214 F. 556 | 7th Cir. | 1914
Two cases are presented on the one record. Each decree sustains a bill in equity by Cole, administrator c. t. a. of the estate of Donald Fraser, to enforce a claim against Grace Fraser and to realize upon it by sale of land in Illinois, in one case fraudulently mortgaged to E. F. Mann and fraudulently conveyed to Kather-tne Mechler, and in the other fraudulently conveyed to Gertrude Kelly. Mechler and Kelly each filed a disclaimer, and Grace Fraser defended as owner. In one case Grace Fraser alone appeals; in the other, she and Mann are appellants.
Facts common to both appeals are these: In 1895 William Fraser, husband of Grace and brother of Donald, died childless and testate. In his will William devised and bequeathed certain real and personal property to his widow in lieu of dower, but she elected to take under the law. By the next item he made a general bequest of $4,000 to his brother Donald. Other collateral kin were given in subsequent and separate items of the will general money bequests of named sums. Grace Fraser and George McDonald were nominated executors, with a direction that they should not be required to give bond, and they qualified and acted. Among the assets' were notes of Sadler to William Fraser for $25,800, secured by purchase-money mortgage of what is known in the record as the Fraser Farm. Grace Fraser, being advised that under the law she took all the estate’s personalty, bid at the sale under the executors’ foreclosure decree on the Sadler mortgage the full amount of the debt. Learning better afterwards, Grace Fraser asked the foreclosing court to set aside the sale and offer the property anew. This was done, and at the resale she acquired the farm for $10,000. Donald Fraser and the beneficiaries of the other separate bequests sued out ai writ of error from the Appellate Court of Illinois to test the right of the foreclosing court to relieve Grace Fraser from her mistake of law. In Fraser v. Fraser, 128 Ill. App. 73, the second
Grace Fraser owned certain real estate in her own right, known herein as the Elgin Flats. Cole, as administrator of Donald Fraser’s estate, a citizen of California, filed his bill in the court below against Grace Fraser, a citizen of Massachusetts, and Gertrude Kelly, fraudulent grantee, a citizen of New York, to reach this real estate. His bill set forth the above-stated facts, and additionally that the William Fraser estate was insolvent; that Grace Fraser and George McDonald had left the state of Illinois and had abandoned their trust as executors; that Grace Fraser was insolvent; that she had appropriated to herself all the William Fraser estate after payment of debts; and that there was no property in Illinois out of which to satisfy complainant’s claim except the real estate fraudulently conveyed by Grace Fraser. The other legatees were permitted to intervene, file their claims, and adopt the allegations of the bill. Grace Fraser, both before and after the intervention, filed certain pleas challenging the right of the trial court to entertain the suit. On the overruling of these pleas, she declined to plead further, and the decree for complainant was thereupon entered. The nature of the pleas will be understood from our statement of the reasons why the bill was properly sustained.’
By the other bill complainant sought to reach the Fraser farm. The whole situation was disclosed; Grace Fraser filed the same pleas; and she abided by the order overruling them. Since this bill is also sustainable as a creditor’s bill, it is immaterial whether complainant has further equities as against Grace Fraser. But appellant Mann, against whom the bill as a mere creditor’s bill would not be sufficient, answered, and the issues so made were referred to the master, whose report in favor of complainant was confirmed by the chancellor.
The decrees are modified by striking out the allowance of solicitors’ fees, and as modified are
Affirmed.