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Reynolds v. Lacey

OPINION FILED AUGUST 15, 1979.

MARDELLA KLEBBA REYNOLDS, PLAINTIFF-APPELLANT,

v.

ED LACEY, TRUSTEE UNDER THE WILL OF B.A. KLEBBA, DECEASED, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Jefferson County; the Hon. ROBERT W. WHITMER, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE KASSERMAN delivered the opinion of the court:

Plaintiff appeals from a judgment of the circuit court of Jefferson County dismissing her complaint for partition of real property. Numerous issues are raised, but the determinative issue is whether the trial court's finding that partition would not be in the best interests of one of the minor defendants is sufficient to sustain the dismissal of the complaint below. We find that it is.

Plaintiff was divorced from her husband, B.A. Klebba, on September 9, 1967. The divorce decree denied plaintiff permanent homestead or dower rights in Klebba's realty. Plaintiff appealed from this order. On July 23, 1968, Klebba died. This court reversed the decree and awarded plaintiff homestead and dower rights on October 22, 1969.

Klebba's estate passed into a testamentary trust upon his death. In 1971 or 1972, a parcel of trust realty referred to as Tract I was sold to pay debts. Plaintiff's dower interest was valued at $8841.33, and the court ordered that this amount be made a lien against a second parcel of trust realty (Tract II).

On October 31, 1972, the court entered a decree granting plaintiff one-third of all rents, profits, income and proceeds derived from Tract II. It also ordered that the lien from the sale of Tract I and an amount equal to one-third of the net income from all of the trust real estate since Klebba's death be incorporated into a mortgage against Tract II.

On January 17, 1978, plaintiff filed her complaint for partition of Tract II. The trust beneficiaries, one of whom was a minor, moved to dismiss the complaint on the ground that the plaintiff had no partitionable interest in the property. A guardian ad litem was appointed to represent the minor the day of the hearing of the motion. At the conclusion of the hearing the trial court found that partition would not be in the best interest of the minor defendant and dismissed plaintiff's complaint. Plaintiff appeals.

• 1, 2 It has long been the law in the State of Illinois that the court will jealously guard the interests of minors and deny partition if it would be contrary to their best interests. Partition being an equitable proceeding, the court has it within its general equitable supervision to protect the rights and interests of minors. (Ames v. Ames (1894), 148 Ill. 321, 36 N.E. 110; Gibbs v. Andrews (1921), 299 Ill. 510, 132 N.E. 544; Hartmann v. Hartmann (1871), 59 Ill. 103.) The Illinois Supreme Court long ago spoke to the situation here at hand:

"When a court of equity is called upon by a bill to partition lands in which infants are interested, it is the duty of the chancellor to ascertain whether the partition will result beneficially to such infants or to their detriment, and if it is found that it will not be for their best interests, partition should be denied. [Citations.]" (Miller v. Lanning (1904), 211 Ill. 620, 622, 71 N.E. 1115; see also Tanner v. Tanner (1927), 326 Ill. 302, 157 N.E. 161.)

Here, the trial court made the explicit finding that "one of the parties in interest in this cause is a minor whose interests must be closely guarded by the court and that partition is not in the best interests of said minor."

• 3 We find no reason to reverse the trial court's dismissal of the complaint. The ruling of the trial judge is presumed to be correct, especially since the appellant has furnished no transcript of the hearing. (Dean v. Dean (1948), 401 Ill. 406, 82 N.E.2d 342.) Therefore, the decision of the circuit court of Jefferson County is affirmed, and the remaining issues raised by appellant need not be addressed.

Affirmed.

KUNCE, J., concurs.

Mr. JUSTICE KASSERMAN, specially ...

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