Cole v. Cole (292 Ill. 154, 1920)

Mr. Justice Stone

delivered the opinion of the court:

Samuel D. Cole died testate October 17, 1913, leaving him surviving no widow but leaving Sherman G. Cole, Julia B. Cole, Lydia M. Tate, Albert H. Cole and Charles E. Cole, his children, as his only heirs-at-law. His will and codicil were admitted to probate November 14, 1913, on the usual petition in such matters, with notice to the five named children as all the legatees in the will and as all the heirs-at-law of the testator. The children of Charles E. Cole, Lydia M. Tate and Albert H. Cole were not notified of these proceedings. Julia B. Cole and Sherman G. Cole have never had children. Charles E. Cole is married and has a wife and four children, the youngest of such children being twenty-seven years of age. Albert H. Cole is married and has a wife arid nine children, the youngest being twenty-three years of age. Lydia M. Tate is a widow and had at the time of the death of Samuel D. Cole two children living, viz., Frederick G. Tate, an adult, who died June .16, 1918, and left surviving a widow and one child,now fifteen years of age, and Alice Kelly, married and having adult children of her own. Upon the admission of the will to probate appellees Edward C. Swift and Charles E. Hook, executors named in the will, qualified as such and entered upon their duties.

The will, after making provision for the payment of debts, devises the entire estate to the widow during her lifetime or widowhood. The will then devises by the fourth clause as follows:

“Fourth — If my widow shall marry again, then upon such marriage, or if she shall remain my widow for and during her natural life then upon her decease, my executors shall divide my estate, both real and personal, into five equal parts in value and shall allot and deliver one of such five parts to each of my five children, viz., Lydia M. Tate, Julia B. Cole, Albert H. Cole, Charles E. Cole and Sherman Cole, and each of my said children shall have, use and enjoy such part, and the use and income thereof, for and during his or her natural life, that is to say: The part so allotted to my said daughter Lydia M. Tate shall be held, used and enjoyed by her for and during her life and at her decease shall be equally divided into two parts in value, one of which parts I give, devise and bequeath to her son, Frederick Tate, to be his absolute property forever, and the other part shall be equally divided among my other four children, Julia B. Cole, Albert H. -Cole, Charles E. Cole and Sherman Cole, to be their absolute property forever. The part so allotted to my said daughter Julia B. Cole by my executors “shall be held, used and enjoyed by her for and during her natural life and at her decease shall be equally divided between her children, share and share alike, and if she shall then have no children nor grandchildren living, the said part of my estate so allotted to her by my executors shall at her decease be equally divided among my children, Lydia M. Tate, Albert H. Cole, Charles E. Cole and Sherman Cole, but the part so going to Lydia M. Tate shall be held, used and enjoyed by her during her life and at her decease shall become the absolute property of her son, Frederick Tate. The part so allotted by my executors to my son Albert H. Cole shall be held, used and enjoyed by him for and during his natural life and at his decease shall be divided equally among his children. And the share so allotted by my executors to my son Charles E. Cole shall be held, used and enjoyed by him for and during his natural life and at his decease shall be equally divided among his children. And the part so allotted by my executors to my son Sherman Cole shall be held, used and enjoyed by him for and during his natural life and at his decease shall be equally divided among his children, and if he shall die leaving no children nor grandchildren, then the part so allotted to him by my executors shall 'at his decease be equally divided among my other children, Lydia M. Tate, Julia B. Cole, Albert H. Cole and Charles E. Cole. Such part so to go to said Lydia M. Tate shall be held, used and enjoyed by her during her life and at her decease shall become the absolute property of her son, Frederick Tate.”

The original will was executed March 24, 1899. On August 17, 1909, the testator executed a codicil to the will, by which the shares given to Albert H. and Charles E. Cole were changed from a life estate to a fee in the same share.

