Appeal from the Circuit Court of St. Clair County; the Hon.
QUINTEN SPIVEY, Judge, presiding. Decree affirmed.
On May 21, 1909, Jacob and Florine Siekmann, husband and wife, became the owners, as tenants in common, of Lot 16 in Block 14 in Edgemont, East St. Louis, Illinois. This lot was improved by a dwelling house in which the owners lived until the wife, Florine, went to a hospital in 1937, and there died, intestate, on March 3, 1938, leaving her husband, Jacob, and their son, Elois, only heirs at law her surviving. After Florine entered the hospital in 1937, Elois, the surviving son, and his family moved into the home with the father, Jacob, and they lived there until December 1939. Thereafter Jacob and Elois and Elois' family vacated the property and moved to property located in Signal Hill Subdivision in East St. Louis. On August 24, 1940, Jacob remarried, and on May 10, 1941, he and his then wife, Evelyn, returned to Jacob's former home, being the property involved in this litigation, and while living in this property with his wife, Evelyn, Jacob died testate on February 7, 1961, leaving Evelyn, his widow, and Elois, his son, him surviving.
By the provisions of his will, Jacob bequeathed $5 to his son and the residue of his estate to his widow. On April 17, 1961, Jacob's will was duly admitted to probate, and his widow, Evelyn T. Siekmann was appointed and qualified as executor thereof.
On July 6, 1961, Evelyn T. Siekmann, individually and as executor of her husband's will, filed the instant complaint for partition of the premises, making her stepson, Elois Siekmann, sole defendant. The defendant answered the complaint and filed a counterclaim. By his counterclaim he sought to recover a money judgment in the sum of $4989.39 against Evelyn Siekmann for rent of the premises from March 3, 1938 to March 3, 1961. A reply was filed to this counterclaim, and the issues made by the pleadings were referred to a Special Master to take the evidence and report his conclusions to the court. The Special Master did so, and a decree was rendered in accordance with the recommendations of the Master. To reverse this decree defendant appeals, and plaintiff has filed a cross-appeal.
The decree appealed from approved the Special Master's report and found that the material allegations of the complaint were proven and were true; that at the time of the death of Jacob Siekmann he was the owner of an undivided two-third interest in the described premises, plus an estate of homestead from March 3, 1938, the date of his former wife, Florine's death, until he died on February 7, 1961; that during all this time Jacob paid all taxes, insurance and also paid for the necessary repairs and improvements thereon, and received no use or benefit of the premises in greater proportion than his interest therein; that therefore, defendant is not entitled to an accounting or claim against the plaintiff, and his prayer for judgment for $4989.39 was denied; that plaintiff is chargeable with rent for the use and occupancy of said premises from February 7, 1961 at the rate of $200 per year, less one-third of the taxes, insurance premiums and repairs paid by her since the date of Jacob's death; that plaintiff owns a homestead estate of $2,500 value in the undivided two-thirds interest in said premises, which her husband owned at the time of his death; that plaintiff is also seized of a two-third interest in said premises subject to her said homestead estate; that defendant is the owner in fee of an undivided one-third of said premises and has a lien on plaintiff's two-third interest therein for rent at the rate of $200 per year, less one-third of the amount plaintiff has paid, since February 7, 1961, for taxes, insurance and necessary repairs; that the undivided interests of both parties are subject to any deficiency that may exist in the administration of Jacob's estate costs and a reasonable attorney fee in favor of the plaintiff for her attorneys fees in this cause, to be subsequently determined by the court. The decree appointed commissioners to make partition according to its findings, and if unable to do so, then to appraise the value of the premises and report its conclusion to the court.
Paragraph five of the original complaint filed herein alleged that the parties hereto were seized of the premises involved herein, and that Evelyn T. Siekmann is seized of an undivided two-thirds thereof, subject to the debts, claims and costs of administration of the estate of Jacob Siekmann, and that Elois Siekmann is seized of an undivided one-third interest therein, subject to the right of homestead of Evelyn T. Siekmann, and subject to one-third of the debts and claims against the estate of Florine Siekmann, paid by Jacob Siekmann. The answer of the defendant admitted the allegations of this paragraph, except he denied "any and all allegations of homestead of Evelyn T. Siekmann."
In his counterclaim, which was filed with defendant's answer on August 7, 1961, Elois Siekmann alleged that Jacob and Florine Siekmann were the owners in fee of the premises involved herein; that Florine died on March 3, 1938, and left her surviving as her only heirs at law her husband and son, and that no administration was taken on her estate; that the husband, Jacob, died on February 7, 1961, and that there is due and owing Elois Siekmann one-third of the rental value of the premises from March 3, 1938 to March 3, 1961, the sum of $5,577.96, or rent at $60.53 per month, less one-third of the taxes from 1938 to 1959, inclusive, being $535.57, and one-third of the insurance being $53, or a total of $588.57, leaving a net amount of $4,989.39 due defendant, as rent, from the plaintiff. The counterclaimant prayed judgment against Elois Siekmann for this amount. The answer to the counterclaim admitted the ownership of the property, and the death of the owners, but denied that any sum was due defendant from plaintiff, as alleged, for rent.
It is insisted by appellant that Jacob abandoned his homestead estate in these premises when he left the same in December, 1939, after the death of his first wife, and remained away until after his remarriage, and until May 10, 1941. The record does not disclose whether the premises were or were not occupied during this period of sixteen or seventeen months. From May 10, 1941 until his death on February 7, 1961 this property was the home of the plaintiff and her husband, Jacob Siekmann. Counsel for appellant state that under these facts Jacob "cancelled any homestead estate in his wife's half interest in the property when he left this property in December, 1939."
