Troup v. Hunter

• Decision Date: 13 December 1921
• Docket Number: No. 14064.,14064.
• Citation: 133 N.E. 56,300 Ill. 110
• Parties: TROUP et al. v. HUNTER et al.
• Court: Illinois Supreme Court

300 Ill. 110

133 N.E. 56

TROUP et al.

v.HUNTER et al.

No. 14064.

Supreme Court of Illinois.

Oct. 22, 1921.

Rehearing Denied Dec. 13, 1921.

Bill by H. H. Troup and others, executors of the estate of Madeline E. Huling, deceased, against W. R. Hunter and others. From a decree for complainants, defendant Young Women's Christian Association appeals.

Affirmed.Appeal from Circuit Court, Kankakee County; Arthur W. De Selm, judge.

Werner W. Schroeder, of Kankakee, for appellant.

J. Bert Miller and Walter C. Schneider, both of Kankakee, for appellees.

THOMPSON, J.

Madeline E. Huling died testate June 30, 1914. By her will she bequeathed to various charitable institutions sums aggregating $120,000, and directed the executors and trustees named in her will to form a charitable corporation to be known as the Madeline E. Huling Home for Poor and Aged Worthy Persons, and to pay over to said corporation the residue of her estate, to be used by the corporation for the maintenance of a charitable institution to be located at Kankakee. The will further provided that, if for any reason the scheme could not be carried out practicably, the executors and trustees should select some other suitable charitable institution already in existence and pay the money over to it. Appellees, H. H. Troup and Walter Co. Schneider, with W. I. Holcomb, now deceased, qualified as executors and trustees. The will was dated December 9, 1913, and there was a codicil attached, dated June 4, 1914. W. R. Hunter, an attorney of Kankakee, who had been attorney and confidential agent for testatrix since the death of her husband, in 1902, prepared the will and codicil, and for several years after her death represented the executors and trustees. September 20, 1919, Hunter recorded a warranty deed, dated December 9, 1908, and signed by testatrix, conveying to himself testatrix's homestead, and a quitclaim deed, dated September 19, 1919, conveying the property from Hunter to appellant, the Young Women's Christian Association.

On April 19, 1920, appellees filed in the circuit court of Kankakee county their bill, asking, among other things, that these deeds be declared void, and that title to the homestead be confirmed in appellees. Appellant answered, claiming that the deed was delivered to Hunter under an oral agreement to convey the property to some charitable institution, to be selected by Hunter. Appellees filed a special replication, in which they alleged that the trust agreement was not in writing, and was void because of the provisions of section 9 of the statute of frauds (Hurd's Rev. St. 1919, c. 59). The cause was heard in open court by the chancellor, and a 30-page decree entered, finding, among many other matters immaterial and foreign to the issues, that the deed to Hunter was void, because of the provisions of section 9 of the statute of frauds. From that decree this appeal is prosecuted.

[3] Special replications in chancery are no longer used. Tarleton v. Vietes, 1 Gilman, 470, 41 Am. Dec. 193;White v. Morrison, 11 Ill. 361;Kane v. Hudson, 273 Ill. 350, 112 N. E. 683. Amendments to the bill have been substituted in the place of special replications. What the complainant could formerly insist on in a special replication he may now do in an amendment to his bill. If the circumstances of the case are changed by the answer, an amendment of the bill becomes necessary in order to meet the situation. The complainant can in this way answer or explain any new matter disclosed by the answer. Appellees argue at great length, and the chancellor found, that the agreement set up in the answer is void because of the statute of frauds. The question was not before the chancellor and is not before us. It is a settled principle in equity that a party, to avail himself of the benefit of the statute of frauds, must specially plead it. If he fails to set it up in his bill, he will be deemed to have waived and renounced the advantage to be derived from its provisions. A party must stand or fall by the case made by his bill. Schmitt v. Weber, 239 Ill. 377, 88 N. E. 268;Chicago, Peoria & St. Louis Railway Co. v. Jacksonville Railway Co., 245 Ill. 155, 91 N. E. 1024. It does not follow, however, that the decree must be reversed on account of the mistaken opinion of the chancellor. If the decree is right, it must be sustained.

W. R. Hunter testified that the deed in question was first delivered to him in 1908 as security for $5,000 owed to him by testatrix. In 1913 he surrendered the deed to her and she settled her account with him by giving a promissory note. A month or two before her death she delivered the deed to Hunter, with instructions to deed the property to some charitable institution that he might select, if her will was set aside, or if her trustees did not daminister her...