Simpson v. Manson

• Decision Date: 23 October 1931
• Docket Number: No. 20791.,20791.
• Citation: 178 N.E. 250,345 Ill. 543
• Parties: SIMPSON et al. v. MANSON.
• Court: Illinois Supreme Court

345 Ill. 543

178 N.E. 250

SIMPSON et al.

v.MANSON.

No. 20791.

Supreme Court of Illinois.

Oct. 23, 1931.

Commissioners' Opinion.

Separate suits by Edward J. McGarry, by Jane Simpson, and by Elizabeth Emerson, against Mary Manson, in which defendant filed cross-bills. From adverse decrees, defendant appeals.

Reversed and remanded, with directions.Appeal from Superior Court, Cook County; William J. Lindsay, judge.

George D. Kimball, of Chicago, for appellant.

Harry C. Kinne and Joseph H. McGarry, both of Chicago, for appellees.

EDMUNDS, C.

On February 2, 1924, Edward J. McGarry filed a bill in the superior court of Cook county for partition of certain real estate on East Seventy-Fifth street, in the city of Chicago, hereinafter referred to as the Seventy-Fifth street property. On February 15, 1924, Jane Simpson filed a bill in the same court to cancel a quitclaim deed to said property executed by her September 7, 1923, and also praying partition and full and complete accounting. On February 18, 1924, Elizabeth Emerson filed a bill in the same court to cancel a quitclaim deed to said property given by her and her husband and Martin McGeary and his wife on April 21, 1905, and also praying partition and full and complete accounting. These suits were consolidated. Mary Manson, named as defendant in all the bills, filed an answer, and also a cross-bill praying that all records of the probate court of Cook county and the county recorder showing an interest in other persons be removed as a cloud on her title to the property. The cause was referred to a master, who heard evidence, found that the above-mentioned deeds had been obtained by fraud, and recommended that a decree be entered in accordance with the prayers of the bills. From a decree so entered, Mary Manson has appealed.

On October 2, 1892, Annie T. McGeary died seized of said property. She left a will, which, after making several specific bequests, including a piano and music to Mary Emerson, daughter of Elizabeth Emerson, provided as follows: ‘I give, devise and bequeath all the rest, residue and remainder of my estate-real, personal and mixed, wheresoever situate, to my sister, Mary Manson, of Chicago, Cook county, Illinois, her heirs, executors, administrators and assigns in trust, however-to, upon and for the uses, trusts, intents and purposes, and with and subject to the limitations and conditions hereinafter mentioned, that is to say, to take possession of my real and personal estate, collect the rents, issues and profits thereof, as well as interest on my bond, notes, mortgages or other securities; and after payment of all taxes, insurance, repairs and all other necessary expenses, to apply the surplus or such part thereof as may be necessary to the care, nurture, support and maintenance of my beloved mother, Ann McGeary, in such manner as may be suitable for her in her condition of life; and after her death to see that she be properly interred.’ The will gave appellant power to sell realty and personalty, the proceeds of such sale or sales to be applied toward the support of the mother, if necessary, and the remainder to be reinvested. It also provided as follows: ‘It is my will that after the death of my beloved mother that my estate so held in trust by my trustee aforesaid, be divided among my brothers and sisters, Martin McGeary, Michael McGeary, Elizabeth Emerson, and Mary Manson, share and share alike, the heirs of any one of whom who may have deceased in the meantime to take the share to which said decedent would have been entitled.’

Upon the death of Annie T. McGeary appellant took possession of the Seventy-Fifth street property and also of another parcel of real estate owned by Annie on Dickson street. The Seventy-Fifth street property was then incumbered by several mortgages, aggregating in amount $4,000. A two-flat frame, stove-heated building thereon was unfinished but was completed by appellant. Appellant collected all the rents from the Seventy-Fifth street and Dickson street properties, and paid all interest, taxes, and expenses. She sold the Dickson street property in 1896 for about $2,400. She listed the Seventy-Fifth street property for sale, but it was not sold. Subsequently she paid off the $4,000 incumbrances. She never accounted to the residuary legatees or their heirs for the rents collected or for the proceeds of the Dickson street property, nor was any accounting ever demanded of her until the institution of the present suits. The master found the buildingon the Seventy-Fifth street property to be, at the time of the hearing, nearly forty years old and in a bad state of repair, but further found the present value of the property to be about $20,000, ‘on account of increase in value of vacant property in that part of Chicago.’ After Annie's death, the mother stayed part of the time with appellant, part of the time with Elizabeth Emerson, and part of the time at a hospital. Appellant paid the hospital expenses, and, when the mother stayed at Elizabeth's, appellant paid or credited Elizabeth with $10 per month for the mother's board. The mother died intestate on April 27, 1901. The above-named residuary legatees were all living at that time. Michael McGeary died intestate on September 15, 1901, leaving as his heirs the above-named residuary legatees who survived him, and also Jane Simpson, a half-sister, complainant herein, and Patrick McGarry, a half-brother. Patrick died intestate on July 28, 1904, leaving Edward J. McGarry, the original complainant herein, and others as his heirs.