On January 2, 1914,> a bill was filed by Julia B. Cole, Lydia M. Tate and Sherman G. Cole, complainants, against Frederick- G. Tate, Charles E. Cole, Albert H. Cole and Swift and Hook, executors, defendants, to set aside said will and codicil on the ground of mental incapacity of the testator, Samuel D. Cole. After the filing of the bill to set aside the will and codicil the five children of the deceased and Frederick G. Tate entered into an agreement for a settlement of the controversy and a distribution of the estate, which agreement, after the usual heading, recites the filing of the bill to set aside the will and codicil and then proceeds as follows:

“Whereas the said children of said Samuel D. Cole, deceased, and said Frederick Tate, grandson of said Samuel D. Cole, deceased, agree that the entire estate of said Samuel D. Cole, deceased, shall be equally divided among said children of said decedent without delay and at as early a date as possible, as hereinafter stated;

“Therefore it is hereby mutually agreed by, between and among the said children of said decedent and said devisees and legatees mentioned in said decedent’s last will and testament, as follows:

“i. That in the said suit in chancery now pending in said circuit court, they, nor either of them, will make any defense to the setting aside of the said last will and testament of said Samuel D. Cole, and that the same be set aside and a decree of said circuit court may be entered setting the same aside and declaring the same to be null and void, and that thereupon the said estate of said decedent shall be inherited by the children of said decedent and shall be subject to be divided among the said children of said decedent, and shall be divided and disposed of in the manner following.

“2. Letters of administration shall be issued by and out of said probate court to said Charles E. Hook and Edward C. Swift, as administrators de bonis non of said estate.”

Clause 3 provides for the payment of commissions to the trustees and certain attorneys’ fees. Clause 4 provides for the payment to Albert H. Cole of certain moneys expended by him. Clauses 5, 6 and 7 are as follows:

“5. The remainder of said estate shall be equally divided, according to value, between said children of said Samuel D. Cole, deceased, viz., Albert H. Cole, Lydia M. Tate, Julia B. Cole, Charles E. Cole and Sherman Cole, share and share alike.

“6. And we do hereby appoint said Charles E. Hook and Edward C. Swift to make the division of the said remainder of said estate between and among us, the said Albert IT. Cole, Julia B. Cole, Lydia M. Tate, Charles E. Cole and Sherman Cole. They shall first take and subscribe an oath to make such division fairly, equitably and impartially, according to value. They shall go upon the farm property of said estate, and each and every tract thereof, and acquaint themselves -with the values thereof, and they shall also personally examine each and every of the city lots of said estate and acquaint themselves with the values thereof. They shall then divide all the said remainder of said estate, real, personal and mixed, of every kind and nature,, into five equal parts, according to quality and quantity, the object being to make the said five parts all equal in value. The moneys and other personal property of said estate may be used by said Hook and Swift to equalize the said shares in such manner as they may -deem best in equalizing said shares, the division here contemplated being a division of all of said estate, both real and personal, into five shares equal in value.

“j. The said Hook and Swift in the said division of said estate shall allot and set aside to each of said five children of said Samuel D. Cole, deceased, the particular share of each, and shall designate to whom each share is allotted and set aside, and they shall describe the shares of said farm property, in so dividing it, by metes and bounds or other proper description; and each of said parties, viz., Albert H. Cole, Lydia M. Tate, Julia B. Cole, Charles E. Cole and Sherman Cole, shall receive the said shares of'said estate so allotted and set apart to them, respectively, as their full, equal and proper shares, respectively, of said estate, and they shall make and deliver to the others proper quitclaim deeds, vesting in them and each of them the title and right to the shares of said real estate so allotted, set apart and designated to them, respectively, by the said Swift and Hook. And the said parties to this agreement, the same being the said children of said Samuel D. Cole, deceased, shall make, execute and deliver, each to the other, such necessary written instruments, and acknowledge the same if necessary, as shall be necessary to vest fully and completely in each of them, respectively, all right, title and interest in and to the shares of said estate so set apart and allotted to them, respectively, by the said Hook and Swift. And the said parties to this agreement shall do and perform all things necessary to carry into effect this agreement and perfect the title in each other in and to .the shares, respectively, so to be designated and allotted by the’said Swift and Hook.”

