181 Ill. App. 176 | Ill. App. Ct. | 1913
delivered the opinion of the court.
The errors urged are (1) that the bill not waiving the oath to the answer the proof is not sufficient to sustain the fluffing that fraud and circumvention was used to procure the signature to the release, and (2) that complainant being a collateral heir has no interest in the money recovered without proof that the heir was dependent on the deceased in his life time and there can be no recovery for a sister of illegitimate birth who has not received pecuniary assistance and was not dependent on the deceased. It is also stated (3) that a court of equity will not take jurisdiction of the settlement of estates except in extraordinary cases, and that (4) the administratrix is entitled to commissions on the money in her hands.
As to the first contention, the bill alleges and the answer admits that Margaret Henderson, the administratrix, is the mother of Maude Huddleston and of George Ryan, the deceased. As administratrix, appellant was trustee of the funds of the estate for the parties entitled thereto and owed the utmost good faith to appellee. An administrator holds the title to the property of an estate in the right of the heirs, and occupiés a fiduciary relation to the heirs of the estate. Mayrand v. Mayrand, 194 Ill. 45; Woods v. Roberts, 185 Ill. 489; Mettler v. Warner, 249 Ill. 341, affirming 156 Ill. App. 31. “Transactions between a party and one bearing a fiduciary relation to him are upon his motion prima facie voidable upon grounds of public policy, and the burden of proof, the fiduciary relation being established, is upon the one receiving the benefit to show an absence of undue influence, by establishing the fact that the party acted upon competent and independent advice of another, or such other facts as will satisfy the court that the dealing was at arm’s length, or he must show that the transaction was had in the most perfect good faith on his part and was equitable and just between the parties, or, as some of the authorities say, that it was beneficial to the other party. ’ ’ Thomas v. Whitney, 186 Ill. 225; Woods v. Roberts, supra; Mayrand v. Mayrand, supra; Beach v. Wilton, 244 Ill. 413. “A release by a cestui que trust will not be binding unless he is first made fully acquainted with his rights, and the nature and full extent of the liabilities of the trustee. Any concealment, misrepresentation, or other fraudulent conduct, on the part of the trustee will vitiate such a release, * * * and the burden of proof is on the trustee to vindicate the transaction from any shadow of suspicion, and to show that it was perfectly fair and reasonable.” Jones v. Lloyd, 117 Ill. 597.
The record shows that appellant appears to have concealed from appellee, the fact that appellee had any interest in the money received from the railroad company for the death of her brother. When appellee heard that her mother had some money in which she had an interest she went to see appellant, who told her she had no interest in it. The answer states that appellant took appellee to appellant’s attorney, who also informed appellee that she had no interest in the money received from the Railroad Company as damages for her brother’s death. Condon, the attorney for appellee, testified to repeatedly telling appellee that she had no interest in the money; that appellant in his presence told appellee that for the husband of appellant to learn that appellee was appellant’s daughter might cause him to desert appellant; that after learning that appellee had consulted a lawyer he told her that her lawyer was a young man who had not handled personal injury cases, while he, the witness, had handled many, and was better acquainted with such matters, and he had consulted with his partner, and after consulting the authorities “we concluded Mrs. Huddleston was not entitled to any of the money;” and that he told appellee, if it should get in the papers that she was claiming any of the money, appellant’s husband would leave her, and it was appellee’s duty to execute a release. Mrs. Turner, the foster mother of appellee, testified that in August, 1911, Condon with appellant came to her home and offered to pay her to get appellee to withdraw her suit.
It is shown by the evidence for appellant that after appellant and her attorney both knew appellee was consulting an attorney, they went to Mrs. Crabbe’s where appellee was working as a domestic, and there drew a will for appellant to execute devising her estate to appellee, and procured the signature of appellee as a witness to what she supposed was a will and gave her a check for $200 and the possession of the will, and told her to cash the check and not go near her attorney, but leave the city. Appellee discovered immediately after appellant and her attorney had left Mrs. Crabbe’s that she had not signed a will, and thinking something was wrong, she at once went to her attorney and the check was returned to appellant’s attorney the day it was given to her.
The evidence of appellee is that the will was talked about and written by Condon in her presence, and that appellant signed it and Condon asked Mrs. Crabbe for whom appellee was working to sign it, and then said, “Well, you sign it Maude” and there was another paper under it and she signed the wrong paper and Condon gave her a check for $200 and that she did not know she signed a release. Mrs. Crabbe testified that she saw no other paper except the will, and that Condon said, “Mrs. Henderson said she had no objection to my knowing’ what was in the will; he said I will read it to you and you can sign it and Mrs. Henderson will sign it and Maude will sign it. ’ ’
The admissions of the answer, the evidence of appellant and her attorney and Mrs. Crabbe with that of appellee ; the advice of Condon to appellee to cash the check, keep away from her attorney, “to get your trunk and get out of town;” the getting the paper signed by appellee in the absence of her attorney, the statements of Condon concerning her attorney and drawing a will in favor of appellee and handing it to appellee, and the unconscionable breach of trust by appellant, as administratrix, concurred in and assisted by her attorney, all prove the allegations of the bill that the release was procured by fraud and circumvention and overcome the statements of the answer, that are responsive to the bill, by more than the equivalent of two witnesses.
