Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Affirmed in part, reversed and
remanded in part.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Plaintiffs appeal from two orders, one of which dismissed their cause of action as contained in the amended complaint, and the other which allowed a fee of $1,800 to the guardian ad litem.
A summary of the allegations of the amended complaint follows. Joseph N. Neurauter, deceased, and the father of plaintiffs, was engaged in the business of distributing beer. In 1907, he and his wife, Anna Neurauter, also deceased, acquired an apartment building at 2952 West Nelson Street, Chicago, from funds earned in the business. In 1936, the property at 2959 West Nelson Street was also acquired.
The business was designated in 1933 as "Joseph N. Neurauter Beer Distributors." Joseph N. Neurauter died a month later and the business was carried on under the name of "Edward J. Neurauter, d/b/a Neurauter Brothers." The business was duly licensed by the State under this name until August, 1951. At that time, the name of the business was changed to "Henry Leo Neurauter, d/b/a Neurauter Brothers," and functioned as such until 1966. Other commercial activities were carried on in the name of "Herbert J. Neurauter" from May, 1954 to April, 1964.
From 1933 or 1934 to her death in December, 1963, Adelaide Reiner, daughter of Joseph N. and Anna Neurauter and sister of plaintiffs, had maintained the books and records and prepared all financial statements, reports, tax returns, and other required documents for the business. During that same period, plaintiffs devoted their time and effort to the family business under an oral agreement of partnership with their mother, Anna Neurauter, and their sister, Adelaide Reiner, one of the terms of which was that the partnership assets were to be shared equally by them, as the children of Anna Neurauter, after Anna's death. Anna's sole source of funds and income arose from the family partnership.
Net proceeds from the partnership were invested by Anna Neurauter and Adelaide Reiner for various purposes, including the retirement of mortgages on the above-described real estate, the making of loans, and the acquisition of securities. Partnership funds were also deposited in checking and savings accounts under the names of Anna Neurauter and Adelaide Reiner. After 1933, Anna Neurauter had lived in the same apartment with Adelaide Reiner and her husband or in an apartment immediately adjacent. The Reiners exercised undue influence and control over Anna's affairs, and Adelaide Reiner concealed documents and "concealed, secreted and hid all of the books, records and accounts of the family partnership."
Anna Neurauter acknowledged, on numerous occasions, that all of the real estate, securities, and other property held in her name, or in the name of Adelaide or John Reiner, were, in fact, assets of the partnership, and that "they were being held in individual names for purposes of convenience of management and administration." Prior to her death in July, 1960, all of the partnership assets under her control had been placed in joint tenancy with Adelaide Reiner, or in the latter's name alone. After Anna's death, Adelaide Reiner transferred these assets into joint tenancy with her husband, defendant John Reiner. Anna Neurauter's estate was opened and her will filed for probate on February 27, 1964, approximately sixty days after Adelaide Reiner's death. (The original complaint in this cause was filed December 20, 1965).
Surviving Adelaide Reiner were her husband, John Reiner, who claims an interest in certain personal property held in his name individually or as a surviving joint tenant, and her minor children, all of whom claim an interest in her estate and are the defendants in this case.
The amended complaint concluded with a prayer that the court enter an order finding that John Reiner holds all of the properties referred to as assets of a constructive trust for the benefit of all members of the partnership, and that the defendants be enjoined from transferring or conveying their interest in the subject real estate.
An answer to the amended complaint was filed by the guardian ad litem which did not contradict or contest the plaintiffs' allegations of fact; rather, it prayed that the rights and interests of the minor defendants "be fully protected by such appropriate orders as to the Court shall seem meet and proper." Defendant John Reiner was granted leave to file interrogatories prior to filing his answer, which interrogatories were answered by plaintiffs. Reiner then filed an answer to the amended complaint. Subsequently, the guardian ad litem filed a motion to dismiss the amended complaint, which was sustained by the trial court, and this appeal followed.
[1-3] The initial question presented is whether plaintiffs pleaded sufficient allegations to invoke relief under their theory of constructive trust. Pleadings must be informative of the issues and the cause of action relied upon so as to enable the court to apply the law and the adverse party to meet the issues at trial. Johnson v. North American Life & Casualty Co., 100 Ill. App.2d 212, 219, 241 N.E.2d 332; Hyland v. Waite, 349 Ill. App. 213, 110 N.E.2d 457. We find that there are sufficient facts alleged in the instant complaint to meet these requirements, bearing in mind that at this stage the court considers the factual allegations to determine not the probability but only the possibility of recovery. Palier v. New City Iron Works, 81 Ill. App.2d 1, 221 N.E.2d 67.
Defendants also, and primarily, claim that the instant action is barred by the statute of limitations which provides that "actions on unwritten contracts, expressed or implied . . . or to recover the possession of personal property . . . and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued." Ill Rev Stats (1965), c 83, § 16. They contend that plaintiffs' claim is premised on recovery from the estate of Anna Neurauter, who died on July 27, 1960, and that, since this action was not instituted until December 20, 1965, the statute had run and the action is barred. Defendants also contend that plaintiffs are barred because they did not contest the will of Anna Neurauter within nine months following the admission of her will to probate. Ill Rev Stats (1965), c 3, § 90. The complaint, however, does not pray for recovery against Anna Neurauter's estate, nor is it based upon the setting aside of her will. Rather, it expressly seeks to impose a constructive trust on assets held by defendants by virtue of an oral agreement between plaintiffs and Adelaide Reiner and Anna Neurauter.
[4-6] "A constructive trust is one raised by operation of law as distinguished from one created by the express words of some written instrument. It is imposed upon a person by a court of equity upon the ground of public policy so as to prevent him from holding for his own benefit an advantage which he has gained by reason of a fiduciary relation subsisting between him and others and for whose benefit it is his duty to act." Compton v. Compton, 414 Ill. 149, 156, 111 N.E.2d 109. An essential element of a constructive trust in the context of this case, is an allegation that a "dominant party" has taken advantage of a fiduciary relationship by obtaining legal title to property in violation of a duty owing to another who is equitably entitled thereto. Compton, supra, at page 157. The requisite fiduciary relationship exists where one reposes trust and confidence in the dominant party who thereby gains an influence and superiority. "The origin of the confidence and the source of influence are immaterial. It exists when one person trusts in and relies on another." Anderson v. Lybeck, 15 Ill.2d 227, 232, 154 N.E.2d 259; Stahl v. Stahl, 214 Ill. 131, 73 N.E. 319; Stephenson v. Kulichek, 410 Ill. 139, 101 N.E.2d 542.
In the instant case, plaintiffs have pleaded facts which are sufficient to require the imposition of a constructive trust. Specifically, plaintiffs have asserted that Adelaide Reiner had a confidential relationship with Anna Neurauter in both business and domestic life. Anna Neurauter's alleged oral agreement to share the assets of the family business in a partnership equally with plaintiffs was jeopardized by the alleged undue influence asserted by ...