Fraser v. Fraser

149 Ill. App. 186, 1909 Ill. App. LEXIS 433

• Court: Appellate Court of Illinois
• Decided: June 10, 1909
• Docket: Gen. No. 5,056
• Status: Published

Opinion

Mr. Justice Dibell

delivered the opinion of the court.

Appellants contend that the executors, in the final report of November 28, 1902, committed a fraud upon the court when they therein stated, as to said decree of June 30, 1902, in the chancery suit to relieve the executors from accounting for the proceeds of the foreclosure sales, “which decree is now in full force and effect, and no appeal has been taken therefrom”, when in fact certain legatees had, eight days before, sued out a writ of error from this court to review said decree. While it may well be that perfect candor would have been better observed by the executors if they had also stated that a writ of error had just been sued out to review said decree in equity, yet we are of opinion that the charges of fraud in that respect are not sustained. It was strictly and literally true that the decree was in full force and effect, and that no appeal had been taken therefrom. The legatees who sued out that first writ of error did not cause the same to he made a supersedeas, and it therefore did not interfere with the force and validity of the decree at that time. Moreover if the executors had undertaken to state everything concerning that writ of error, they must also have stated that the proper persons had not been made parties to that proceeding in error, and that the writ of error would be dismissed. Moreover, the Probate Court having before it in that report the date of the decree in equity, could not fail to know as a matter of law, that a writ of error could be sued out to reverse said decree within five years after the rendition of the decree. There was nothing in the final report to indicate that such a writ of error would not be prosecuted. The fact that the distribution of the estate under that final report, and the order approving that distribution and closing the estate, was not made, until three days after that writ of error was dismissed, tends to show that either the executors or the Probate Court, or both, had in view the pendency of that writ of error, and did not intend that the estate should be finally closed until the writ of error was disposed of. None of the other elements of fraud authorizing the setting aside of an order closing an estate are shown, and we are of opinion that the petition could not be maintained on the ground of fraud.

But there is also set forth in the second amended petition such a statement of all the facts as to raise the question whether, when that decree had afterwards been reversed under a subsequent writ of error, and it had been therein adjudged, in a proceeding binding upon all the parties that the executors were chargeable with the proceeds of the first sale, the prior approval of the final report of November 28, 1902, would operate as a bar to the distribution of that portion of the proceeds of the foreclosure sale which had not been distributed. When, in 1902, the Probate Court was applied to to settle this estate on the basis of said decree in equity, the legatees could not then have interposed a successful defense in the Probate Court. It would not have been a defense that they had a right to prosecute a writ of error within five years. The Probate Court would not have been justified in refusing to act on the report for five years. Moreover, by the decree then still in full force, the legatees were enjoined from attempting to make Mrs. Fraser or the executors account for the amount of the foreclosure sales, and Mrs. Fraser cannot now be heard to say that the injunction she so obtained was void, and that the legatees should have violated it, and should be barred now because they obeyed it. While they could have prevented this action of the Probate Court by appealing from the decree entered against them upon non-resident service, or by suing out a sufficient writ of error and obtaining a supersedeas, yet the law did not require them to do either, but they were given by law the right to sue out a writ of error within five years, without seeking a supersedeas. The attorney for some of the appellants, and who now appears to be attorney for all of them, visited the county seat, arid saw that report before it was approved, but he did not then have a defense to interpose, and his clients were enjoined from interposing the only defense of which they could otherwise have availed themselves. But afterwards, upon a second writ of error, it was determined that Mrs. Fraser was not entitled to be relieved from her bids at the foreclosure sales. The parties defeated upon that second writ of error did not cause our judgment to be reviewed by the Supreme Court, and till they do so it stands as a final adjudication, binding upon all the parties to this proceeding. It therefore results that upon the rendition of our decision, on July 17, 1906, upon the second writ of error, the executors then became liable for the difference between the net results of the foreclosure sales and the net results of the second sale, distributed under the report of November 28, 1902. In other words, a sum. exceeding ten thousand dollars had become the property of the estate, after the report of November 28, 1902, was approved, and after the sum therein named was distributed, and the estate declared closed.

