APPEAL from the Circuit Court of La Salle County; the Hon.
HOWARD C. RYAN, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Pauline Lux, Margaret Tkach, and Andrew Lelija, instituted this action in the circuit court of La Salle County against Frank Lelija, individually and as administrator of the estate of Anna Lelija, deceased, and Mary Morse, to set aside deeds to certain real estate and for partition of the said real estate. This appeal is from the decree granting partition but refusing to set aside the deeds.
The property which is the subject of this controversy is lots 9, 11, 14, and 15 of block 20 in Painter's Addition to Streator. Lot 9 is improved with a home and the other three lots are unimproved. The plaintiffs and defendants are brothers and sisters whose parents owned this property during their lifetime. The father of the parties died in 1949 and the mother died on February 10, 1954. The property descended to the parties as intestate property.
A short time after the mother's death the plaintiffs, Mary Morse, and their respective spouses, conveyed their interests in lot 9 by a quitclaim deed to Frank. About the same time a second quitclaim deed was signed by all the parties and their respective spouses, other than Andrew and his wife, conveying their interests in lots 11, 14, and 15 to Andrew with this provision in the deed:
"In trust, the said Andrew Lilija being empowered by above grantors to sell the above lots and then to distribute the proceeds in equal shares to Grantors and grantee, namely, to Mary Morse 1/4 share; to Pauline Lux, 1/4 share; to Margaret Tkach, 1/4 share, and to Andrew Lilija, 1/4 share. No share to Frank Lilija in consideration of his being granted the home place."
A few months later the plaintiffs filed a complaint alleging that Frank holds title to lot 9 as constructive trustee for the benefit of all the parties because the conveyance from them and Mary Morse to Frank was obtained by both actual and constructive fraud. They prayed that both quitclaim deeds be set aside and for partition of all the property. The defendants filed an answer after they had been defaulted, but the answer was stricken on plaintiffs' motion that it had been filed without leave of court. The circuit court later, on motion of defendants supported by an affidavit, vacated its decrees of partition and sale. The plaintiffs appealed from that order. The Appellate Court, Second District, upheld the order (Lux v. Lelija, 11 Ill. App.2d 333) and we denied plaintiffs' petition for leave to appeal from that judgment. The case was returned to the circuit court and tried on the merits. That court decreed Frank to be the sole owner of lot 9, Andrew to be the owner of lots 11, 14 and 15, 1/5 individually and 4/5 as trustee, and partition of lots 11, 14 and 15.
The plaintiffs contend that the trial court erred in not holding that Frank holds title to lot 9 as a constructive trustee. Constructive trusts are divided into two classes: one, where there is a fiduciary or confidential relationship and the subsequent abuse of that confidence; and the other, where actual fraud is a basis for raising a constructive trust. (Kapraun v. Kapraun, 12 Ill.2d 348.) Plaintiffs base their case on both classes of constructive trust.
The plaintiffs argue that the trial court's finding that there was no actual fraud proved is against the manifest weight of the evidence. All the parties testified that a few days after their mother's funeral the parties decided to go to Marion Ramza, an attorney, to have their mother's estate settled. The evidence as to what happened thereafter is conflicting on almost every point.
The plaintiffs testified that while they were at Ramza's office Mary Morse, one of the defendants, proposed that Frank get the house, but that they felt he should purchase the interests of the other children. They further testified that Frank was to act as court-appointed administrator of the estate, that Frank was to be "administrator" of the house and Andrew "administrator" of the three unimproved lots and that they signed papers at Ramza's office which they thought had this effect. They stated Frank later contacted them and had them sign a paper which had printing on it but no typing and which he represented as just another paper to make him administrator. They claim a conveyance to Frank was never agreed upon nor intended.
Mary Morse, one of the defendants, testified that while all the parties were at Ramza's office she told them that she thought Frank should get the house because their mother, the day before she died, had expressed her wish that Frank get the house and furniture. Mary Morse felt that the children should carry out their mother's wishes. She testified that after some discussion the children conceded that Frank should have the house.
Attorney Ramza's testimony corroborated that of Mary Morse. He further testified that he fully explained to the parties at three different times the following: the insurance money was to be collected and used to pay the funeral expenses and whatever incidental expenses there were, and $2,000 was to be collected from Peoples' Building and Loan and divided among the children. The house was to be deeded to Frank, and in exchange for his receiving the home place and the furnishings he would deed all of his interest in the three lots to the other children. He said all the parties answered affirmatively when he asked them if this was what they wanted to do.
Ramza stated that Pauline, Margaret, Andrew, and Mary then agreed that the three lots should be sold and the proceeds distributed equally among themselves. Ramza advised them that it would be advisable to put the title to the three lots in one of their names so that they would not get tied up with another administration if one of the four died. Ramza testified that the four agreed to put the title in Andrew.
Since his secretary was not present at this meeting, Ramza said he prepared the quitclaim deeds the next day to carry out what the parties had agreed upon. He stated that the printed forms of deeds ...