Advisory Opinion by
Chief Justice Damron.
Frederick H. Rowe, Cole Yates Rowe, Richard Yates Rowe and Millicent Rowe Sammuell made a demand for a pastel portrait of Ex-Governor Richard Yates which came into the possession of the Trustees of the Illinois State Historical Library in 1920 through delivery to them by Richard Yates, Jr., now deceased, and has remained in their possession ever since.
The aforesaid trustees have directed the librarian to request an opinion of this Court as provided for in Chapter 37, Sec. 432, Par. 5 of the Hlinois Revised Statutes with reference to this demand and have accompanied the request for our opinion with a record consisting of a formal demand by claimants, copies of letters, and a reply of the above named claimants.
THE RECORDS
The claimants assert, in their demand, that they are entitled to the sole-and exclusive possession by reason of the fact that in 1865 the Ex-Governor gave the portrait to his only full sister, namely Millicent Yates Mathers, who then lived in Jacksonville, Illinois. That the said Millicent Yates Mathers upon receiving the portrait, placed it in her home in Jacksonville, Illinois; she kept it hanging on the wall of her living room until she died at the age of 84 years. That long before, and at the time of the death of Ex-Governor Richard Yates, which occurred in 1873, the portrait by reason of the gift, as aforesaid was the sole and exclusive property and remained in the possession of his said sister, Millicent Yates Mathers. That she was the mother of one child, a daughter, namely Marietta Mathers, who was her only direct and sole heir at law, and upon her death the portrait became the property of her daughter. Marietta Mathers, while owner of and in possession of said portrait was married to one Frederick H. Rowe, one of the claimants, and after said marriage the said Marietta Mathers Rowe and Frederick H. Rowe continued to live in the city of Jacksonville, Hlinois, and said portrait continued to hang upon the walls of the living room of their home in said city. That there were born to Marietta Mathers Rowe and Frederick H. Rowe, three children who are claimants herein, namely Cole and Richard Rowe, and Millicent Sammuell.
That in 1920 Richard Yates, Jr., came to Jacksonville and discussed with his cousin, Marietta Mathers Rowe, the matter of her loaning said portrait of Ex-Governor Richard Yates to the State of Illinois for the purpose of having same exhibited in the new Illinois Centennial Building, then about to be opened to the public for the first time; that she consented to loan the portrait for that purpose, whereupon it was taken from the walls of the living room of her home and sent by her in her automobile in care of the said Richard Yates, Jr., to Springfield, Illinois, only for the purpose of exhibiting it in the Centennial Building. Claimants further alleged that at the same time a portrait of Mrs. Catherine Yates, wife of the War Governor, was placed in the Centennial Building as an exhibit alongside of the portrait of the Civil War Governor which was borrowed from the home of Murphy Jackson, who lived in Jacksonville, Illinois, and who had been a nurse and attendant to Mrs. Catherine Yates during her lifetime and who had obtained the portrait from.the Civil War Governor as a gift.
These claimants further allege that Marietta Mathers Rowe died on August 27, 1928, while the portrait of the Civil War Governor was still on exhibit in the Illinois Centennial Building. Thai at the time of her decease she left a will bequeathing all of her personal property to her husband Frederick H. Rowe, claimant, for the period of his natural life, and upon his death to their three children the claimants herein. ■ That during all of the time from 1920 to the death of Marietta Mathers Rowe, the claimants had no reason to doubt that the portrait would be returned to them upon request to the Trustee of the Illinois State Historical Library, and they had no reason to believe, they allege, that the State of Illinois or any collateral heirs of the War Governor were claiming title to the portrait.
That on April 11, 1936, Richard Yates, Jr., died, whereupon the claimant, Richard Yates Rowe requested-the Historian at the Illinois State Historical Library to deliver up the portrait so that he might take it back to the family home in Jacksonville, whereupon the said Historian advised that he would have to look into the matter and that he would discuss the matter with him later; that on several occasions thereafter, the claimants requested the returning of the portrait to them from the Illinois State Historical Library but for various reasons the portrait was not delivered to them. That subsequent thereto, the claimants applied to the Trustees of the Illinois State Historical Library by making a personal and direct request for the portrait, to Oliver R. Barrett, a member of the Board of Trustees, who informed claimants that a letter was in the files of the Illinois State Historical Library purporting to be signed by one Mrs. Richard Yates, Jr., who is now deceased and who, in her lifetime was a daughter-in-law of Ex-Governor Richard Yates, in which letter the daughter-in-law expresses the thought that she believed it was the intention of her husband, Richard Yates, Jr., to have the portrait remain in the Illinois State Historical Library, that therefore, the Illinois State Historical Library could not return the portrait to these claimants nor could they recognize the right to the portrait as the heirs at law of Mary Mathers Rowe.