It is claimed by appellees that the order approving the final report of November 28, 1902, and the order of October 13, 1903, approving the distribution thereunder, and closing the estate, were final, and are a bar to this proceeding. We are of opinion that they were final as to the sums then distributed, but we feel required, by Diversey v. Johnson, 93 Ill. 547, and Starr v. Willoughby, 218 Ill. 485, and other cases there cited, to hold that as to that portion of the estate which became available by virtue of the decision of this court in 1906, the order closing the estate in 1903 was not final, but was void. It was held, in the case last cited, that an order of the County Court discharging an administrator or executor on a final accounting, when in fact the estate is not fully settled, is void as to the unsettled part of the estate. The quotations there made from Woerner’s American Law of Administration seem to us pertinent to the matter now in hand. It is there said that an order of discharge made by the Probate Court is a discharge only so far as the particular matters appearing upon the face of the account are concerned, and that the formal discharge on a final accounting operates only as to the accounts of the parties up to that period; that other assets may be realized, and new liabilities incurred, involving a continuance of duty and responsibility. It is argued here that inasmuch as the report of November 28, 1902, stated all the facts then existing concerning the result of the foreclosure sales and the release therefrom by the decree of the court of equity, therefore the order closing the estate and discharging the executors was final as to all such matters. Conceding that to be partially true, it was not in the power of the Probate Court to cut off the right of the legatees to a writ of error in the chancery proceeding, nor to deprive the legatees of any of the results of any reversal of that decree which they might thereafter obtain on a writ of error within the time fixed by law. The effect of reversing the decree of June 30, 1902, was to abrogate that decree, and restore the parties to the litigation to their original rights. A party to a suit cannot acquire any rights based on an erroneous decree that will not be abrogated by a subsequent reversal thereof. If he has received benefits from the erroneous decree, he must, after its reversal, make" restitution. Ure v. Ure, 223 Ill. 454. The reversal of that decree and the judgment that Mrs. Fraser was not entitled to be relieved from her bids at the foreclosure sales, and that the executors were not entitled to be relieved from the report of 1898, wherein they charged themselves with the results of those sales, was a new fact, occurring long after the estate was declared closed, and which, standing as it now does as a final adjudication between the parties, determined, long after the approval of that final report of 1902 and the distribution thereunder that there was still over ten thousand dollars of assets belonging to this estate. To hold that those orders approving the report of November 30, 1902, and approving the distribution thereunder and closing the estate, are a bar to the present proceedings, would be to hold that the Probate Court by proceeding at that time, had power to. deprive the legatees of their statutory right to a writ of error in the chancery cause within five years. We are of opinion that the Probate Court was required, under the second amended petition, to re-assume jurisdiction of the estate, and to distribute this additional sum.

