{ "id": 3227015, "name": "MARDELLA KLEBBA REYNOLDS, Plaintiff-Appellant, v. ED LACEY, Trustee Under the Will of B. A. Klebba, Deceased, et al., Defendants-Appellees", "name_abbreviation": "Reynolds v. Lacey", "decision_date": "1979-08-15", "docket_number": "No. 78-320", "first_page": "1", "last_page": "5", "citations": [ { "type": "official", "cite": "81 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "82 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "401 Ill. 406", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306790 ], "opinion_index": 0, "case_paths": [ "/ill/401/0406-01" ] }, { "cite": "157 N.E. 161", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "326 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5188426 ], "opinion_index": 0, "case_paths": [ "/ill/326/0302-01" ] }, { "cite": "71 N.E. 1115", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1927, "opinion_index": 0 }, { "cite": "211 Ill. 620", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3306939 ], "year": 1927, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill/211/0620-01" ] }, { "cite": "59 Ill. 103", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5233383 ], "opinion_index": 0, "case_paths": [ "/ill/59/0103-01" ] }, { "cite": "132 N.E. 544", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1871, "opinion_index": 0 }, { "cite": "299 Ill. 510", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5023991 ], "year": 1871, "opinion_index": 0, "case_paths": [ "/ill/299/0510-01" ] }, { "cite": "36 N.E. 110", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1921, "opinion_index": 0 }, { "cite": "148 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3059888 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ill/148/0321-01" ] }, { "cite": "5 Ill. App. 289", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4763085 ], "opinion_index": 1, "case_paths": [ "/ill-app/5/0289-01" ] }, { "cite": "162 N.E. 855", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "331 Ill. 287", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5211667 ], "opinion_index": 1, "case_paths": [ "/ill/331/0287-01" ] }, { "cite": "105 N.E. 31", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "263 Ill. 136", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4762912 ], "opinion_index": 1, "case_paths": [ "/ill/263/0136-01" ] }, { "cite": "159 N.E. 274", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "328 Ill. 136", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5196846 ], "opinion_index": 1, "case_paths": [ "/ill/328/0136-01" ] }, { "cite": "183 N.E. 13", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "349 Ill. 642", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2603954 ], "opinion_index": 1, "case_paths": [ "/ill/349/0642-01" ] }, { "cite": "227 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1932, "opinion_index": 1 }, { "cite": "85 Ill. App. 2d 375", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2552294 ], "year": 1932, "opinion_index": 1, "case_paths": [ "/ill-app-2d/85/0375-01" ] } ], "analysis": { "cardinality": 549, "char_count": 9361, "ocr_confidence": 0.911, "pagerank": { "raw": 7.036534591092136e-08, "percentile": 0.4244413477388064 }, "sha256": "9bfb624fa7d3197295c6e3e433b11eb24a1eeb4500fa20340888a0ae931de64b", "simhash": "1:1abb603f7398b6c9", "word_count": 1595 }, "last_updated": "2023-07-14T21:35:10.623879+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARDELLA KLEBBA REYNOLDS, Plaintiff-Appellant, v. ED LACEY, Trustee Under the Will of B. A. Klebba, Deceased, et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nPlaintiff 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\u2019s 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.\nPlaintiff was divorced from her husband, B. A. Klebba, on September 9, 1967. The divorce decree denied plaintiff permanent homestead or dower rights in Klebba\u2019s 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.\nKlebba\u2019s 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\u2019s 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).\nOn 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\u2019s death be incorporated into a mortgage against Tract II.\nOn 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\u2019s complaint. Plaintiff appeals.\nIt 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:\n\u201cWhen 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.]\u201d (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.)\nHere, the trial court made the explicit finding that \u201cone 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.\u201d\nWe find no reason to reverse the trial court\u2019s 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.\nAffirmed.