Clause 8 of the contract provides for the payment out of the shares to be allotted to Lydia M. Tate, Julia B. Cole and Sherman G. Cole, of certain fees for solicitors of the trustees and executors. Clause g provides for the giving of certain quit-claim deeds to' Julia B. Cole covering property deeded to her by the deceased in his lifetime. Clause io is as follows:

“io. Said Lydia M. Tate shall make, execute, acknowledge and deliver to said Frederick Tate, her son, such necessary written instrument or instruments as shall secure to him, at her decease, property equal in amount to that which is devised to him in and by said will of said Samuel D. Cole, deceased.”

After the execution and delivery of the foregoing contract the circuit court proceeded to a hearing on the bill to contest the will, and thereafter entered a decree finding that the instruments purporting to be the last will and testament, and the codicil thereto, of Samuel D. Cole were not and are not his last will and testamént, and decreeing that the will, and the probate thereof, be set aside and declared to be null and void.

On the first day of March, 1916, the appellees Swift and Hook took and subscribed the oath provided for in the agreement and closed all matter's pertaining to the probate of the will, and as commissioners under the agreement took possession of the property and entered upon the duties necessary to carry out the terms and conditions of the contract, including their appointment as administrators de bonis non. They went upon the land and made an appraisement and estimate of the expense necessary to carry out the contract, and after deducting the same they balanced their account and declared the net amount subject to be divided and allotted as per the agreement, giving, in so far as possible,real estáte to each of the five children, and in those cases where the allotment of real estate did not equal one-fifth of the net amount determined as aforesaid, apportionments in cash were made in amounts necessary to divide the estate into five equal portions. On May 19, 1916, they sent out notices to each of the five children that quit-claim deeds had been prepared conveying to each by the remaining four the respective interests in the land of Samuel D. Cole so set off and allotted by them as commissioners, and set May 22, 19x6, at the office of E. C. Swift, as the time and place when the grantors, respectively, should execute the deeds of transfer. Sherman G. Cole and wife executed the four deeds necessary to make the conveyance to the other four children as directed by the commissioners. Julia B. Cole, unmarried, did likewise. Lydia M. Tate, a widow, did likewise. Charles E. Cole, -his wife joining him, did likewise. These four deeds were at the time of their execution delivered to the commissioners, to be by them delivered to the respective grantees when all of the children had complied with the agreement. Albert H. Cole refused to sign the four deeds, respectively, to the other four children and to accept the deed by them signed, conveying the land to him as allotted by the commissioners.

On May 28, 1916, a petition was filed in the probate court of LaSalle county by Charles S. Cole and others, children of Albert H. Cole, setting forth the previous petition and order of probate of said court, in which petition they disclaimed the receipt of any notice of the original probate of said will and codicil and the fact that the order of probate is still in force and effect, and praying for an order vacating, annulling and setting aside the previous order of said court entered November 13, 1913, admitting the will and codicil to probate. Thereupon the probate court set aside the previous order admitting the will and codicil to probate, and after giving notice to each of the five children of Samuel D. Cole, and to Frederick G. Tate, and to the children of Albert H. Cole and Charles E. Cole, that court on July 11, 1916, admitted to probate the will and codicil of Samuel D. Cole. An appeal was prayed therefrom and perfected to the circuit court of LaSalle county by Sherman- G. Cole, Julia B. Cole, Lydia M. Tate and Frederick G. Tate, and by Charles E. Cole to so much of said order as re-probates the codicil to the last will and testament. These appeals were consolidated, and after hearing the testimony of the proponents’ and contestants’ witnesses the circuit court found the will and codicil to have been duly executed, published and declared; that Samuel D. Cole, the testator, was of sound mind and disposing memory and otherwise competent to make the will, and ordered the will and codicil to be recorded as and for his last will and testament.