At the hearing appellees introduced in evidence the foolowing letter, written October 19, 1904, by Bastrup & O'Neill, attorneys, to Martin McGeary: ‘We have written you several times in reference to the property 105-75th street, before putting Mrs. Manson to the expense and trouble of straightening up the matter and in order to preventthe expense incident to foreclosure. We would like to see you, and we would like to see you this week. Please call at our office and see Mr. O'Neill and he will talk the matter over with you, and oblige.’ Hugh O'Neill, who had not acted in the administration of Annie's estate, testified that he was appellant's attorney at the time he wrote the letter; that he drew the quitclaim deed which the Martin McGearys and the Emersons subsequently executed; that there were several conferences, participated in by witness, appellant, and the Emersons, before it was executed; that there was some discussion about Michael McGeary's death and the possible interest of his heirs; that Mrs. Emerson stated she would not sign the deed until appellant released Emerson from a claim of $100 which appellant had against him; that witness told Martin MeGeary that under the will Martin had a vested remainder, which could only be conveyed by deed; also that Michael had an interest as a vested remainderman which would go to Michael's heirs, of whom Martin was one, and before the title could be put in appellant's name Martin would have to sign the deed; that witness told Mrs. Emerson that she had a remainder under the will, and that she also had an interest as heir of Michael, which entire interest she could convey by quitclaim deed; that appellant said in Mrs. Emerson's presence that the Seventy-Fifth street property was very heavily incumbered, and that she had been paying charges and taxes on the property, and at that time it was not more than good security for the indebtedness or what she had paid out in handling it; that Emerson stated he had seen it; that appellant asked Mrs. Emerson to see the property and say what should be done with it and see at that time that all debts had been paid by her, what bills had been paid, and what the carrying charges were, claiming that she had spent more money than the property would represent; that appellant mentioned in this connection specific amounts of money, which witness could not recall at the time of testifying;that appellant told Mrs. Emerson ‘she wanted a quit-claim deed to the property-to become the owner of it;’ that appellant said it would not reimburse her for all the expenditures, and she wanted a conveyance of the title to her; and that Emerson said he thought it would not be worth much more than what was against it.

Elizabeth Emerson testified that at the time of the death of her mother she lived near the Seventy-Fifth street property, passed it very often, and was often in the house; that at the time the quitclaim deed was executed appellant said the property was about to be foreclosed on a mortgage, and appellant was about to lose it, and wanted witness and her husband to sign the deed, which they did in the lawyer's office; that witness did not know anything about her interest in the property, and knew nothing about it until 1923, when appellant told her she had been to New York looking up Patrick's heirs, and that witness never heard of a will of Annie T. McGeary or any explanation at all about it. Appellant's testimony as to what she told Mrs. Emerson at the time she asked for the deed was in substantial accord with that given by Mrs. Emerson.

Elizabeth M. Hussey, appellant's daughter, testified that Elizabeth Emerson received Annie's piano; that it was in Mrs. Emerson's home; that Mrs. Emerson's daughter, Mary, received Annie's books, library, and bookcase; and that a month or two after Annie's death Mrs. Emerson said there were some payments due on the piano which Mrs. Emerson thought should have been paid out of the estate. Witness further testified that from the time of Annie's death witness and her mother kept a record of receipts and disbursements covering the Seventy-Fifth street and other estate property, witness keeping the record in a book, making every entry in ink; that the last time she saw the book was in 1913; that at the time of Ann McGeary's death, in 1901, between $6,000 and $7,000 more had been expended by appellant than had been received; that the...