APPEAL from the Circuit Court of Sangamon County; the Hon.
CLEM SMITH, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Cora D. Brown, executrix of the will of Ella S. Taintor, brought this action in the circuit court of Sangamon County to remove certain alleged clouds upon her title to an improved parcel of real estate in Springfield, and to quiet title in herself, as executrix. A motion to dismiss the complaint was sustained, and a decree entered dismissing the case for want of equity. Plaintiff appeals. A freehold is involved.
Ella S. Taintor died testate on December 5, 1931. She was survived by her husband and their four children. By the third section of her will she gave her husband, Phineas E. Taintor, the right to occupy her dwelling house for life and forbade its sale during his lifetime without his written consent. She also directed her executrix, as trustee, to retain from the proceeds of the sale of her other property the sum of $1,000, to be used for the support and care of her husband.
The controversy centers around the fourth section of her will, which continues:
"Subject to the foregoing, I give, devise and bequeath all the rest and residue of my property and estate to my Executrix hereinafter named with full power and authority to manage and control the same and to sell, dispose of and convert the same into money as fast as the same can be done to advantage, and I direct that the net proceeds from time to time be distributed equally, as the same accrue, among my children, CORA D. BROWN, CHARLES E. TAINTOR, PEARL E. TAINTOR AND R. IRENE LOCHRIDGE, the descendants of any deceased child to take per stirpes the parent's share. And if at the time of any distribution either of my said children be dead leaving no surviving descendant, I direct that the share of such child shall be eliminated and distribution be made among my other children who are then living or have living descendant."
The testatrix appointed her daughter, Pearl E. Taintor, executrix. Her other daughters, R. Irene Lochridge and Cora D. Brown, were appointed successor executrices in that order.
Ella S. Taintor's husband died November 21, 1935. Pearl E. Taintor, the first executrix, died in May of 1937, without having sold any of the real estate. R. Irene Lochridge succeeded her, and as executrix sold two parcels of real estate, one in 1939 and the other in 1942. She died in 1949. The remaining parcel, that which is involved in this case, is the testatrix's dwelling house in Springfield, in which the Taintor family lived for many years. Cora D. Brown and her brother, Charles E. Taintor, still live in the house and their father and sisters also lived there until their deaths. In 1955 Cora D. Brown became executrix and thereafter instituted this action.
On February 27, 1934, Pearl E. Taintor executed a warranty deed to R. Irene Lochridge, conveying an undivided one-fourth interest in the property here involved. On August 23, 1939, Charles E. Taintor executed a similar deed to R. Irene Lochridge. Both deeds were recorded, and they are the source of the present dispute. Plaintiff claims that at the time they were executed the grantors did not own, and never thereafter owned, any interest in the property sought to be conveyed.
The estate of R. Irene Lochridge was probated and her husband, Frank G. Lochridge, who was her executor, inventoried a one-third interest in this property. By her will she devised one half her real estate to Frank G. Lochridge, and one half to her brother, Charles E. Taintor. Frank G. Lochridge died in May of 1954, and a three-eighths interest in this property was listed in the inventory of his estate.
Plaintiff contends that the deeds from Pearl E. Taintor and Charles E. Taintor to R. Irene Lochridge, and the inventories mentioned, are clouds on her title. Her complaint sought a decree declaring that title to the property is in her as executrix, in trust for the purpose of selling it and distributing the proceeds between Charles E. Taintor and herself, if they are living at the time of distribution, free and clear of any claim of defendants. The defendants are a brother and nieces and nephews of Frank G. Lochridge, the administrator of his estate, the plaintiff's son, and her brother, Charles E. Taintor.
No pleading was filed by the plaintiff's son or by her brother. The administrator of the estate of Frank G. Lochridge, his brother and his nephews and nieces filed a motion to dismiss the complaint, on the grounds that necessary parties were not joined, and that the plaintiff's right to the relief sought was barred by laches and estoppel.
Defendants' objection as to parties is that while Cora D. Brown is plaintiff, as executrix, she is not individually a party to the suit. The plaintiff justifies the omission on the ground that the action is one to remove clouds upon her title as executrix, and that because she claims no interest under the deeds which created the alleged clouds she is not a necessary party. As a general rule, where the executor or trustee brings his action against third parties to recover trust property or reduce it to possession, the beneficiaries need not be joined. (Wollenberger v. Hoover, 346 Ill. 511, 516; Regan v. West, 115 Ill. 603, 608; 9 A.L.R.2d 13.) In this case, however, the relief that the plaintiff seeks goes further, and affects the rights of the beneficiaries. An adjudication is sought that Cora D. Brown, as executrix, holds the title in trust "for the purpose of selling said real estate and distributing the proceeds between Charles E. Taintor and Cora D. Brown, if they are living at the time the said distribution is made, free and clear of any claim of the defendants herein * * *." While the title of the executrix is involved, the issue at the heart of the case is the determination of the respective rights of the beneficiaries. In such a situation, the beneficiaries are necessary parties. (See Carey v. Brown, 92 U.S. 171, 172; Newhouse v. First National Bank, 13 F.2d 887, 889.) Cora D. Brown should, therefore, have been made a party.
The question then is as to what consequence should follow from the failure to join her, individually, as a party plaintiff or defendant. If the matter is viewed realistically and not formally, she has instituted this suit in her capacity as executrix and has controlled the course of the litigation. There is no doubt, therefore, but that she would be bound individually by the judgment. (Board of Education v. Crilly, 312 Ill. App. 16, 26-27; 170 A.L.R. 1185; Am. Law Inst. Rest. Judgments, sec. 80.) Since this is so, whether or not she is formally made a party is of relatively minor significance. If her presence was imperative the matter would be handled by staying the proceedings until the omission was corrected. (London & Lancashire Indemnity Co. v. Tindall, 377 Ill. 308; Ill. Rev. Stat. 1955, chap. 110, par. 92.) We think it is not necessary to observe this formality at the present time in view of our disposition of the case upon the merits.
Plaintiff's position is that Pearl E. Taintor and Charles E. Taintor had no interest in the property that they could convey because the direction to sell had worked an equitable conversion so that the four children had only a right in the proceeds of sale, contingent, by the express words of the will, on survivorship to the date of distribution. Defendants first argue that there was no equitable conversion because the will does not command a sale in positive language, relying on Rehbein v. Norene, 2 Ill.2d 363, Grove v. Willard, 280 Ill. 247, and similar cases. It is true that the will speaks in terms of "power" and does not "direct" a sale. But in the cases relied on by the defendants, in which the court ruled that there was no conversion because the direction to sell was not sufficiently explicit, there was a concurrent disposition of the property to the beneficiaries. (Rehbein v. Norene, 2 Ill.2d 363; Vierieg v. Krehmke, 293 Ill. 265; Pope v. Kitchell, 354 Ill. 248.) Under the present will, however, the beneficiaries are to take nothing except the proceeds of a sale. And this court has repeatedly ...