We are of opinion that the circumstances of this case do not warrant the imposition of interest at ten per cent per annum upon the executors under section 114 of chapter 3 of the revised statutes relating to the administration of estates. That was intended as a penalty, and to make it unprofitable for executors and administrators to hold the funds of an estate in their hands, and to use them in their own business for their own benefit instead of distributing such funds to those entitled thereto. Here these executors did not have any funds in their own possession. Mrs. Fraser bought the land at the foreclosure sales, and the executors charged themselves with the price at which she bought as if they had received the money, but they had in fact received no money, and she only had the land. She bid for this land more than double what it was. worth. The legatees and heirs get the benefit of this double bid, and she loses correspondingly, and practically sacrifices her half of the estate for their benefit by reason of that bid. Since she discovered the mistake of her legal advisers she has been earnestly contending for relief against that mistake. As she is to be charged for one half of a large sum which she never actually received either in money or value of property, it does not seem equitable that she should also be charged with interest at ten per cent thereon. Courts of probate act upon equitable principles in the settlement of estates. We regard interest at five per cent per annum as a proper charge against her. The estate should be settled on the basis of the report of August 30, 1898, so far as that can be done consistently with treating the report of November 28, 1902, and the approval of the report of final distribution on October 13, 1903, as final so far as it distributed the estate. The decree of June 30, 1902, had found that Mrs. Fraser had laid out in improvements and repairs on said real estate $800 and paid out in taxes thereon $200 in excess of the amount she had received as rent for said premises, and had directed the master, out of the proceeds of that second sale to pay to her said sums of $800 and $200, and also to pay her the sum of $400 which the decree found she had paid out as expenses in the original foreclosure proceedings; and the master did pay her those sums, and she accounted as executrix in her second report of November 28, 1902, only for the net sum received by her from the master under said sale, to-wit: the sum of $8,955.30. When that decree was reversed the allowance therein to Mrs. Fraser of $800 and $200 and $400, in all $1,400, was also reversed. As she is required by this decision to keep the land under the purchase in 1898, she is not entitled to any allowance from the estate for improvements or repairs or taxes which she afterwards paid thereon. We think the court must have power in this proceeding to cause the allowance to her of $800 and $200 in the chancery decree to be eliminated. The expenses of foreclosure had already been charged in the report of August 30, 1898, and should be allowed as of that date. We conclude, however, that the allowance to the executors of attorneys’ fees and commissions in the report of November 28, 1902, must be considered as final, after the approval of that report and the approval of the subsequent distribution thereunder. In that report of final distribution, approved October 13, 1903, Mrs. Fraser, as executrix, had credit not only for paying to herself the balance due on her widow’s award and the amount of a certain other claim which had been allowed her against the estate, but also for interest thereon from the date of said respective allowances to December, 1902. We are of opinion that the court has power in this proceeding to expunge the allowance of that interest, and that it is equitable to do so. No money was paid to her on those allowances. It was a mere matter of book-keeping. We are of opinion that the widow’s award and the claim should be treated as paid to Mrs. Fraser in the manner set forth in her report of August 30, 1898, wherein she credited herself with both of said matters as paid in full at amounts named in that report. Mrs. Fraser should be allowed no other or further commission or attorney’s fees except such sum as may be reasonably necessary to prepare and procure the approval of a final report in accordance with this opinion, and to distribute to the legatees the sums still payable to them. After deducting these allowances the remainder of the estate should be divided into two parts as of August 30, 1898, and Mrs. Fraser should be credited with one-half thereof as paid to her at that time as her inherited share of the real estate and personal estate, she having renounced the will. The balance should be treated as payable to the legatees. She should be charged with interest at five per cent per annum upon the one-half not inherited by her to the time she made distribution, which seems to have been in the first part of 1903. From the sums then due the legatees should be deducted the sums paid to the legatees and approved on October 13, 1903. Interest should then be charged against the executrix upon the balance of the unpaid principal of the fund at five per cent per annum to the date of the filing of the final report pursuant to the directions of this opinion. The legatees may be allowed interest upon their legacies at five per cent per annum from November 30, 1898 (see authorities cited in article entitled “Do Legacies Bear Interest in Illinois”, in 2 Illinois Law Review 440), but the legatees can be paid no interest except out of that one-half of the estate which does not belong to the widow.

It is argued that it will work a hardship upon Mrs. Fraser to be compelled to make good the price at which she purchased this property at the foreclosure sales. The appeal to our sympathies is mainly based upon statements as to her financial condition, made by her attorneys outside the record. We recognize that it is a hardship, and we have in this opinion provided for giving her everything to which we think she can reasonably be entitled. We are as much bound as she is by our decision in 128 Ill. App. 73. If that decision is unsound, she should cause it to be reviewed by the Supreme Court. We must treat it, as it now stands, as a final adjudication upon the subjects covered thereby. We consider that the legatees have a right to demand that we enforce that decision. In considering the hardship to Mrs. Fraser it is to be remembered that her bill in equity shows that when she bought the property at the foreclosure sales, she well knew that she was bidding more than double its value, and that she made that excessive bid in order to deter each owner of one or more lots in Sadler’s subdivision of the land from seeking to redeem from the sale of his lot or lots. Her high bid may have worked a great hardship to other lot owners. When she filed her bill to be relieved from her purchases, she did not make these lot owners parties, so that upon the re-sale, their rights of redemption might be restored to them. If she or her legal advisers had not devised this scheme to cut out the owners of small interests by bidding more than double the true value of the property, she would not be in the unfortunate position she now occupies. It should also be noted that the foreclosure sale was in April, 1897, and that Mrs. Fraser’s bill to be relieved therefrom was filed in April, 1902, and that she delayed five years before seeking relief, during all which time, however, she failed to distribute the proceeds of the sales, and to close the estate. She alleges in her bill that it was not till about six months before she filed it that she learned that she was entitled to but one-half of the personal estate left by her husband. If so, it is singular that for four and one-half years after the foreclosure sales and before she discovered what the law was, she did not cause the estate to be closed. It would establish a very dangerous precedent, to permit one who has bought land at a judicial sale, and paid for it and obtained a deed, to file a bill five years later, and be relieved from the purchase on the sole ground that when he, knowingly and intentionally, paid more than twice its value in order to cut off the rights of other parties, he had been incorrectly advised as to the law by his own attorney.

The order of the Circuit Court is reversed, and the cause is remanded to that court with directions to enter an order in conformity with this opinion.

Reversed and remanded with directions.

Me. Justice Willis took no part in the consideration of this case.