Shippert and others against Harry W. Shippert, Wiley G. Shippert, and others, wherein the guardian ad litem of Earl W. Baker filed a counterclaim. From an adverse decree, Wiley G. Shippert appeals.
Affirmed.Appeal from Circuit Court, Lee County; Albert H. Manus, judge.
Clyde Smith, of Dixon, for appellant.
Warner & Warner, John P. Devine, and J. C. Ryan, all of Dixon (Henry C. Warner and Morey C. Pires, both of Dixon, of counsel), for appellees.
This an appeal to review a decree in a suit for partition of real estate, entered by the circuit court of Lee county, partitioning three farms in that county, of which John Shippert died seized, and which he left by will to his ten children and one grandchild. Four of the children are incompetents and the grandchild is a minor.
John Shippert devised these farms to Martha Shippert, his widow, for her life, and upon her death to go to his children. Martha Shippert died in January, 1932. Shortly after her death all of the children, with the exception of Harry W. Shippert, a son, and Olive A. Baker, a daughter, entered into an agreement whereby one of the farms, known in this record as the ‘home farm,’ should be retained by the heirs-at-law of John and Martha Shippert during the lifetime of any of the said children, and should not be sold at any time prior to the death of the last survivor of the four incompetent children without written consent of all the parties. Later, Harry W. Shippert signed this agreement. Olive A. Baker died leaving a minor son, Earl W. Baker, who appears in this proceeding by guardian ad litem.
The petition in this case was signed by Edward I. Shippert and Estella M. Borncamp, as conservators of the four incompetent children, all of whom are adults. A guardian ad litem was appointed for the incompetents, and a trustee for unknown devisees of the last will and testament of Martha Shippert and the unknown heirs of Martha Shippert was also appointed. A counter-claim was filed by the guardian ad litem praying that the home farm be set off to the incompetents as their share of John Shippert's estate. Ansers were filed thereto by the original plaintiffs and certain defendants. Appellant here, Wiley G. Shippert, a son, had entered his appearance in the cause and had admitted all of the allegations of the original complaint, and, in effect, joined in the prayer thereof. When the counterclaim was filed, he was ruled to plead instanter and, on his failure so to do, default was entered against him. He did not receive notice of the filing of the counter-claim and complains here that the court had no jurisdiction to enter a decree on the counter-claim. His counsel says that he had no notice of it and was not bound by the court's action thereon. None of the parties appeared to contest either the original bill or the counter-claim. Commissioners were appointed and reported fixing the value of the three farms and the interests of the incompetents therein, and recommending that the home farm be decreed to the incompetents as tenants in common, together with an owelty of $160.
The guardian ad litem for the incompetents objected to the owelty and on hearing the court fixed the amount of owelty to be paid to them at $1600. A sale was conducted of the other two farms, which appellant attended, and at which he bid on one of the farms. No objection was offered by him to the report of the commissioners recommending that the home farm be set off to the incompetents. The two farms sold brought in excess of $6000 over the valuation placed upon them by the appraisal of the commissioners. The first objection made by appellant to the proceedings was filed to the report of sale. By that objection he contended, and contends here, that the court was without authority to set off the home farm to the incompetents, as was done, but if it be set off in kind it should have been to all the heirs, in common. He also complained that he did not have notice or knowledge of the filing of the counter-claim. He is deemed to have had notice of the report filed by the commissioners recommending that the home farm be set off to the incompetents. This was some time prior to the decree of the chancellor.
His principal contentions, here, are that the court had no power to enter a decree such as was entered, and that he did not have notice of the counter-claim. In support of his contention that the court was without power to enter the decree he cites sections of the statute pertaining to partition, and argues that there is no method other than that prescribed by the statute, by which partition may be had in this State. Section 43 of the statute relating to partition, as amended in 1937 (Ill.Rev.Stat.1937, chap. 106, § 42, p. 2342), is as follows: Counsel for appellant argue that...
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Carlyle v. Jaskiewicz
...Thus, in a suit for partition, a court of equity takes jurisdiction to do complete justice between the parties (Shippert v. Shippert (1939), 371 Ill. 267, 20 N.E.2d 597), and one of the remedies available to it, should the equities so require, is imposition of an equitable lien upon the pro......
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Schwartz v. City of Chicago
...had been condemned and upon its own inspection which revealed the building was still standing. The City cites Shippert v. Shippert (1939), 371 Ill. 267, 20 N.E.2d 597, but that case affords a poor analogy to the present one. Shippert pertained to a petition to set aside a decree partitionin......
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Swogger v. Taylor
...to one owner and the remainder of the property sold with a division of the proceeds among the remaining owners. See, Shippert v. Shippert, 371 Ill. 267, 20 N.E.2d 597. In devising a partition plan without causing great prejudice to the owners, the court, in determining if the property is to......
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O'Malley v. Walker
...Fread v. Hoag, 132 Ill.App. 233; Cashen v. Cashen, 171 Ill.App. 101; Dunshee v. Dunshee, 179 Ill.App. 290; see also Shippert v. Shippert, 371 Ill. 267, 20 N.E.2d 597; and cf. McNemar v. McNemar, 143 Ill.App. 184, 187. Also where the particular error is not substantial or the answer otherwis......