APPEAL from the Circuit Court of Cass County; the Hon. MAURICE
E. BARNES, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 19, 1953.
This is an appeal from a decree of the circuit court of Cass County whereby title to certain real estate was decreed to be held in trust for the appellees by the heirs of Myrtle Ann Satorius, one of the original defendants herein, for an accounting, for partition, appointing commissioners, and fixing costs.
The suit, instituted in November, 1945, was filed by five of the seven children of one Rockwell V. Stowell, and two children of a deceased daughter against Myrtle Ann Satorius, another daughter of Rockwell V. Stowell, and her husband, William H. Satorius.
During the course of the action Myrtle Ann Satorius died and her children were brought in as additional parties defendant.
The subject matter of the suit is 559 acres of farmland located in Cass County. In January of 1934 all of the children and heirs of Rockwell V. Stowell executed a quitclaim deed conveying this property to the defendant, Myrtle Ann Satorius. Subsequently, in June of 1934, a warranty deed was executed by all of the heirs of Rockwell V. Stowell, again conveying the property to Myrtle Ann Satorius. Thereafter, Myrtle Ann Satorius deeded the property to her husband, the defendant, William H. Satorius, who, in turn, quitclaimed the property to his children.
The complaint alleged that Rockwell V. Stowell died leaving the real estate by will to his seven children, each of whom was to take a one-seventh interest therein. The property was to be sold at the end of a five-year period and the proceeds divided. The real estate was heavily mortgaged and the complaint alleged that the property was conveyed to the appellant, Myrtle Ann Satorius, to enable money to be raised to pay off the mortgage indebtedness and save the land for the heirs. The complaint states that the heirs agreed to convey their interest in the real estate to Myrtle Ann Satorius for the purpose of having her attempt to secure a loan to save the farm and that upon the completion of such a loan she agreed she would execute a declaration of trust to hold the real estate in trust for all of the heirs in the interests set up by the will of Rockwell V. Stowell.
The appellants filed answers denying the creation of the trust and claiming title to be in William H. Satorius.
The court referred the matter to the master in chancery. He, at the conclusion of somewhat lengthy hearings, made his report and findings in favor of the appellees, concluding that they were the rightful owners of the real estate along with the defendant, Myrtle Ann Satorius, and finding also that appellees were entitled to a decree of partition and accounting of the rents, issues and profits of the real estate from June 21, 1934. Objections were filed which were overruled by the master in chancery. The chancellor overruled all of the objections to the master's report in all respects and entered his decree declaring the existence of an express written trust.
The appellants argue that the complaint is based on the allegations of particular facts and these allegations had to be proved as alleged before the appellees were entitled to a decree. They claim that the evidence in the case fails to sustain the allegations of the complaint and that, therefore, the trial court was in error in entering a decree in favor of the appellees. They further state that any oral agreement by Myrtle Ann Satorius to take over and refinance the real estate, to hold it for five years and then sell it and account for the income and proceeds is unenforceable against the defense of the Statute of Frauds. They further state that there is no evidence to establish a trust agreement and that any evidence concerning the purported written trust agreement was beyond the scope of the pleadings and was not entitled to consideration by the court. They then state that, even should such proof be admissible, the law requires proof of a trust agreement, reportedly lost, to be so strong and convincing as to leave no reasonable doubt as to the existence of such an instrument and that such proof was lacking in this case. They state that the law, to establish the purported trust agreement, requires evidence which must be so clear and convincing and unequivocal and unmistakable as to lead to but one conclusion.