Attached to the request for this opinion we find the record of a carbon copy, unsigned receipt as follows:
Illinois State Historical Library Springfield
December 6, 1930.
This is to certify that Hon. Richard Yates has deposited in the Illinois State Historical Library the following pictures which are to be returned to him or his heirs on demand:
1 oil painting by Healy of his mother, Mrs. Richard Yates.
1 pastel picture of his father, Governor Richard Yates.
Librarian, Illinois State Historical Library.
c/c for Library.
Copy of letter of Mrs. Eichard Yates:
Pleasant Ridge, Michigan April 23, 1939.
My Dear Mb. Angle:
In compliance with my husband’s wishes, I would like to present the portraits of Richard Yates, Sr. and his wife, to the Illinois State Historical Library. These "portraits were placed in your care some time ago, during my husband’s life-time.- I am certain that it was his intention that they should be given to the Library, to remain there permanently. .
Very sincerely yours,
(Signed) Helen Wadsworth Yates.
Mrs. Richard Yates,
25 Poplar Park,
Pleasant Ridge, Michigan.
Letter of Mrs. Catherine Yates Pickering:
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Advisory Opinion by
Chief Justice Damron.
Frederick H. Rowe, Cole Yates Rowe, Richard Yates Rowe and Millicent Rowe Sammuell made a demand for a pastel portrait of Ex-Governor Richard Yates which came into the possession of the Trustees of the Illinois State Historical Library in 1920 through delivery to them by Richard Yates, Jr., now deceased, and has remained in their possession ever since.
The aforesaid trustees have directed the librarian to request an opinion of this Court as provided for in Chapter 37, Sec. 432, Par. 5 of the Hlinois Revised Statutes with reference to this demand and have accompanied the request for our opinion with a record consisting of a formal demand by claimants, copies of letters, and a reply of the above named claimants.
THE RECORDS
The claimants assert, in their demand, that they are entitled to the sole-and exclusive possession by reason of the fact that in 1865 the Ex-Governor gave the portrait to his only full sister, namely Millicent Yates Mathers, who then lived in Jacksonville, Illinois. That the said Millicent Yates Mathers upon receiving the portrait, placed it in her home in Jacksonville, Illinois; she kept it hanging on the wall of her living room until she died at the age of 84 years. That long before, and at the time of the death of Ex-Governor Richard Yates, which occurred in 1873, the portrait by reason of the gift, as aforesaid was the sole and exclusive property and remained in the possession of his said sister, Millicent Yates Mathers. That she was the mother of one child, a daughter, namely Marietta Mathers, who was her only direct and sole heir at law, and upon her death the portrait became the property of her daughter. Marietta Mathers, while owner of and in possession of said portrait was married to one Frederick H. Rowe, one of the claimants, and after said marriage the said Marietta Mathers Rowe and Frederick H. Rowe continued to live in the city of Jacksonville, Hlinois, and said portrait continued to hang upon the walls of the living room of their home in said city. That there were born to Marietta Mathers Rowe and Frederick H. Rowe, three children who are claimants herein, namely Cole and Richard Rowe, and Millicent Sammuell.
That in 1920 Richard Yates, Jr., came to Jacksonville and discussed with his cousin, Marietta Mathers Rowe, the matter of her loaning said portrait of Ex-Governor Richard Yates to the State of Illinois for the purpose of having same exhibited in the new Illinois Centennial Building, then about to be opened to the public for the first time; that she consented to loan the portrait for that purpose, whereupon it was taken from the walls of the living room of her home and sent by her in her automobile in care of the said Richard Yates, Jr., to Springfield, Illinois, only for the purpose of exhibiting it in the Centennial Building. Claimants further alleged that at the same time a portrait of Mrs. Catherine Yates, wife of the War Governor, was placed in the Centennial Building as an exhibit alongside of the portrait of the Civil War Governor which was borrowed from the home of Murphy Jackson, who lived in Jacksonville, Illinois, and who had been a nurse and attendant to Mrs. Catherine Yates during her lifetime and who had obtained the portrait from.the Civil War Governor as a gift.
These claimants further allege that Marietta Mathers Rowe died on August 27, 1928, while the portrait of the Civil War Governor was still on exhibit in the Illinois Centennial Building. Thai at the time of her decease she left a will bequeathing all of her personal property to her husband Frederick H. Rowe, claimant, for the period of his natural life, and upon his death to their three children the claimants herein. ■ That during all of the time from 1920 to the death of Marietta Mathers Rowe, the claimants had no reason to doubt that the portrait would be returned to them upon request to the Trustee of the Illinois State Historical Library, and they had no reason to believe, they allege, that the State of Illinois or any collateral heirs of the War Governor were claiming title to the portrait.
