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Keller v. Schobert

OPINION FILED SEPTEMBER 27, 1974.

ESTHER KELLER, APPELLANT,

v.

GEORGE W. SCHOBERT ET AL., APPELLEES.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County; the Hon. Robert W. Malmquist, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The plaintiff, Esther Keller, brought this action in the circuit court of La Salle County to partition certain real estate which her mother, Louise Schobert, owned at the time of her death. The defendants are the brothers and sisters of the plaintiff; one brother, George Schobert, also is named a party defendant in his capacity as executor of the will of Louise Schobert, deceased. The trial court dismissed the complaint for partition upon the motion of the defendants, and the Appellate Court for the Third District affirmed. (13 Ill. App.3d 637.) We allowed the plaintiff's petition for leave to appeal.

Louise Schobert died February 12, 1970, owning certain real estate. On March 5, 1970, her son, George Schobert, was appointed executor of the estate. On September 25, 1972, and on October 7, 1972, George Schobert, the executor, entered into separate agreements for deed whereby he agreed to sell certain premises theretofore owned by Louise Schobert; the executor's sons were the purchasers under one contract for 76.38 acres of land at $610 per acre, and two sons of defendant Edna Walter (a daughter of the decedent) were the purchasers under another contract for 100 acres of land at $610 per acre, and $6800 for the improvements thereon. The executor alleges that the sale price for said land was based on the assessed value of the property for Federal estate taxes. At the time these agreements were executed, the Federal estate tax proceedings had not been completed and that tax, as well as the Illinois inheritance tax, was unliquidated.

The plaintiff filed a partition suit in September 1972, contending that she is entitled to seek partition in that she has an interest in the real estate under the will of her mother. The defendants contend that under the will there was a conversion of the real property, and the plaintiff had no legal interest in the real estate sufficient to seek a partition. The plaintiff contends: (1) that there was no conversion under the will, and (2) in the alternative, that if there was a conversion, there was then an equitable reconversion due to the lapse of time.

The relevant portions of the will state the following:

"CLAUSE 2: My Executor, hereinafter named, is hereby authorized and directed to reduce all of my estate into cash as soon after my death as may be conveniently done and distribute the net proceeds of such sale or sales as is hereinafter set forth.

CLAUSE 3: Although I have authorized and directed my executor to reduce my estate to cash he is hereby advised and directed to abide by the options which I do hereby grant unto my son, George W. Schobert, and my daughter, Helen Schobert, which options are as follows: * * *

CLAUSE 4: In the event that the option to purchase any real estate is not exercised, within the time prescribed, then such real estate, together with any and all other real estate of which I die possessed, shall be sold by my executor, either at public or private sale, without order of court and at such time or times and upon such terms and conditions as he may deem to be for the best interest of my estate.

CLAUSE 5: When my estate has been reduced to cash, my executor is hereby authorized and directed to make distribution of the net proceeds then remaining, after the payment of all my debts and costs and expenses of administration, in the manner following: * * *." (Then follows a provision for the distribution of 1/6 of the proceeds of such sale to each of the children.)

Clause 7 of the will then sets forth a standard form of powers and discretions which are given to the executor, including, "* * * to distribute the residue of my estate in cash or in kind or partly in each * * *."

Clause 8 then refers to the powers given to a trustee, there being a trust for a portion of the proceeds to be distributed to the one son. Among the powers given the trustee is the power "To retain any property transferred to the trustee" and the power "To sell at public or private sale * * * any real or personal property of the trust."

In clause 3 of the will, there is a description of the property that the son is granted an option to buy, and of the property that the daughter is granted an option to buy, plus further terms of the option, including the limitation that the named children must exercise the option within 6 months from the date of the death of the testatrix.

The real property included in the options, which options ran to the son and daughter of the decedent, was not included in the partition suit, although as of September 15, 1972, the date when the complaint for ...


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