Perusing the record it is apparent that the one basic cleavage between the appellees and the appellants in this cause arises on the question of whether or not a written trust agreement was signed in June, 1934. The evidence discloses that Rockwell V. Stowell died testate on August 7, 1932, leaving surviving as his heirs-at-law his widow, Dora, six children and two grandchildren. The will was admitted to probate with one T.T. Lynn as administrator with will annexed. At the time of his death, R.V. Stowell was the owner of 559 acres of land in Cass County together with a homestead property in Petersburg, Illinois, a lot in the Old Salem Chicago Park and another isolated 18 acres of land in Cass County. By his will the executors were directed to sell the land within five years after his death and to divide the proceeds among his children and grandchildren, one seventh going to each child or to the children of any deceased child. The farmland in Cass County was heavily mortgaged, one tract to the Chicago Joint Stock Land Bank to secure a $15,000 note, payments upon which were in default, and the other to one William E. Millstead to secure a $15,000 note which was also in default. Shortly after Stowell's death Millstead foreclosed his mortgage and obtained a certificate of purchase for over $17,000 at the foreclosure sale and obtained a deficiency judgment for $1000. Other indebtedness of the estate exceeded $3000.
The oldest son and one of the appellees herein, Leslie Stowell, was, and had been for years, a tenant on the Millstead tract. He talked with the other heirs and with William Satorius about the possibility of obtaining a Federal Land Bank Loan to redeem the Millstead tract and to refinance the Chicago Joint Stock Land Bank mortgage. Stowell and Satorius went to the office of one Frank E. Blane, an attorney who acted for both the estate of R.V. Stowell and for all of the heirs in the matters then under consideration. After this meeting, Blane contacted the heirs, advising them of a plan to refinance the property. Several meetings were held with Blane by all of the heirs living near enough to attend. Two heirs, who lived somewhere removed from Petersburg, were kept advised of the discussions and agreements by correspondence with Blane. Some time early in 1934, after a number of these meetings, Leslie Stowell and the appellant, William H. Satorius, went to Jacksonville to the Federal Farm Loan Office to discuss the question of a loan with the head of that office, M.M. Want. They were advised that it would be impossible to get a loan application unless the properties were taken in the name of one heir. Blane, after learning of this requirement, called a meeting of the heirs in his office in January, 1934, where it was agreed between the heirs to place the title of the real estate in the name of Myrtle Ann Satorius, the original defendant herein, to be held by her for the purpose of making application for a loan to save the land for the heirs. It seems to be admitted by all parties hereto that there was some discussion of a trust at that time. After this meeting Blane wrote letters to the absent heirs explaining the trust agreement. To carry out this agreement and secure the loan, a quitclaim deed was signed and executed by all the heirs and their spouses.
Stowell and Satorius made various trips to Jacksonville and St. Louis, as representatives of all of the heirs, seeking to have loans approved. They kept itemized expense accounts. In June, 1934, the loans were secured. The money obtained by the loans was not sufficient to pay all the indebtedness plus claims. The widow, Dora Stowell, discounted her claim against the estate in the amount of $2000 and paid $500 out of her own funds to reduce the estate's indebtedness, and T.T. Lynn, administrator with will annexed of the estate of R.V. Stowell, paid the sum of $1100 out of the funds of the estate to the Chicago Joint Stock Land Bank in order to assist in the redemption and refinancing of the land. The heirs, on June 16, 1934, executed a warranty deed to Myrtle Ann Satorius for which they received no consideration. On June 20, 1934, at the request of Dora Stowell, widow of R.V. Stowell, the certificate of purchase issued to Millstead at the foreclosure sale was assigned to Myrtle Ann Satorius after Millstead had been paid the amount due him. At about the same time, June 15, 1934, all the heirs entered into an agreement whereby they waived all their rights under the last will of said Rockwell V. Stowell, including the sale therein provided, and agreed and elected to take the real estate in kind and to take their respective shares in land instead of money. This was done subject to a life estate in one third of the property in Dora Stowell, the widow.
There is conflicting evidence as to whether or not there was a written trust agreement executed in June, 1934, after the refinancing. All of the appellees testified that they signed such a trust agreement. The appellants, Myrtle Ann Satorius and William H. Satorius, denied that they ever saw such an agreement or that any such was ever executed. There is other testimony of disinterested parties which, although not concrete in form or specific on the question of whether or not a trust agreement was executed, indicated that some trust plan had been under consideration by the parties. William Spears testified that he had been approached to act as trustee for the property. J.C. Luther, an attorney who took over the office of Blane after Blane's death, testified that there ...