189 Ill. App. 359 | Ill. App. Ct. | 1914
delivered the opinion of the court.
If plaintiff in error ever was entitled to the income which she now claims, she became so entitled on the death of her husband, George F. Jennings, February 19, 1902; yet she made no claim to such income until June 5, 1911, when she filed her answer and cross-bill. We find in the cross-bill no averment sufficient to bar the defense of laches, and upon that ground we think the demurrer to the cross-bill was properly sustained.
Plaintiff in error was a defendant to the bill filed by the trustee November 1, 1903, for the purpose inter alia of obtaining a decree, “ratifying, affirming and confirming its acts as trustee of said estate,” was served with process and defaulted, and a decree entered approving “the action of the trustee in and about the collection, receipt and disbursement of the income. ’ ’ The disbursements included the payment to Edwin B. Jennings of the income now claimed by plaintiff in error, and that decree must, we think, be held conclusive against her present claim.
In the suit in which the cross-bill was filed, plaintiff in error was served with a copy of the bill defaulted and a decree entered July 6, 1906, finding that the trustee had carried out the directions of the will as to the distribution of the income. We think that plaintiff in error is barred by the adjudication that the income which accrued in 1902 was properly disbursed. A defendant in a case, when the merits are determined and the equities settled, cannot, under the guise of a cross-bill, bring the previous proceedings before the court and thus have the court reconsider questions already passed on. Roby v. Calumet & C. Canal & Dock Co., 165 Ill. 277.
The bill as a cross-bill was not good and the demurrer was properly sustained thereto.
Plaintiff in error claimed under the will of her husband, George F. Jennings, and any adjudication which would be binding on him if living is binding on her. The decree of April 23, 1899, entered after the death of John Henry Jennings, in a suit to which George F. Jennings was a party, interpreted and construed the will to provide and mean that all of the income which had accrued after the last quarterly payment and before the death of John Henry Jennings should be paid over to George F. and Edwin B. Jennings. George F. Jennings accepted the benefits of this decree by accepting one-half of the one-third of the income which accrued before the death of John Henry Jennings, and the decree was an adjudication that the income which accrued before the death of John Henry Jennings should not be apportioned which estops plaintiff in error, claiming under George F. Jennings, from insisting on a different construction of the will.
■ The will provides that after the death of the testator’s wife and her sister the entire income of the estate should be, “equally divided between my two sons and my grandson, one-third to each, and also payable quarter-yearly, as annuities for their lives, with remainder over, as follows: should either of said three die,- leaving issue, the said issue to take the annuity of the deceased so long as either of the other two shall live, and should either of my two sons or my grandson die without leaving issue, the annuity of him so dying shall be added to that payable to the survivor or survivors.” The language above quoted seems to us carefully to provide for the effect of the death of the grandson or either of his sons on the distribution of the net income of his estate. The payments are to be made quarterly, and the trustee from the first seems to have reckoned from the first day of the year. The gifts of income are called in the will annuities, and the will provides that should either of his sons or his grandson die without issue the, “annuity of him so dying shall be added to that payable to the survivor or survivors.” The testator’s sons and grandson are not given any interest in the income except the right to their quarterly payments in the manner directed. The language of the will seems to us to necessarily exclude any apportionment between the estate of George F. Jennings or plaintiff in error as the sole beneficiary under his -will, and Edwin B. Jennings, the sole survivor of the sons and grandson of the testator.
We think that irrespective of the other grounds on which we hold that the demurrer to the cross-bill was properly sustained and the cross-bill dismissed, the facts appearing in the record show no right on the part of the complainant in the cross-bill to any part of the income of said estate which accrued after the last quarterly payment of income and before the death of George F. Jennings, and therefore the demurrer to the cross-bill was properly sustained and the cross-bill dismissed. Hemenway v. Hemenway, 171 Mass. 42.
If it be conceded that the court erred in setting aside the default of Mrs. Howland and granting her leave to file a cross-bill and also in denying the motion of Edwin B. Jennings to strike the cross-bill from the files, we do hot think the decree should be reversed therefor, because the dismissal of the cross-bill is, in effect, equivalent to the striking of the same from the files.
The decree of the Circuit Court is affirmed.
Affirmed.
