Appeal from the Circuit Court of Sangamon County; the Hon.
Jeanne E. Scott, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
In this appeal which we allowed on plaintiff's application under Supreme Court Rule 308 (87 Ill.2d R. 308) we are called upon to decide two questions certified by the trial court: (1) the right to maintain a partition action during the pendency of an estate in probate, and (2) the authority of the circuit court to stay a partition action pending the resolution of a will contest action involving the estate of one of the co-tenants. For the reasons given below, we affirm the trial court's stay of the partition action until the estate is closed and the will contest is resolved.
The main thrust of this litigation involves a 269-acre tract of farmland situated in Sangamon County which originally was held by Robert Lanterman and his wife Pearl as tenants in common. The parties to the litigation are the children of Robert and Pearl, June, Eileen, Paul, Stanley, and a grandson, Phillip Weyer. On April 12, 1978, Robert died seized of a one-half interest in the land as a tenant in common with his wife. His will was admitted to probate on May 4, 1978, and the main asset of his estate was his interest in the farmland. Under his will, Pearl was granted property of an amount equal in value to the maximum estate tax marital deduction, and the residue of his estate was devised to Pearl Lanterman as trustee. Pearl was to receive the income from the residuary trust for her life and upon Pearl's death, the principal was then to be distributed in nine equal parts, two parts to June, Eileen, Paul and Stanley, and one part to John Smallman as trustee for Phillip Weyer. No order of distribution was made in Robert's estate, but on November 27, 1979, an order was entered closing the estate and discharging the executor.
On April 20, 1982, Pearl died and her will was admitted to probate on May 19, 1982. Under her will, Paul received all of Pearl's interest in the south 189 acres of the Lanterman farm, personal and household effects, and the remainder of Pearl's estate was devised to her descendants per stirpes. On November 9, 1982, Stanley filed a suit to contest the will on grounds of undue influence and lack of testamentary capacity, which suit is still pending. The will in dispute contains an in terrorem clause which disinherits anyone who contests it.
To clear up this tangled pair of estates, Paul had, in the meantime, filed a petition to reopen Robert's estate to make distributions of the various interests set forth in his will as to what Pearl received individually and as trustee of the testamentary trust. Eileen also filed a complaint for an accounting in Robert's estate on August 6, 1982, alleging that Paul had farmed the real estate after Robert's death and refused to make an accounting to the other heirs of the rents and profits from the farm.
Finally, on March 16, 1983, Eileen filed the present suit to partition the Lanterman family farm alleging the following interests subject to division:
"2. That the interest of the Plaintiff and Defendants are as follows:
a. Velma Eileen Smallman and Paul L. Lanterman as Co-Executors of the Estate of R.H. Lanterman and as Co-Trustees of the Testamentary Trust created under the Last Will and Testament of R.H. Lanterman an undivided one-half (1/2) interest;
b. Paul L. Lanterman as Executor of the Estate of Esther Pearl Lanterman an undivided one-half (1/2) interest;
c. Velma Eileen Smallman, individually, Paul L. Lanterman, individually and as co-executor of the Estate of R.H. Lanterman, as co-Trustee of the Testamentary Trust created under the last will and testament of R.H. Lanterman, and as Executor of the Estate of Esther Pearl Lanterman, Vincent Stanley Lanterman, Phillip H. Weyer, June Sylvia Belucci and John E. Smallman, as Trustee for Phillip H. Weyer, have an interest as legatees and devisees under the Last Will and Testament of R.H. Lanterman and under the Last Will and Testament of Esther Pearl Lanterman."
The present appeal arose when a motion to strike the complaint for partition, filed by Paul, came before the trial court on May 5, 1983. At that time, the trial court denied the motion, but on its own motion stayed the partition action until the conclusion of the will contest suit and the determination of the distributions in the estate of Robert Lanterman as to the interest which should have been distributed to Pearl Lanterman, individually, and as trustee of the residuary trust.
Plaintiff argues on appeal that she has an absolute right to partition the real estate and that the court erred in staying her action until the litigation between the Lanterman heirs is concluded. She suggests that the interests received by the parties can be determined in the partition proceeding and that the land can be divided so as to distribute the individual interest of Pearl Lanterman to her estate and the interests received by the beneficiaries of the testamentary trust.
• 1, 2 Section 17-101 of the Code of Civil Procedure defines the circumstances under which land may be partitioned and declares that where lands are held in joint tenancy, or tenancy in common, whether acquired by purchase, legacy, or descent, any one or more interested persons may compel a partition. (Ill. Rev. Stat. 1981, ch. 110, par. 17-101.) The statute has been interpreted to confer an absolute right to partition, but exceptions have arisen to this absolute right where partition is in violation of a person's own agreement, or a restriction imposed upon the estate by a prior owner, or where partition would circumvent established principles of law and public policy. (Hill v. Reno (1883), 112 Ill. 154; Brod v. Brod (1945), 390 Ill. 312, 61 N.E.2d 675.) In the present cause, the will of R.H. Lanterman has imposed no restriction upon partition, but, to the contrary, article five of his will gives express authority to the executors and trustees to partition, and gives further authority to make distribution to the legatees and devisees of their interest in cash, property, or undivided interests in property. The executors-trustees, Paul and Eileen, have not agreed upon a distribution to the legatees and devisees, and we note it merely to show the absence of a restriction upon partition by the testator, Robert Lanterman.
• 3 As to whether partition may be granted while an estate is in probate, we find that the supreme court has spoken to this question on several occasions and has indicated that a decree for partition while the estate is in probate is not reversible error although the practice is not approved prior to the settlement of estate claims. (Ellis v. Dumond (1913), 259 Ill. 483, 102 N.E. 801; Hall v. Gabbert (1904), 213 Ill. 208, 72 N.E. 806.) In Ellis, decedent left a will leaving his wife a homestead and 160 acres of land. Following testator's death, but prior to the settlement of his estate, one of the children sought to partition a tract of real estate which the testator had purchased after his will was executed. The land was intestate property since it was not covered by any provision of his will. Testator's wife had made a claim for a widow's award which had not been distributed to her, and her claim was still pending when the partition suit ...