No further action was taken by any of" the parties to this contract in the matter of contesting the second order of probate or contesting the said will and codicil, which we will hereafter refer to as the will of Samuel D. Cole. A certificate of the orders entered in the circuit court was filed in the probate court and.the last will and testament were duly entered of record and probated. . Thereupon Swift and Hook qualified as executors and trustees under the will, closed ■ the proceedings had and taken ' as .administrators de bonis non, and are now acting in the capacity of such executors and trustees.

The bill of complaint in this cause was filed in the circuit court of LaSalle county on May 31, 1916, by the appellants and Charles E. Cole as complainants. Charles E. Cole later- refused to permit the commissioners to deliver the deed which he and his wife had executed and he was thereupon made a party defendant with Albert H. Cole and Swift and Hook. The bill as amended prays specific per-, formance of the contract by Albert H. Cole and Charles E. Cole, and seeks an order directing Swift and Hook, individually and as trustees, executors and administrators de bonis non of the estate of Samuel D. Cole and as agents and commissioners under the agreement, to deliver to the grantees named in the several deeds and the parties to the contract, severally, the assets so allotted to them by Swift and Hook and any additional assets acquired by them in the same proportion, after deducting and paying necessary claims, costs and expenses, fees, etc. The chancellor, on hearing of evidence, dismissed the bill for want of equity.

It is contended by the appellants that the agreement in question is what is known as a “family settlement of differenees” among all parties in interest in the estate of Samuel D. Cole, deceased; that the decree setting aside the will was a valid decree, but, regardless of how that question be decided and regardless of the re-probating of the will and the fact that it now stands uncontested of record, the contract had "the effect of superseding the will, and that the contract is one which courts of equity will enforce. It is contended by the appellees Albert H. Cole and Charles E. Cole that an essential condition of the contract in question to be performed as a condition precedent to their performance was the setting aside of the wifi of Samuel D. Cole; that the agreement was not made for the purpose of .transferring the interests which Frederick G. Tate and the children of Samuel D. Cole have acquired as legatees under the last will and testament of Samuel D. Cole and was not so understood at the time of the execution of the agreement; that the original probate of the. will was null and void because of the failure to give notice, as required by law, to Frederick G. Tate and to the children of Albert H. Cole and Charles E. Cole then living; that the decree of the circuit court in the proceedings to contest the last will and testament of Samuel D. Cole is null and void, for the reason that no such last will and testament had been admitted to probate by a court having jurisdiction, and that the will, since the second probate thereof, stands as a valid will, and that the contract should not be enforced by reason of mistake of law and fact.

It is evident from an examination óf the contract in question that it was entered into as an adjustment of a controversy among the heirs of Samuel D. Cole, some of whom had filed a bill to contest and set aside the will. The purpose of this contract was evidently to divide the property notwithstanding the will and in a method somewhat different from that provided in the will. . The fact that some of the heirs had filed a. bill to set aside the will and that they reasonably believed they had a right to have it set aside, which right they gave up by the contract in question, constitutes a valid consideration for such a contract. Pool v. Docker, 92 Ill. 501; Honeyman v. Jarvis, 79 id. 318.

