Appeal from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding. Affirmed.
HOFFMAN, PRESIDING JUSTICE.
Rehearing denied June 17, 1962.
Three brothers, Ernest, Clarence and Adolph Streck, many years ago entered into a partnership to engage in the meat packing business in and about Belleville, Illinois. On January 31, 1928 the three brothers, together with their wives, executed a written partnership agreement which had as its object the making of a provision for the carrying on of the partnership in case of the death of one of the brothers. It was provided that the survivors had the right to purchase the interest of the deceased brother for the sum of $20,000, which was to be exercised within one year after death.
This agreement was satisfactory to the partners until May 1, 1941 when, together with their respective wives, they entered into a new partnership agreement which was substantially similar to the first agreement except that it was provided that the option price should be the sum of $30,000.
Ernest Streck, the oldest brother, was the first to die, and this event occurred in 1942. He was survived only by his widow, and there was no disagreement amongst her and the surviving brothers as to the carrying out of the partnership agreement. Shortly thereafter, the wife of Adolph Streck died and on August 18, 1945 Adolph married the appellant herein, Lutie Streck. On November 7, 1945 she affirmed the second partnership agreement by signing the following:
"Having married Adolph Streck on the 18th day of August, 1945, I hereby join in, assent to and covenant to bind myself, my heirs and assigns by all the terms of the above and foregoing partnership contract dated May 1, 1941, having leisurely read the same and knowing the contents thereof."
On January 30, 1951 the two surviving brothers, Clarence and Adolph, entered into a new partnership agreement, which was likewise signed by their wives, and which was essentially the same as the prior agreements except that the option payment was increased to the sum of $60,000. On August 28, 1954, Adolph Streck died leaving his spouse, the appellant Lutie Streck, surviving and leaving a will which contained the following provision:
"The partnership agreement in existence known as `Streck Brothers,' located and doing a packing business in Belleville, Illinois, I direct shall be binding upon my estate, and the partnership agreement shall be carried into effect by all parties interested in my estate."
A further provision in Adolph's will was as follows:
"Should the surviving partner elect to pay out my share in the partnership in full at any time, or upon a dissolution of said partnership at any time, my said share shall be paid to such persons as may be in existence at that time, namely: My wife, Lutie Streck; my nephews, Wilfred Geissler and Clarence Streck, Jr., and my nieces, Dorothy Jean Geissler and Dorris Tuominen."
This obviously applied to the following provision in the partnership agreement:
"It is further covenanted and agreed that should any one or more of the parties hereto die, the remaining and surviving partner shall have the right, privilege and option to purchase, the interest of the partner so dying at the sum of Sixty Thousand Dollars, to be exercised within one year after the death of such partner, and with the further right to extend said option for a greater period than one year by the payment to the persons designated in the will of the partner so dying, and in the absence of such designation, to the heirs, of the sum of Twenty-Four Hundred Dollars . . ."
Adolph Streck's will was admitted to probate on September 29, 1954 in the probate court of St. Clair County and Clarence H. Streck, his surviving brother, was appointed coexecutor with the First National Bank of Belleville. Appellant, Lutie Streck, renounced her husband's will on July 19, 1955. On August 30, 1955 the coexecutor bank filed a petition in the probate court for authority to accept the payment of $60,000 tendered by Clarence H. Streck on August 26, 1955 pursuant to the aforesaid partnership agreement. Appellant Lutie E. Streck filed an answer to said petition and objected to it on the grounds that the partnership agreement was void and unenforceable. At the time the probate court considered this matter it also heard objections filed by petitioner to the first report of the bank. The probate court found that the partnership agreement was valid and binding and directed that the payment of $60,000 should be accepted; it also found that Clarence H. Streck, the surviving partner, was liable to the deceased partner's estate for the estate's proportionate share of income earned by the business during the period from the date of Adolph Streck's death until the date Clarence H. Streck exercised his option to purchase the deceased partner's interest.
Both of these orders were confirmed upon trial de novo in the Circuit Court. The appellant, Lutie E. Streck, appeals to this court questioning the order finding that the partnership agreement is valid and binding, and the respondent, Clarence H. Streck, individually, cross appeals challenging the validity of the order directing him to account for income earned during the ...