Warrington v. Chester

• Decision Date: 23 October 1920
• Docket Number: No. 13465.,13465.
• Citation: 128 N.E. 549,294 Ill. 524
• Parties: WARRINGTON et al. v. CHESTER.
• Court: Illinois Supreme Court

294 Ill. 524

128 N.E. 549

WARRINGTON et al.

v.CHESTER.

No. 13465.

Supreme Court of Illinois.

Oct. 23, 1920.

Error to Circuit Court, Champaign County; Franklin H. Boggs, Judge.

Bill for partition by Minnie Warrington and others against Ruth Virginia Chester. From the decree rendered, defendant brings error.

Reversed and remanded.Wolseley & Ball, of Chicago, and H. T. Schumacher, of Champaign (G. A. Buresh, of Chicago, of counsel), for plaintiff in error.

A. D. Mulliken, of Champaign, for defendants in error.

DUNN, J.

Elias O. Chester died on February 24, 1910, leaving a will, the second and third clauses of which disposed of his property as follows:

‘Second. I give, devise and bequeath unto my beloved wife, Virginia, S. Chester, all my real and personal estate, of whatsoever kind or nature and wherever situate, so long as she shall remain my widow.

‘Third. Upon the remarriage of my said wife or upon her death, I give, devise and bequeath the real estate above devised to her, together with any part of my personal estate at such time remaining undisposed of, to my children, Ida Belle Chester, Mrs. Minnie Warrington, Oscar Paul Chester, Manley E. Chester and Mabel Chester, to be equally divided among them, my said children, the issue of any child who may have then deceased taking the share to which such deceased child would be entitled to if living.’

Oscar P. Chester died on June 23, 1916, leaving a widow and his daughter, Ruth Virginia Chester, his only heir, then about four years old. During his lifetime he received from Virginia S. Chester three sums of money of $1,000 each, for each of which he gave a receipt in the following form:

‘This is to certify that I, the undersigned, Oscar Paul Chester, have this day received of Virginia S. Chester the sum of $1,000, which said sum is paid by her to me and is hereby accepted by me as an advancement on the portion that may be or become due to me, my heirs, executors or assigns, from the estate of Elias O. Chester and Virginia S. Chester, or either of them.’

Virginia S. Chester died on April 20, 1919, and on April 24 the four surviving children of Elias O. Chester filed a bill in the circuit court of Champaign county against Ruth Virginia Chester for the partition of the real estate devised by the will of Elias O. Chester, consisting of 120 acres of land in Champaign county and the residence in Champaign, which had been occupied by Mrs. Chester as her homestead. The bill alleged the payment of $3,000 to Oscar P. Chester, and prayed that that amount be decreed as so much received by Ruth Virginia Chester and charged against her interest in the real estate. A guardian ad litem was appointed and filed an answer calling for strict proof of the bill. The cause was referred to a master, who took the evidence and made his report recommending a decree of partition in accordance with the prayer of the bill, charging Ruth Virginia Chester with the $3,000 received by her father. Objections to the report were overruled, and a decree was entered in accordance with its recommendation. The commissioners reported that the real estate was not susceptible of partition without manifest prejudice to the parties in interest, and that they had appraised it in separate parcels at $82,000. The report of the commissioners was approved and a decree of sale entered, the terms being 10 per cent. of the purchase price cash on the day of sale and the balance cash on the approval of the report of sale and tender of deeds by the master. The master reported that he had sold the property on January 17, 1920, to the complainants for $77,800, and the court entered an order approving the sale and fixing the complainants' solicitor's fees at $1,600, which was apportioned so that each of the complainants and the defendant, Ruth Virginia Chester, should pay one-fifth of it. The plaintiff in error sued out a writ of error from the Appellate Cour, and that court at the April term transferred the cause to the Supreme Court.

[1] The cause was properly transferred. The writ of error brings up the whole record, and, while the controversy as to the decree of partition was only in regard to the charge of $3,000 against the interest of the plaintiff in error, the assignments of error question the order approving the report of sale, and therefore a freehold is involved.

[2][3] The case of Lachenmyer v. Gehlbach, 266 Ill. 11, ...