The validity of contracts of this character has been repeatedly recognized by this court. Courts of equity favor the settlement of disputes among members of a family by agreement rather than by resort to law. In the case of Hall v. Hall, 125 Ill. 95, the testator, Alexis Hall, by his will' gave the greater share of his estate to his son Eugene A. Hall. For the purpose of adjusting the differences arising between the other children of the testator and Eugene an agreement was entered into providing that the property of the testator should be divided, share and share alike, notwithstanding the will. Of such an agreement this court there said: “This is an agreement of the most praiseworthy kind, — an amicable arrangement amongst brothers and sisters of difficulties between them, which would doubtless have been carried out to the entire satisfaction of them all but for the sudden death of Eugene. It is an agreement which a court of equity will look upon favorably and readily interpose for its specific performance unless there be some insuperable bar to prevent.” In the case of McDole v. Kingsley, 163 Ill. 433, an agreement was entered into by the heirs of Rodney McDole, deceased, to settle the differences with reference to the, division of the estate and property, by which it was mutually agreed that the will might be probated, but that instead of abiding by the will and the distribution thereunder the property should be divided equally. In upholding this contract this court there said: “The mutual concessions for the prevention of litigation afforded a valid consideration for the agreement. (1 Parsons on Contracts, — 5th ed. — 438; Bishop on Contracts, sec. 57; 1 Addison on Contracts, sec. 14.) And such a consideration is not only sufficient, but is looked upon with great favor in a court of equity and will be enforced.” To a like effect is Dunham v. Slaughter, 268 Ill. 625. It will be seen, therefore, that if the contract in question is capable of performance its enforcement will be decreed by a court .of equity.

It is urged by appellees that one of the material provisions of the contract was that the will be set' aside, and that by reason of want of jurisdiction in the circuit court at the time the hearing on the bill to set aside the will was had and decree entered there was no valid decree setting aside the will, and that the will later having been duly probated stands now as a valid instrument, and therefore the provision of the contract that the will should be set aside has failed. An examination of the contract will show that the purpose of it was, as we have said, to .adjust family differences arising over the will of Samuel D. Cole. The contract itself states that it was entered into because of this fact and the fact that a bill had been filed to set aside the will and codicil Of the deceased, and that it was the agreement of all the children of Samuel D. Cole, and of Frederick G. Tate, a grandson, that the estate of Samuel D. Cole should be divided equally among the children without delay and at as early a date as possible. This was the purpose of the contract, as we view it. The contract recognized the existence of the will and provided for the distribution of the property equally, notwithstanding the will. Whether or not the will was set aside by the decree was therefore of no moment." While the contract provided, as one of the steps in .carrying out the division of this property, that the will be set aside by a decree of court, yet if this contract is capable of enforcement in other ways it is wholly immaterial whether or not the will was set aside by a decree of court, since the effect of the contract was to do just that thing. The contention of appellees, therefore, that one of the essential considerations of the contract of settlement was that the will be set aside by a decree can not be sustained.

It is also objected by appellees that the trustees and executors, Hook and Swift, have no power to make a division of the estate in accordance with the contract so long as the will remains in existence. This argument seems to proceed upon the erroneous assumption that Hook and Swift would make a division undér the contract as trustees and executors. Such is not the case. By the contract they are nominated as commissioners, and if they act under it they act as commissioners and not as trustees and executors. If this contract be enforcible as one which supersedes the will, there is no reason why Hook and Swift, or anyone else for that matter, might not be nominated as such commissioners b)r the contracting parties. Anyone nominated as commissioner and acting as such would be acting in that capacity, only. The fact that he may be also an executor and trustee under the will does not change his duty as commissioner. Neither the will nor the contract creates any residuum of the estate, nor is there any division by description but an equal division of the entire estate is provided for. Therefore, when the contract is carried out in full the entire property of the estate passes under the contract. Hook and Swift, by acting as commissioners under the contract, are fully protected from any liability as trustees or executors, as no property of the estate will remain in their hands as such trustees and executors. The commissioners under this contract, whether they be the trustees and executors here or other persons, have the duty, under the contract, to formulate a division of the property of the estate as provided by the contract. They hold no title or interest to the property beyond that given them by the contract. The deeds and other instruments executed by the parties to the contract pass the title to the several parts of the property after the division has been made. The effect of this contract, and the deeds and instruments executed thereunder, is to divest the trustees of all title to the property of the estate.

We come now to a consideration of the question whether the contract is one which the contracting parties had power to make and the terms of which can and should be carried out. It cannot be doubted that if it lies in the power of the contracting parties to control all interests given under the will, then such parties have power to supersede the will by a contract that the property shall be treated as intestate property and partitioned as such. Whether the contracting parties have such power depends upon the terms of the will, — i.