White v. Glover

• Decision Date: 30 September 1871
• Citation: 59 Ill. 459,1871 WL 8064
• Parties: MARY ELLEN WHITE et al.v.JOSEPH O. GLOVER.
• Court: Illinois Supreme Court

59 Ill. 459

1871 WL 8064 (Ill.)

MARY ELLEN WHITE et al.

v.JOSEPH O. GLOVER.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

This was a suit in equity, brought by Mary Ellen White, Matthew White, Henry C. Monroe and Charles Monroe, in the circuit court of LaSalle county, against Joseph O. Glover and a number of other persons, for the purpose of reviewing, reversing and setting aside a decree of that court rendered at the June term, 1866, on a bill filed by the complainant in this case, so far as it authorized the conveyance of eighty acres of land to Adeline Head in lieu of her dower and interest in the estate of her deceased husband, James Monroe, and to set aside and cancel the deed.

The bill sets out the will, and alleges that Glover made the conveyance to Mrs. Head, who had, subsequent to the death of her husband, intermarried with Samuel D. Head.

The defendants filed a demurrer to the bill, which the court sustained and dismissed the bill, from which an appeal is prosecuted to this court. Mr. FRANK J. CRAWFORD, and Messrs. STIPP, BOWEN & SHEPHERD, for the appellants.

Mr. J. B. RICE, and Mr. B. C. COOK, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

Appellants filed their bill in the circuit court to review and set aside a decree, and for other relief.

The facts are, that the ancestor of appellants, in the year 1853, made his will and devised all his estate to Joseph O. Glover, in trust, first, to pay his debts; second, to set off and pay to his wife such share of the estate as she was entitled to by the laws of the State; third, to hold the remainder in trust for his children; and the trustee and executor was empowered to control and manage the estate; to sell and convey all real and personal property; to execute conveyances therefor; to invest the proceeds for the benefit of the children, as the trustee should deem best; to use such portion as was necessary for their support and education; and generally to use the same for the best interests of the children during minority; and in trust further, that the trustee should convey the property, or the proceeds thereof, to the children, when they should attain the age of twenty-one years.

The property devised consisted of two hundred and forty acres of land, four town lots, one of which was improved, and about $7000 worth of personal property.

Monroe died in 1856, and the will was duly proven, and letters granted to Glover, who accepted the trust, and collected over $7000, which he paid out for the benefit of the estate. So far as we can ascertain from the account filed by the trustee, only a small portion of this amount was paid towards the debts of the testator. Some real estate was purchased by the trustee to secure a debt, and over $500 was paid out of the trust fund, to secure the title.

In 1866, one of the children arrived at the age of twenty-one years, and exhibited her bill against the widow, minor children and Glover, praying for the assignment to her of her part of the estate, and the allotment of dower to the widow; and that in lieu of dower, eighty acres of land be conveyed to her in fee.

Glover consented to the relief prayed for, but invoked the aid of the court in the premises.

The court rendered a decree in accordance with the prayer, and Glover executed a deed to the widow, in which he recites that he conveyed the property, as executor and by virtue of the power in the will contained, and in obedience to the decree.

The title to this eighty acres has passed to other parties, and the object of the present bill is a reversal of the decree and cancellation of the deed made by the executor. If the executor had power to convey, and the conveyance in question was a proper exercise of the power, then the deed is valid, notwithstanding the decree.

The invocation of the advice and aid of the court would not invalidate the subsequent rightful action on the part of the executor, even if the court had no jurisdiction. It was a prudent course to pursue, and a trustee should never be the subject of criticism on account of his application to the chancellor for advice in the discharge of his delicate duties.

As we shall look only to the will to determine the validity of the deed, we shall not advert to the other questions presented in the argument of counsel.

If the trustee has been unfaithful; if there has been collusion between him and others to deprive the infants of their property,--of which it may be proper to remark there is no proof in this record,--they have ample remedy. They may make application for his removal, and may compel him to account for the manner in which he has discharged the trust.

Was the execution of the deed in pursuance of the power granted?

It is assumed that the deed shows upon its face that it was executed solely in obedience to the decree of the court. We can not so read it. It is true, that the deed makes reference to the decree, but it recites expressly that it was made “by virtue of the power in said will contained.” Leave out all allusion to the decree, contained in the deed, and it is a complete execution of the power in the will.

It...