The bill was filed for the purpose of having the release vacated and declared null and void, enjoining the appellant from transferring the property bought with the money obtained on the settlement and withdrawing the money from the bank until the settlement of the estate and for general relief. The question of the interest of the appellee is raised by the allegations of the bill, the answer and the contention of the appellant that appellee has no interest in the money received on the settlement and hence no right to maintain this suit. In settling that question the court was justified in finding what were the interests of the parties under the pleadings, the prayer for general relief and- the evidence.
Appellant’s second contention, that appellee has no interest is based upon the principle, that in a suit at law by an administratrix on behalf of collateral relatives to recover damages for the death of a relative, there can be no recovery, unless it is proved that the collateral relatives received pecuniary assistance from and were dependant on the deceased. While that is the law and the burden of proof to show such dependence is on the brothers and sisters, yet, when the damages have been recovered that question is entirely irrelevant and immaterial. The statute, section 2, chapter 70, provides the money “ shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property, left by persons dying intestate.” Section 2 of chapter 39, of the statute, title “Descent,” is the section concerning “Illegitimates.” The fourth paragraph of that section provides: “When there is no widow or surviving husband, and no child or descendants of a child, the estate of such person shall descend to and vest in the mother and her children and their descendants—one half to the mother and the other half to be equally divided between her children and their descendants, the descendants of a child taking, the share of their deceased parent or ancestor.” The question to which counsel for appellant have devoted much the greater part of their argument is settled by the terms of the statute as quoted. There is nothing to be construed, the language is clear and unequivocal. There is no foundation for their contention and the court correctly found that the interest of appellant was one-half of the money received after the payment of the probate costs. All the findings of fact by the court are fully sustained by the evidence and the pleadings.
Appellant also contends that “a court of equity will not except in extraordinary cases take jurisdiction in the administration and settlement of estates.” The circuit court as a court of equity had jurisdiction of this cause to set aside the pretended release on the ground of fraud, and no other court had jurisdiction to grant such relief. Haying acquired jurisdiction for that purpose, the court should in the interest of justice and to avoid a multiplicity of suits on'a bill containing suitable allegations, have assumed full jurisdiction of the estate and retained jurisdiction, until complete justice was done between the parties in respect to the subject-matter of the litigation. Dougherty v. Hughes, 165 Ill. 384; Elting v. First Nat. Bank, 173 Ill. 368; Moore v. Brandenburg, 248 Ill. 232, 140 Am. St. 206, rev’g 154 A. 156; Holden v. Holden, 24 Ill. App. 106.
"While there is no specific prayer that appellant be decreed 'to pay to appellee the part of the money received from the settlement found to be due her there is a prayer for general relief. That part of the decree ordering that half the money received that remains after the payment of costs be paid to appellee can be sustained under the prayer for general relief.
It is also insisted that the court erred in not allowing appellant an administrator’s commission on the sum collected as damages for the death of her son. Letters of administration were issued to her in March, 1910. In May, 1911, she collected $2,900 on a compromise of the .suit and after paying her attorneys there remained $2,100 net to the estate. She did not disclose to the probate court the fact that she had a daughter, the appellee, who is an heir of the deceased. In August, 1911, appellee demanded her share of the estate. At that time appellant had invested in real estate in her own name $1,375 of the $2,100, and had part of the proceeds in a bank in her own name. Appellant has wrongfully insisted that appellee has no interest in the sum recovered and from the time of the investment of part of the amount in real estate to the present time has had the personal use of such real estate. The appellee by law should have received her half as soon after the money was received on the compromise with the railroad company as the estate could be settled. The appellant was properly chargeable with interest on the money she personally used. She might under the statute be charged with interest at ten per cent, per annum on the money in her hands after two years and six months from the date of the letters of administration. Statute, section 113, chapter 3. She was allowed credit for the sum paid her attorneys for the collection of damages from the railroad company ; even if she had not been guilty of attempting to wrongfully beat appellee out of her share, the interest on the part invested in real estate to the present time would be a reasonable compensation for her services. Numerous cases hold that compensation may be refused if the administrator has been guilty of wilful default or misconduct in the administration of the estate. Whittemore v. Coleman, 239 Ill. 450; In re Estate of Wincox, 186 Ill. 445; Whittemore v. Coleman, 144 Ill. App. 109; Woerner on Adm’r, 1163. There was no error in refusing to allow a commission to appellant.
The decree of the court continues the injunction ‘ ‘ until the further order of the court. ’ ’ The court evidently had in view the making of a further order releasing the injunction, when appellant shall have arranged to pay her daughter what is due her. The decree should have made some provision for its dissolution, when appellee receives her share of the money. That part of the decree continuing the injunction “until the further order of the court” is erroneous (Sholty v. Sholty, 140 Ill. 81) and will be reversed and the cause will be remanded to the trial court with instructions to enter a decree continuing the injunction, until appellee has received what is due her from appellant, except that the money in the bank, and the said real estate may be used by appellant to pay appellee the half of said money so received that is due her after the payment of the costs in. the probate court; in all other respects the decree will be affirmed. However, counsel for appellant has not in any way raised any question over that part of the decree which continues the injunction until the further order of the court nor mentioned it in his brief and argument or assigned error on that question. Since the decree is reversed on an error not raised by appellants, the costs of appellants on this appeal will be taxed to Margaret Henderson personally and the costs of appellee to her.
Decree affirmed in part, reversed in part and remanded with directions.