Whiton v. Whiton

• Decision Date: 04 April 1899
• Citation: 53 N.E. 722,179 Ill. 32
• Parties: WHITON v. WHITON et al.
• Court: Illinois Supreme Court

179 Ill. 32

53 N.E. 722

WHITON

v.WHITON et al.

Supreme Court of Illinois.

April 4, 1899.

Error from appellate court, First district.

Bill by Lander Kirke Whiton and another against Louise Whiton for specific enforcement of an agreement of the mother of complainants and defendant to make a will dividing her property equally among her children. Decree for complainants, and defendant brought error to the appellate court, which affirmed the decree (79 Ill. App. 99), and she again brings error. Affirmed.John S. Cooper, for appellant.

John M. Gartside and Pence & Carpenter, for appellees.

This was a bill in equity brought in the circuit court of Cook county on February 10, 1897, by Lander Kirke Whiton and Walter Starr Whiton against their sister, Louise Whiton. The bill alleges that complainants are the children of Henry K. Whiton, deceased, who died July 14, 1886, leaving complainants, Vernon Conger Whiton, and defendant, Louise Whiton, children by his wife, Louise L. Whiton, and Arthur L. Whiton, a child by a former wife; that Vernon Conger Whiton died about May, 1890, unmarried and intestate; that Henry K. Whiton, their father, died leaving a last will and testament, the following being the substance of the material parts necessary to be considered in the decision of this case, to wit: First. Gives to his wife, Louise L., all his household effects of every sort, including articles of apparel and ornaments and books (excepting law library); also such bank stock as he shall own in the Commercial Bank of Chicago at the time of his decease; also proceeds of all life insurance upon his life which he may own at the time of his decease, except a policy of $2,000 in the Equitable of New York, which was taken for the benefit of his daughter. Fourth. Gives to his daughter, Louise, the proceeds of the policy of insurance on his life in the Equitable for $2,000, in which she is named as the beneficiary, to be in addition to her share of the estate, as hereinafter divided. Fifth. ‘Subject to the foregoing, I give, devise, and bequeath to my executors hereinafter named, or to such of them as shall qualify as such, or to any administrator with this will annexed, all the rest and residue of my estate, real and personal, and wheresoever situated, to enter into and possess the same, and take the rents, issues, and profits thereof, but upon the following trusts, to wit: As soon as practicable, without apparent sacrifice, to sell, convey, and convert into money all my real estate and unsecured claims and demands of every sort, and with the proceeds, after satisfying the legacies aforesaid, debts and expenses of administration, to make such investment in interest-bearing securities as my executors or the administrators with the will annexed may deem most desirable, and be sanctioned by the probate judge of Cook county, Illinois, for the time being; giving, however, a preference to first mortgage loans and improved real estate. And I desire that the income from such property, and the securities into which it may be converted, as well as the dividends or income from any portion of my estate not hereinbefore specifically devised or bequeathed, may all be paid over to my said wife, to be her own property, but to be used for her support and the support and education of her children.’ Sixth. That when any of the children of his present wife should attain the age of 21 there should be advanced to him or her the sum of $2,000, to be charged against his or her distributive share of the testator's estate, and, when the oldest surviving child by the present wife shall attain the age of 25, the residue of the estate shall be divided into as many equal parts as the testator shall then have children surviving by his present wife, and that one of said parts shall be paid over to the child who has reached the age of 25, and as soon as any other child shall attain the age of 25 a like share should be paid over to him or her, with any income that may have accrued to such share after the division of such estate. The bill alleges that the said will was admitted to probate by the probate judge of Cook county on the 5th day of August, 1886, and letters testamentary were issued thereon to Samuel G. Bailey and Warren J. Durham, as executors and trustees; that on or about the 5th of August, 1886, said Bailey and Durham entered into possession of said property, and delivered to said Louise L. Whiton, widow of their testator, about 80 shares of the capital stock owned by the testator in the Commercial National Bank of Chicago in his lifetime, and 20 shares of stock of said bank in addition, which had been nominally given to said Louise L. Whiton, altogether of the par value of $10,000, and other securities; that the total amount paid over to said Louise L. Whiton by said executors out of the estate was the sum of $43,389.70 prior to the month of June, 1895, computing