Smith v. Goodrich

• Decision Date: 03 April 1897
• Citation: 167 Ill. 46,47 N.E. 316
• Parties: SMITH et al. v. GOODRICH.
• Court: Illinois Supreme Court

167 Ill. 46

47 N.E. 316

SMITH et al.

v.GOODRICH.¹

Supreme Court of Illinois.

April 3, 1897.

Appeal from appellate court, Third district.

Petition of interpleader by Sarah L. Knox Goodrich in the case of Edward O. Smith and others against Katherine S. Smith and others, in partition. A decree for petitioner was affirmed by the appellate court (67 Ill. App. 418), and an appeal is taken. Reversed.

Bunn & Park and W. C. Outten, for appellants.

W. C. Johns, for appellee.

PHILLIPS, J.

On the 12th of November, 1888, Edward O. Smith purchased from John C. and Edward Coleman a lot in San Jose, Cal., for which he executed his note for $4,500. At the time of the purchase, the grantors executed a deed, and the grantee executed his note. The deed and note were left with E. Williams, with a distinct agreement that the deed was not to be delivered until the note was paid. The purchaser moved a house onto the lots, which he occupied as a homestead. By payments on the note, it was prior to March 8, 1892, reduced to $2,500, and on the last-mentioned date Edward O. Smith died in California, intestate, leaving, surviving, his widow, Katherine, and sons and daughters by a former wife. At the time of his death, he was the owner of his homestead and certain personal property in the state of California, and was also the owner of valuable real estate in Macon county, Ill. On April 1, 1892, the widow was appointed administratrix in California, and David S. Shellabarger was appointed in Macon county, Ill., on May 16, 1892. After the death of the intestate, at the request of the widow, the administratrix, the appellee purchased the note of the payees, and it was indorsed without recourse, and transferred to her long after it was due. After the purchase of the note by appellee, it was delivered to her or her attorney, and the deed was delivered to the widow or her agent or attorney. Afterwards such proceedings were had in the superior court of Santa Clara county, Cal., that the dwelling house and improvements were set apart to the widow in fee as a homestead, and at the time were worth from $10,000 to $12,000. The claim of appellee on this note was filed, approved, and allowed against the estate of the intestate in the county where he died, in California; and there being no sufficient personal property to pay debts, a transcript was made, authenticated, and, with other claims, sent to the county clerk of Macon county, Ill., within the time required by the statute. These claims, were inclosed in one wrapper, and the clerk placed his file mark upon the wrapper only. The claim was never allowed in the probate court of Macon county. Certain proceedings were instituted by the heirs of Edward O. Smith in the circuit court of Macon county for partition, etc., of lands, and dower was assigned and partition made of certain lands, and sale of others decreed. A large sum of money came to the hands of the master, and appellee filed an intervening petition on the coming in of master's report of sale, and asked that there should be paid her the amount of her claim on the balance due on the Coleman note in the final distribution, and insisting the administration in this state is ancillary to that in California, and that there were not sufficient funds in the hands of the administrator in that state to pay her claim, and that there is no personal property. The heirs answered, and set up the facts as to the escrow, and claimed there was collusion between the widow and the appellee, and denied the purchase of the note, and urged that, until the payment of the note, the deed could not be delivered, and that appellee could only have relief by proceeding against this property in California. The answer then states the manner of filing the claim, and denies that there was any affidavit filed of the justice of the claim, or the amount due, and denies that it has ever been allowed, etc. On hearing in the circuit court, a decree was entered for the relief prayed, and on appeal to the appellate court of the Third district that decree was affirmed. An appeal is prosecuted to this court.

Placing the deed and note in the hands of Williams, with an agreement that the deed should not be delivered until the...