Orear v. Farmers State Bank & Trust Co. (286 Ill. 454, 1919)

Mn Justice Carter

delivered the opinion of the court: Sallie Browning Orear filed her bill in the circuit court of Morgan county April i, 1915, for the partition of certain real estate.' After the pleadings were settled the cause was referred to a special master in chancery, who reported in favor of complainant and recommended that the -prayer of the bill be allowed. The exceptions of the defendants in error to the report of the master were sustained by the chancellor and a decree was entered dismissing the bill for want of equity. From that decree this writ of error has been sued out.

The bill alleges that complainant and D. Rees Browning, her brother, entered into an equal co-partnership agreement for the conduct of their business and financial affairs many years ago, whereby it was mutually agreed that they should contribute into a common fund a sum of money then agreed upon and should thereafter both devote their time and business abilities to the conduct and management of the partnership affairs, said capital and all the profits and accumulation to be owned by them as equal partners; that pursuant to said agreement they both contributed the amount of money agreed upon and for years devoted all their time, services and ability to the conduct of the various partnership affairs and business ventures and to the accumulation of money and property for the advantage and benefit of both; that they were fairly successful in their business ventures, and that the money thus accumulated they from time to time by mutual agreement invested in real estate, of which the title- was taken, for convenience, in the name of Rees; that Rees died May 23, 1914, having in his name 640 acres of land in Sangamon county which had been purchased some years previous to his death from Edward W. Brown and wife, the purchase price being paid out of the partnership funds; that the equitable and beneficial interest in said real estate vested in Rees and complainant as equal partners; that they never had an accounting as to their partnership affairs; that Rees left a will, which had been duly proved and admitted to probate, and that the Farmers State Bank and Trust Company was appointed and had qualified as executor; that complainant and the bank were seized of all the real estate described in the bill in fee simple, as equal tenants in common.

The answer of defendants in error admits the death of D. Rees Browning and the qualification of the executor but denies the material allegations of the bill, and alleges that Rees purchased said land with his own money and that no part of the land was purchased with the.money of complainant. It denies that complainant is the owner of any portion of said land; alleges that she is barred by the Statute of Frauds; that she accepted the annuity under her brother’s will and is now estopped to make the claim set forth in her bill.

Since the decree was filed in the lower court Sallie B. Orear has died testate, her death having been suggested of record. Her surviving husband and the executor of her will have brought the cause to this court by writ of error.

The evidence heard before the master shows that D. Rees Browning came to Jacksonville, Illinois, from Kentucky about 1873; that later his brother, Marcus E. Browning, Jr., joined him in.Jacksonville; that Rees obtained a position in a bank and Marcus at first clerked in a store; that thereafter, at the suggestion of Rees, the father, mother, sister (the complainant) and two aunts ca'me to Jacksonville and rented a place called in the record the Adams place, where they and the two sons all lived together. The evidence tends to show that the father was in very poor financial circumstances at the time; that the two aunts, sisters of the father, each had a few thousand dollars, apparently secured by mortgages on property in Kentucky; that a few years after the family came to Jacksonville they moved onto a small farm known as the Hitt place, just out of the city, where Marcus managed a small truck farm, garden and dairy'; that colmplainant (then Sallie Browning) managed the house in which they all lived as one family and assisted Marcus in carrying on the truck farm and dairy; that Rees lived and boarded during these years with the family, and it is apparent from the evidence he was the controlling factor in family affairs. Plaintiffs in error argue the evidence tends to show that during these years the receipts from Rees’ salary and from, the farm were all turned into a common fund, the bank account usually being kept in Rees’ name and checked out by him for the family expenses and other payments. The evidence, however, show's that in the eighties Marcus for some years had a bank account, as did also complainant for a short time. The evidence tends to show that Marcus and the sister trusted largely to Rees as to their business affairs and that he was largely in control of the money disbursements of the family; that Marcus sometimes transferred the funds deposited to his account to Rees’ account; that about 1887 the place called the Wiswell place was purchased by the Brownings and the title 'taken in the name of Marcus, although the evidence shows that Rees did all the business, and there is some evidence tending to show that he actually purchased the land for himself and suggested that the title be taken, for convenience, in Marcus’ name. A partial payment was made on this purchase and the balance was secured by notes signed by the two brothers and the two aunts, complainant’s name nowhere appearing of record as to this purchase. The family moved from the Hitt place to the Wiswell farm, and there is evidence tending to show that Marcus continued to carry on his dairy and truck business at the new home. The evidence on behalf of plaintiffs in error also tends to show that the business during these years on the Hitt and Wiswell places was conducted as a partnership between the two brothers and the sister until the death of Marcus, in 1898, and that thereafter by agreement the partnership was continued between complainant and her brother Rees. About two years after the purchase of the Wiswell place a piece of land adjoining was purchased and the title taken in Marcus’ name, the business in connection with the purchase being conducted by Rees, there being some evidence tending to show that he was the actual purchaser and that at his suggestion the title was taken in his brother’s name. There is no evidence tending to show that the father, Marcus E. Browning, Sr., ever took an active part in the business affairs of the family after they moved to Jacksonville or furnished any of the money put into these lands. The father died January 13, 1895, and the son Marcus died intestate September 19, 1898, holding at that time the title to the two pieces of property in his name, leaving his mother, brother and sistér his only heirs.