such securities at actual value; that a few weeks prior to the 6th day of June, 1895, their said mother, Louise L. Whiton, having recently returned from a visit abroad, stated to complainants that she wanted some more money out of the estate of her husband, said Henry K. Whiton; that she wanted $12,000, but that said Bailey and Durham, being such executors and trustees, would not pay her any more money without the authority and consent of complainants and of defendant, claiming that she, the said Louise L. Whiton, had received all she was entitled to out of said estate; that she had a power of attorney from her daughter, said defendant, authorizing her, the said Louise L., to do in the matter whatever she, said Louise L., thought proper and right, and stated that if complainants would consent to an order in a certain case then pending in the circuit court of Cook county, Ill., wherein complainant Lander Kirke Whiton was plaintiff and said Bailey and Durham and others were defendants, on the chancery side of said court, she could get the money, or the securities representing the money, out of the hands of said Bailey and Durham, as such executors and trustees; that she further stated to complainant Walter Starr Whiton that, if he would consent to said order authorizing the payment to her of the said $12,000 by said Bailey and Durham, she would make it all right with him in her will; that complainant Lander Kirke declined to consent to the entry of such order, or to give his authority to the payment by said Bailey and Durham, as such executors and trustees, of said sum of $12,000, or any other amount, for the reason, as stated by complainant Lander Kirke to said Louise L. Whiton, that she had theretofore threatened complainant that she would in her will disinherit him, and that he, said Lander Kirke, felt that such statement and such attitude on the part of his mother were unjust to him, and that he was satisfied that she had received from said estate more than she was entitled to receive therefrom in accordance with said will and the existing condition of said estate; that thereupon said Louise L. Stated to complainants that she had no such disposition to disinherit them, and in a conference then and there had, about the 28th day of May, 1895, it was proposed to the said Louise L. that she make a will devising and bequeathing all the estate of which she might die possessed to her three children, viz. complainants and defendant, equally one-third, share and share alike; that then and there it was agreed by and between complainants and the said Louise L. Whiton that complainants would each consent to the entry of such order, as aforesaid, in said cause then pending in said circuit court, authorizing and directing said Bailey and Durham, as such executors, to pay over to said Louise L. $12,000 in securities and money, and upon condition that she should make, execute, and deliver her will devising and bequeathing all of the property of which she might die possessed to complainants and defendant, equally, share and share alike; that on the 5th day of June, 1895, in pursuance of said agreement last mentioned, said Louise L. Whiton made, executed, delivered, and published her last will and testament, which was then and there witnessed by two subscribing witnesses and duly executed; that the will, after providing for the payment of debts and revoking former will, contained the following: ‘Third. I hereby will, give, devise, and bequeath all my estate, both real, personal, and mixed, unto my three beloved children, and to the survivor or survivors of them, namely, Lander Kirke Whiton, Walter Starr Whiton, and Louise Whiton, in equal parts, share and share alike, the share and portion hereby devised to my beloved daughter, Louise Whiton, to be free from all control, debts, judgments, demands, or liabilities of any husband that she may hereafter have. Lastly. I do hereby nominate and appoint the Northern Trust Company * * * to be my sole executor under this, my last will and testament.’ The bill further alleges that thereupon complainants and said Louise L., for herself and as attorney in fact for said defendant, together with the solicitor of said defendant, consented in writing to the entry of an order directing said Bailey and Durham, as such executors and trustees, to forthwith pay to said Louise L. the sum of $12,000 in cash, or cash and securities, of said estate in their hands as such trustees, which said order was on the 6th day of June, 1895, entered by said circuit court in said cause; that about the time of the entry of said order said last will and testament of said Louise L. was by her delivered to the Northern Trust Company, named in said will as executor; that said trust company was and is a corporation under the laws of the state of Illinois, with power to accept trusts as executor of wills; that some little time after the said 6th day of June, 1895, said Bailey and Durham, as such executors and trustees, in pursuance of said agreement between complainants, defendant,...