Wachsmuth v. Penn Mut. Life Ins. Co.

• Decision Date: 17 December 1907
• Citation: 83 N.E. 85,231 Ill. 29
• Parties: WACHSMUTH et al. v. PENN MUT. LIFE INS. CO. et al.
• Court: Illinois Supreme Court

231 Ill. 29

83 N.E. 85

WACHSMUTH et al.

v.PENN MUT. LIFE INS. CO. et al.

Supreme Court of Illinois.

Dec. 17, 1907.

Appeal from Probate Court, Cook County; Charles S. Cutting, Judge.

Petition by Frederick H. Wachsmuth and another, executors, against the Penn Mutual Life Insurance Company and one Baumgarden to sell property to pay testator's debts; defendant Baumgarden filing a cross-petition. The petition and the cross-petition were dismissed and the executors appeal; defendants assigning cross-errors. Appeal transferred to Appellate Court.

William Garnett (Moran, Mayer & Meyer, of counsel), for appellants.

Charles L. Bartlett, for appellee Penn Mut. Life Ins. Co.

Ashcraft & Ashcraft (Harrison B. Riley, of counsel), for appellee Bernard Baumgarden.

Henry F. Wachsmuth died in November, 1900, leaving a will, which was admitted to probate, and appellants were appointed executors. With other real estate he owned two lots on Forty-Seventh street, in the city of Chicago, which he devised to his son, Louis C. Wachsmuth, one of the appellants. Between three and four months after Henry F. Wachsmuth's death, while his estate was in process of administration, Louis F. Wachsmuth, the devisee of the Forty-Seventh street property, mortgaged it for $15,000, with which amount a mortgage for $11,000, which had been placed upon the property by Henry F. Wachsmuth in his lifetime, was paid. Default having been made on the $15,000 mortgage, the appellee, the Penn Mutual Life Insurance Company, which had become its owner, foreclosed it, bought the property for the amount of the decree, and, no redemption being made, obtained a deed for the property on October 20, 1904. The property was afterward conveyed to one Hoey, who conveyed it to Baumgarden, one of the appellees, subject to a mortgage given by Hoey and held by the Penn Mutual Life Insurance Company. Louis C. Wachsmuth and Frederick H. Wachsmuth, as executors of Henry F. Wachsmuth's will, were made parties to the suit to foreclose the $15,000 mortgage, as were also the devisee, Louis C. Wachsmuth, individually, and his wife. On April 7, 1906, Henry F. Wachsmuth's executors filed a petition in the probate court of Cook county to sell this property to pay the debts of the testator. Baumgarden, the owner, and the Penn Mutual Life Insurance Company, the mortgagee, were made defendants. A plea was filed by the latter setting forth the making of the mortgage by Louis C. Wachsmuth, and the proceedings for its foreclosure and the sale and deed, and insisting that thereby the executors were estopped from asserting any right to sell the property for the payment of debts. Baumgarden answered, setting up the same proceedings and other matters of defense, and filed a cross-bill praying to be subrogated to the rights of the $11,000 mortgage, and to have the title confirmed in him free from any right of the executors to sell the property to pay debts of their testator. The plea of the Penn Mutual Life Insurance Company was overruled, but, upon a hearing of the issues made upon the petition and cross-petition, the court dismissed them both. The executors have appealed to this court, and Baumgarden and the Penn Mutual Life Insurance Company have assigned cross-errors.

DUNN, J. (after stating the facts as above).

This appeal should have gone to the Appellate Court. No freehold is involved, and there is no other ground for an appeal to this court. In an ordinary petition by an administrator to sell real estate no freehold is involved. Frier v. Lowe, 207 Ill. 410, 69 N. E. 899;Fields v. Coker, 161 Ill. 186, 43 N....