The evidence shows that on September 5, 1892, Henry C. Hammond and wife conveyed to D. Rees Browning a lot in College Grove addition to Jacksonville, and that on March 22, 1899, J. H. Osborne, receiver, in consideration of $10,660, conveyed to Rees 164 acres of farm land in Morgan county, $3000 being paid in cash and the balance being evidenced by five promissory notes secured by incumbrance on the property. The evidence tends to show that the money for this purchase price and to pay the notes thereafter was furnished by Rees, the argument of counsel for plaintiffs in error being, that while this money was paid by him it was taken out of the accumulated profits of the partnership business carried on by him and his sister. The record further shows that William Berchtold conveyed to Rees on March 1, 1901, 80 acres of farm land in Morgan county for the consideration of $4700 paid in cash and the assumption of a mortgage on the farm for $1500 and interest. The entire business as to the purchase of this property the evidence shows was carried on by Rees and the money was paid by him, it being also argued here by counsel for plaintiffs in error that this money was taken out of the accumulated profits of the partnership business of complainant and her brother.

In 1893 D. Rees Browning and his aunt Eveline Rees held a mortgage on 240 acres of land in Morgan county belonging to Dr. L. W. Brown securing two notes,—one for $11,000, payable to D. Rees Browning, and one for $7000, payable to Eveline Rees. Thereafter, on December 5, 1896, Dr. Brown paid this mortgage debt by a conveyance of said 240 acres to Rees, and a few days thereafter Rees executed an agreement to re-convey to Dr. Brown said premises at any time within four years upon the repayment of $18,000, with interest thereon, and any taxes, costs and expenses paid by Rees in the interim. Rees did not become vested with the full title to the 240 acres until the expiration of the optional agreement.

The evidence shows that in the year 1888 Caroline and Eveline Rees, the two aunts of D. Rees Browning, made their wills, whereby each left her property to her sister, and in the event of the death of the sister to her nephews, Rees and Marcus, and niece, Sallie, or the survivors; that Rees was appointed executor in both these wills; that he settled both estates in court, and his final account in each was approved in court and he was discharged. Caroline Rees died in 1889. The evidence tends to show that her estate was worth something over $10,000, and that $7000 of this was loaned to Dr. Brown on the note heretofore referred to. This note was introduced in evidence and bears on it the following indorsement: “For value received I hereby assign the within note to D. Rees Browning.—Jan. 11, 1893.” Signed, “Eveline Rees,” the signature being proved to be genuine. On March 28, 1900, Rees conveyed 64 acres of the land purchased by him from Osborne to Eveline Rees, the evidence not showing whether or not this conveyance was a part of the settlement of the estate of the twin sister, Caroline. Eveline died testate June 14, 1903. The inventory filed in that estate showed that she owned only said 64 acres of land. We find no basis in the record for the claim of counsel for plaintiffs in error that Eveline Rees must have been worth at her death approximately $35,000 or $40,000 and that Rees failed to account for all of her property in the county court. The records of the county court of Morgan county show that Rees was discharged and his final account in said estate approved, and we see no reason, from anything shown in this record, to indicate that he misappropriated any of his aunt’s estate. The evidence also shows that Angeline Browning, the mother of the three Browning children, inherited from her son Marcus one-half of all his property, and that on January 18, 1901, she conveyed all her undivided interest in said son’s real estate to Rees and Sallie Browning.

On July 8, 1905, D. Rees Browning and Edward W. Brown made a trade of certain farm lands owned by Rees in Morgan county, amounting to 484 acres, consisting of the 240 acres theretofore deeded to Rees by Dr. Brown, the 80 acres purchased by Rees from William Berchtold and the 164 acres purchased of Osborne, for the 640 acres of land in Sangamon county described in the bill of complaint. They apparently traded 484 acres owned by Rees for 484 acres of said 640, acre for acre, and Rees paid for the additional 156 acres the sum of $20,000 in cash and by a note secured on the premises, which note, the evidence tends to show, was afterwards paid, as was the original cash payment, by Rees. There is no evidence that in any way indicates that the complainant had anything to do with this transaction as to trading these lands or which tends to show that any of her money was a part of the $20,000, except the general claim of counsel that this sum was a part of the accumulated profits of the alleged partnership. It may be noted in this connection, however, that about the time of this trade between Brown and Rees for the 640 acres, the record shows that complainant invested $10,000 in a mortgage note which was purchased for her through certain bankers. There is evidence tending to show that Rees had advised her with reference to this - transaction, and at about the time of this investment gave her two checks,—one for $2428.54 and the other for $1075. Counsel for defendants in error argue with force that this investment made for complainant at this time tends strongly to show that none of her money was invested in the lands here sought to be partitioned.

Complainant married Thomas B. Orear in 1904. Reés married Ella Headley on February 17, 1910. A marriage contract was executed between Rees and his future wife prior to the marriage. For years before this marriage Miss Headley and the sister, Sallie, had been warm personal friends, and at the time the marriage contract was entered into she was the guest of Sallie and her' husband at St. Petersburg, Florida. The evidence tends to show that the provisions of the marriage contract were talked over by Sallie, Miss Headley and Rees before it -was entered into, although the evidence does not show that Sallie had ever seen the contract itself. This marriage contract sets forth that Rees is the owner of 640 acres of land in Sangamon county and other property. By it he agrees to convey to his future wife, before the marriage, land in College Hill addition to Jacksonville, and also agrees, upon the consummation of said marriage, to execute a will providing that his widow shall receive during the joint lives of herself and his sister, Sallie, one-half of the net annual income