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People For the Use of Miller v. Myer

FEBRUARY 17, 1964.

PEOPLE OF THE STATE OF ILLINOIS, FOR THE USE OF WILLIAM L. MILLER, AS ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF MARGARET H. TOWNLEY, PLAINTIFF-APPELLEE, PLAINTIFF-CROSS APPELLANT,

v.

JOSEPH MYER, DEFENDANT-CROSS-APPELLEE, AND THE NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, A PENNSYLVANIA CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Bureau County; the Hon. WALTER DIXON, Judge, presiding. Reversed in part and affirmed in part. Judgment here.

ROETH, J.

This case is before this court upon a stipulation of facts. From that stipulation the following appears:

On October 19, 1955, a petition was filed in the County Court of Bureau County, Illinois, by L.D. Spaulding, Jr., alleging that Margaret Townley was incompetent, that she owned personal estate of the value of $15,000, and that she had gross annual income from real estate of $1,200; said petition prayed that Zelda Neiman be appointed as conservator for said Margaret Townley. Thereafter on October 25, 1955, pursuant to said petition, Margaret Townley was adjudged incompetent and Zelda Neiman was appointed as conservator for said Margaret Townley, Incompetent, upon said Zelda Neiman entering into bond in the penal sum of $30,000 with two sureties or in the penal sum of $22,500 with one corporate surety. Zelda Neiman filed in said court her bond in the penal sum of $30,000, with Joseph Myer, defendant herein, and L.D. Spaulding, Jr., as sureties thereon, which bond was approved by the court. This bond provided as follows:

"Know all men by these presents, That we Zelda Neiman, as Principal and Joseph Myer and L.D. Spaulding, Jr., as Sureties, all of the County of Bureau and State of Illinois, are bound to the People of the State of Illinois in the penal sum of Thirty Thousand and no/100 ($30,000.00) — Dollars, lawful money of the United States, for payment of which we and each of us bind ourselves, and our heirs, executors, and administrators, jointly and severally by these presents.

"THE CONDITION OF THIS OBLIGATION IS SUCH That if the said Zelda Neiman, Conservator of the estate and person of Margaret Townley, incompetent, faithfully discharges the duties of her office according to law and does all acts which at any time may be required of her by law or a court, then this obligation is void, otherwise in full force.

"Witness our hands and seals this 17th day of November, 1955.

Zelda Neiman (Seal) Joseph Myer (Seal) L.D. Spaulding, Jr."

Margaret Townley was the owner of an undivided one-half interest in certain real estate in Bureau County. On October 15, 1959, Zelda Neiman, as Conservator for said incompetent, filed a complaint for partition of said estate in the Circuit Court of Bureau County, Illinois; that pursuant to said complaint a decree for partition was entered by the court on December 22, 1959, and said premises were subsequently sold by the Master in Chancery on January 22, 1960.

On March 25, 1960, an order was entered by the County Court of Bureau County, Illinois, in the Conservatorship of Margaret Townley, Incompetent, finding that said complaint for partition had been theretofore filed by said Conservator, that said premises had been sold by the Master in Chancery, that distribution was yet to be made, that the share of said Margaret Townley to come into the hands of said Conservator was approximately $30,000, and that said Conservator had submitted her Special Bond for Sale of Real Estate in the penal sum of $45,000 with the National Union Fire Insurance Company of Pittsburgh, Pennsylvania, defendant herein, as surety thereon; that it was thereupon ordered and adjudged by the court that the acts of said Conservator in filing said complaint in partition be approved, that the Special Bond for Sale of Real Estate be approved, and that said Conservator be authorized and directed to collect from the Master in Chancery the proceeds from the sale of said premises due to Margaret Townley, Incompetent. This Special Bond for the Sale of Real Estate was secured from a duly authorized agent of The National Union Fire Insurance Company of Pittsburgh on March 23, 1960, and at the time of the execution of it by the agent the company had no knowledge, actual or implied, of the prior partition proceedings. This Special Bond for the Sale of Real Estate provided as follows:

"KNOW ALL MEN BY THESE PRESENTS That we Zelda Neiman, as Principal, of the County of Bureau and State of Illinois, and The National Union Fire Insurance Company, of Pittsburgh, Pennsylvania, a Corporation of the State of Pennsylvania, as Surety, are bound to the People of the State of Illinois in the penal sum of Forty Five Thousand and no/100 ($45,000.00) Dollars lawful money of the United States, for payment of which we and each of us bind ourselves and our heirs, executors and administrators, jointly and severally, by these presents.

"WHEREAS, Zelda Neiman, as Conservator of the Estate of Margaret Townley, Incompetent, is about to sell real estate,

"NOW, THEREFORE, the condition of this obligation is such that if the said Zelda Neiman, as Conservator, shall dispose of the proceeds of the said sale in the manner required by law, then this obligation is void; otherwise it remains in full force.

"Witness our hands and seals this 23rd day of ...


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