Upon the death of his wife, Florine, on March 3, 1938, Jacob having failed to file an election to take dower, received as his absolute estate, in lieu of dower, one-third of Florine's undivided one-half interest in the premises involved herein, which interest, in addition to the undivided one-half he then owned, increased his interest to an undivided two-thirds, and this is the interest which passed to plaintiff under Jacob's will, and this is the interest she claimed under her complaint and which defendant in his answer and counterclaim recognized.
After the evidence had been taken and the Special Master's supplemental report had been filed, and after the court had entered its order on April 23, 1963, that all objections to the Special Master's report should stand as exceptions, the defendant by leave of court, withdrew his answer to Paragraph five of the complaint, wherein he admitted that plaintiff was the owner of an undivided two-thirds of the premises involved herein, and that he was the owner of the undivided one-third interest therein, and in lieu of this admission denied all the allegations of this paragraph of the complaint, and as an affirmative defense alleged that he was answering as a creditor and not as an heir of Jacob Siekmann, and charged that, as executor, plaintiff filed her inventory of the real and personal estate in the Jacob Siekmann estate in the Probate Court of St. Clair County; that the proof disclosed that the total claims allowed in the Probate Court were in excess of the value of the personalty, excluding her widow's award of $1,500, and also the 1960 and 1961 taxes on the property and the costs of administration; that under Paragraphs ten and twelve of Chapter 59 of our statutes, the will of Jacob Siekmann is fraudulent and void; that the plaintiff did not correctly allege the interest of the parties to this proceeding, and is therefore not entitled to the allowance of an attorney fee.
It is appellant's theory, says his counsel, that appellant is defending this suit and prosecuting his counterclaim as a creditor of Jacob Siekmann; that the provisions of Sections 10 and 12 of Chapter 59 of our Statute of Frauds and Perjuries renders Jacob's will void and fraudulent as to appellant, inasmuch as it was stipulated that the personal estate of the testator is less than the claims allowed against his estate. In support of this contention, counsel cite Durflinger v. Arnold, 329 Ill. 93, 160 N.E. 172; Straus Brothers Co. v. Rush, 241 Ill. App. 216; In re Hinshaw's Estate, 19 Ill. App.2d 239, 153 N.E.2d 422, and Ryan v. Jones, 15 Ill. 1. The record shows that the will of Jacob Siekmann has been duly proven and admitted to probate, and the time for presenting claims against the estate has elapsed, but it does not follow that because the allowed claims are in excess of the personal estate coming into the hands of the personal representative of decedent, that the provision of the will devising testator's real estate to appellee is invalidated. What Section 12 of the Statute of Frauds and Perjuries provides is that when any land is devised to any devisee, and the personal estate of the devisor shall be insufficient to discharge the just demands against the devisor's estate, such devisee shall be liable to the creditor of the devisor to the full amount of the lands so devised to the devisee. (Ill. Rev Stats 1963, c 59, § 12.)
In support of appellant's contention that plaintiff is individually liable to appellant for rent from May 10, 1941 to February 7, 1961, counsel argue that rent is a family expense item; that appellant was the owner of an undivided interest in the premises when appellee and her husband took possession of the property on May 10, 1941; that the evidence discloses that the average annual rental is $600 for the years from March 3, 1938, the date of Florine's death, to February 7, 1961, when Jacob died; that the amount due appellant for rent, and which he seeks to recover from plaintiff by his counterclaim, is $300 per year, for this period of almost twenty years, less the amount paid by Jacob for taxes, necessary repairs and insurance.
The statute provides that when one or more tenants in common in real estate shall take and use the profits or benefits thereof, in greater proportion than his interest, such person, or his executor, shall account therefor to his cotenant. (Ill. Rev Stats c 76, § 5.) The Special Master, and the decree, found that Jacob Siekmann received no use or benefit of the premises in greater proportion than his interest therein and that therefore defendant is not entitled to an accounting and consequently dismissed the counterclaim, and denied defendant a judgment for the $4989.39 he sought to recover.
It is the theory of appellee that upon the death of Florine Siekmann, her spouse, Jacob, inherited one-third of her one-half interest in the premises involved herein, and also a homestead estate therein, and that until the payment or tender to him of the value of this homestead estate he was entitled to the exclusive enjoyment of the property, and under no obligation to pay rent on the interest Elois Siekmann inherited from his mother. In support of this contention, appellee cites Powell v. Powell, 247 Ill. 432, 93 N.E. 432. It appeared in that case that Ann Powell died intestate on February 22, 1907, leaving her husband and six children, and a daughter of a deceased son, her surviving. At the time of her death she was the owner of a house and lot in Peoria, which was occupied by her and her husband as a homestead at the time of her death. Thereafter, Patrick Powell filed his complaint and its alternate prayer was for the assignment of his homestead estate and the charge was made that he had been deprived of the use of his homestead by the wrongful conduct of some of his children and requesting a finding as to the amount of rent the children should pay him for the premises during the time they were occupied adversely to him after the death of his wife. The trial court entered a decree appointing commissioners to set off his homestead and required the children to pay their father $6 per month for use of the premises so occupied by them without his consent. The commissioners so appointed reported that the premises were so situated that homestead and dower could not be assigned and valued the premises at $2,400. This report was approved by the ...