Appeal from the Circuit Court of Moultrie County; the Hon.
Worthy B. Kranz, Judge, presiding.
JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
This is a consolidated appeal contesting the propriety of the trial court's order apportioning attorney fees and expenses pursuant to section 17-125 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 17-125) in two separate partition actions. Initially, the individual plaintiffs and defendants were brothers, sisters, and the representative of a deceased brother's estate. During the course of the litigation, several parties died and their representatives were substituted and continued the actions. Defendants argue that the trial court erred in awarding attorney fees because plaintiffs' partition complaints did not properly set forth the parties' interests in the properties subject to partition, plaintiffs' attorneys were not fair and impartial to all, defendants interposed substantial defenses to the partition actions, and collateral matters were involved in the partition actions.
We reverse the award of attorney fees in cause No. 4-86-0315, affirm the award of expenses, and affirm the award of attorney fees and expenses in cause No. 4-86-0316. The expenses which were awarded in cause No. 4-86-0315 were those necessary to the partition action. Thus, ultimately all parties benefited from plaintiffs' attorneys' actions. Awarding plaintiffs their expenses as costs was, therefore, proper.
The partition action in cause No. 4-86-0315 began on October 23, 1981, when Everett Bailey, Jr., John Bailey, Rex Bailey, Donald Bailey, and Diamond Woolen brought a partition action naming Rita June Bailey, individually and as trustee under the will of Leta D. Bailey, as well as Leta J. Shelton, Lee H. Bailey, the State Bank of Arthur, Consolidated Rail Corporation, the State of Illinois, and the town of Lovington as defendants. The complaint alleged that plaintiffs and the individual defendants were tenants in common of certain property.
Everett M. Bailey, Sr., died in 1939 leaving one-third interest of the property to his widow, Leta D. Bailey, and two twenty-sevenths interest of the property to each child. The complaint alleged that Leta D. Bailey died leaving a will which devised her one-third interest to Rita June Bailey under a trust. Pursuant to the trust, Rita was awarded the net income, but if the premises were sold, she would receive one-half of the net proceeds with her brothers and sisters dividing the balance. Construction of the Leta D. Bailey will in the partition action was necessary prior to the partition order. The complaint further alleged Billie Dale Bailey, a brother, died. The State Bank of Arthur was the administrator of his estate. The complaint noted that a petition contesting the validity of his will had been filed.
The complaint further alleged that the surviving brothers and sisters each owned an undivided two twenty-sevenths interest in the property and owned the undivided two twenty-sevenths interest held by Billie D. Bailey in shares which were uncertain because of the will contest. Finally, the complaint alleged that the children, except Billie Dale, owned an undivided one-third interest through their mother. It alleged the other defendants had right-of-ways and easements across the property.
Rita, Lee, Leta, and the State Bank of Arthur filed a motion to dismiss the complaint alleging partition was premature because the shares of the parties were uncertain due to the will contest and the will construction issues. The motion further alleged that the interests of the parties could not be determined according to the complaint and proffered a different construction of the Leta D. Bailey will, which would preclude partition of the one-third interest. Defendants attached copies of the Leta D. Bailey will to their motion.
Cause No. 4-86-0316 began on May 14, 1982, when John, Everett M., Rex, Donald, and Dorcas Bailey, and Diamond Woolen filed a partition action. The defendants were the same as the defendants in the earlier action. The complaint alleged that the individual parties owned as tenants in common a separate parcel of farm property through John H. Bailey, their grandfather. John H. Bailey died leaving their father, Everett M. Bailey, Sr., a life estate in the property. Everett M. Bailey, Sr., died leaving his children, Everett, John, Rex, Donald, Diamond, Lee, Leta, Rita, and Billie Dale owners of an undivided one-ninth interest in the property. Through conveyance, John acquired the interest held by Everett, Rex, and Diamond subject to mineral rights. John and Dorcas held as joint tenants the interest originally held by Leta subject to mineral rights. Rita conveyed her entire interest to John.
The complaint further alleged that Billie Dale Bailey died with the State Bank of Arthur appointed as his administrator and a petition had been filed contesting the validity of his will. The complaint set forth the ownership interests of the parties. It noted that their interest in the land held by Billie Dale was uncertain because of the will contest. The complaint further alleged the railway company, State, and city, had easements and right-of-ways across the property.
Defendants made a motion to dismiss the cause alleging the interests of the parties were uncertain and that plaintiffs had previously filed a petition to contest the will of Billie Dale Bailey. They asserted that until the will contest was settled, the court could not declare the rights of the parties in the property.
The trial court denied defendants' motions to dismiss in both partition causes and denied defendants' motions for appointment of receivers. Plaintiffs filed motions to amend their complaints in both causes. The first amended complaint in each cause corrected the description of the property subject to partition, eliminating the interest owned in fee by the railroad companies. The trial court granted the State of Illinois' motion to dismiss it from both causes.
On October 4, 1982, defendants in both causes filed answers to the complaints and counterclaims. The counterclaims set forth descriptions of the properties which eliminated the railroads' interests. The trial court allowed plaintiffs' motions to amend their complaints and dismissed the counterclaims.
The defendants objected to the trial court's jurisdiction to hear the partition actions since Billie D. Bailey's will contest was on appeal. (See Bailey v. State Bank (1983), 121 Ill. App.3d 17, 458 N.E.2d 1326.) The trial court found that it had jurisdiction over the partition actions under the statute because the parties had a fee interest in the properties.
The parties in cause No. 4-86-0315 presented detailed memoranda on the construction of the Leta D. Bailey will and took opposing views as to whether the trust applied to the property in question, the nature of the trust, and whether Rita held a fee interest in all of the property. The trial court rejected both the plaintiffs' and the defendants' proffered constructions of the trust clause in the Leta D. Bailey will. It interpreted the trust clause and found that Rita had a life estate with a power of sale which had lapsed. It then determined the distribution of the proceeds should the property in question be sold in the partition action. The trial court's construction of the Leta D. Bailey trust was incorporated into the partition order in cause No. 4-86-0315. Essentially, the court divided ...