That on April 11, 1936, Richard Yates, Jr., died, whereupon the claimant, Richard Yates Rowe requested-the Historian at the Illinois State Historical Library to deliver up the portrait so that he might take it back to the family home in Jacksonville, whereupon the said Historian advised that he would have to look into the matter and that he would discuss the matter with him later; that on several occasions thereafter, the claimants requested the returning of the portrait to them from the Illinois State Historical Library but for various reasons the portrait was not delivered to them. That subsequent thereto, the claimants applied to the Trustees of the Illinois State Historical Library by making a personal and direct request for the portrait, to Oliver R. Barrett, a member of the Board of Trustees, who informed claimants that a letter was in the files of the Illinois State Historical Library purporting to be signed by one Mrs. Richard Yates, Jr., who is now deceased and who, in her lifetime was a daughter-in-law of Ex-Governor Richard Yates, in which letter the daughter-in-law expresses the thought that she believed it was the intention of her husband, Richard Yates, Jr., to have the portrait remain in the Illinois State Historical Library, that therefore, the Illinois State Historical Library could not return the portrait to these claimants nor could they recognize the right to the portrait as the heirs at law of Mary Mathers Rowe.
Attached to the request for this opinion we find the record of a carbon copy, unsigned receipt as follows:
Illinois State Historical Library Springfield
December 6, 1930.
This is to certify that Hon. Richard Yates has deposited in the Illinois State Historical Library the following pictures which are to be returned to him or his heirs on demand:
1 oil painting by Healy of his mother, Mrs. Richard Yates.
1 pastel picture of his father, Governor Richard Yates.
Librarian, Illinois State Historical Library.
c/c for Library.
Copy of letter of Mrs. Eichard Yates:
Pleasant Ridge, Michigan April 23, 1939.
My Dear Mb. Angle:
In compliance with my husband’s wishes, I would like to present the portraits of Richard Yates, Sr. and his wife, to the Illinois State Historical Library. These "portraits were placed in your care some time ago, during my husband’s life-time.- I am certain that it was his intention that they should be given to the Library, to remain there permanently. .
Very sincerely yours,
(Signed) Helen Wadsworth Yates.
Mrs. Richard Yates,
25 Poplar Park,
Pleasant Ridge, Michigan.
Letter of Mrs. Catherine Yates Pickering:
Pleasant Ridge, Michigan, February 19, 1945.
My Dear Mr. Angle:
I am very sorry that there has been any embarrassment about the portrait of my grandfather, Richard Yates. I do not believe that there is anything that my sister or I could add to the letter from my mother which is in your possession. Mother had a remarkable memory, and I am positive that she was correct in her statement that Father wanted to have the portraits in the Library.
In regard to the portrait of my grandmother. It hung on the wall of our hall at 1190 Williams Blvd. after the death of my grandmother in 1908. It certainly did not belong to “Auntie Mercy,” her life-long companion.
It is too bad that the Rowes waited twenty-five years to present their claim. It would have been better if they had done so in my father’s lifetime.
Very truly yours,
(Signed) Catharine Yates Pickering.
And the following statement by the State Historian:
“No member of the Board of Trustees or staff of the Illinois State Historical Library has any personal knowledge of the conditions under which" the pastel portrait of Richard Yates was placed in this Library.
At a meeting in Chicago, September 14, 1944, the Trustees of this Library took cognizance of Mr. Rowe’s claim. Their action is recorded in the minutes of the meeting as follows:
The Librarian was instructed to inform Secretary of State Richard Yates Rowe that the Trustees were under an obligation, moral as well as legal, to respect the claim of title of those from whom it obtained the portrait of Richard Yates, Sr., and that therefore they could not honor his request that the portrait be turned over to him.” Respectfully submitted,
(Signed) ■ Paul M. Angle, State Historian.
Illinois State Historical Library, Springfield, Illinois.
We have carefully considered the record presented to us and find that the respondent would not be justified in withholding this portrait from the claimants. Title passed to Millicent Yates Mathers, sister of Ex-Governor Richard Yates, by gift from the War Governor to her in 1865 and at the time of the gift she took possession of said portrait and possession remained in her until her death; at her death title and possession of this portrait passed to her only daughter and sole heir at law, Marietta Mathers Rowe. Marietta Mathers Rowe died on August 27, 1928, leaving a last will and testament bequeathing all of her personal property, including this portrait, to her husband Frederick Cole Yates Rowe, Richard Yates Rowe and Millicent Rowe Sammuell, all of whom are claimants.
The Court is of the opinion that Richard Yates, Jr., who delivered the portrait to the Illinois Historical Library in 1920, was not the owner of it and conld not have passed title to the respondent.
We advise the Trustees of the Illinois State Historical Library and its Custodian to surrender the portrait to the above claimants.