\nKUNCE, J., concurs.", "type": "majority", "author": "Mr. JUSTICE GEORGE J. MORAN" }, { "text": "Mr. JUSTICE KASSERMAN,\nspecially concurring:\nI concur with the majority in holding that plaintiff\u2019s complaint for partition was properly dismissed; however, I am of the opinion that the majority has focused unnecessarily upon the question of the best interests of the minor defendant in this case. As a consequence, the majority has failed to consider the fundamental issue presented, being whether a partition action can be brought by an individual whose interest in real property is derived from the assignment of a dower interest which consisted of the receipt for life of a portion of the rents and profits from the real estate.\nSection 1 of \u201cAn Act in relation to the partition of real estate, and to repeal an act herein named\u201d (Ill. Rev. Stat. 1977, ch. 106, par. 44) states in part:\n\u201cWhen lands, tenements, or hereditaments are held in joint tenancy or tenancy in common, whether such right or tide is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof by complaint * *\nCourts in Illinois have construed this section to require that in order to state a cause of action in partition, the plaintiff must either allege facts showing a legal estate in himself at the time of filing the complaint or allege facts which show that he is the equitable owner with such additional circumstances as would justify a court of equity in vesting a legal estate in him by decree of court, which estate may be made the subject of partition and division among the beneficiaries in the same proceedings. (Jones v. McCollen (1967), 85 Ill. App. 2d 375, 227 N.E.2d 788; cf. Clarke v. Clarke (1932), 349 Ill. 642, 183 N.E. 13.) Thus, in this case we must determine whether plaintiff\u2019s assignment of dower in the form of a life interest in the rents and profits from Tract II constitutes such an estate in the land.\nDower is an inchoate right which vests upon the death of a spouse. (Mitchell v. Mitchell (1927), 328 Ill. 136, 159 N.E. 274.) This vested dower right is a chose in action to demand assignment of dower (Maring v. Meeker (1914), 263 Ill. 136, 105 N.E. 31) and does not become an estate in land until it is assigned. (Liesman v. Liesman (1928), 331 Ill. 287, 162 N.E. 855.) Where the heirs do not voluntarily assign dower, the doweress may bring a court proceeding requesting assignment. The procedure used by the court in assigning dower is similar to the procedure used in a partition proceeding.\nUnder sections 33 and 34 of the Probate Act (Ill. Rev. Stat. 1967, ch. 3, pars. 33, 34) dower may be assigned in one of the following ways: (1) a life estate in a portion of land representing one-third of the entire estate in land which the deceased spouse died seized of; (2) a yearly sum of money payable for life, the amount of which is determined at the time of the assignment by dividing the projected annual yield of the entire estate in land by three; and (3) ownership of one-third of the income derived from the property during the life of the surviving spouse as a tenant in common with the heirs entitled to receive the remaining two-thirds interest.\nThe latter method of assignment was utilized in this case. Plaintiff contends that by virtue of this assignment she became a tenant in common with the owner of the fee, thereby enabling her to have the requisite standing for a partition action. I disagree.\nIn the case of Walker v. Walker (1879), 5 Ill. App. 289, the court characterized the doweress\u2019 receipt of one-third of the rents and profits of the land for life as being in lieu of an assignment of the land itself. Since plaintiff\u2019s interest is income severable from the land, the land itself is owned in fee by the defendants, subject to plaintiff\u2019s ownership of one-third of the income therefrom. Plaintiff owned no interest in the real estate which would entitle her to compel partition and, therefore, lacked standing to bring this action.", "type": "concurrence", "author": "Mr. JUSTICE KASSERMAN," }, { "text": "SUPPLEMENTAL OPINION ON DENIAL OF REHEARING\nMr. JUSTICE KASSERMAN\ndelivered the opinion of the court:\nPlaintiff has filed a petition for rehearing and raises three points claimed to have been overlooked or misapprehended by the court. They are: (1) the court improperly grounded its decision on defendant Byford Lynn Klebba\u2019s minority where at the time the court\u2019s decision was entered, the defendant was no longer a minor; (2) the court failed to consider whether plaintiff\u2019s dower, assigned as one-third of the rents and profits, is an estate in land sufficient to compel partition; and (3) the court failed to consider whether plaintiff\u2019s complaint stated a cause of action.\nWe have carefully considered the points raised by plaintiff, and we deny her petition for rehearing for the reasons set forth in the special concurring opinion, namely, plaintiff owned no interest in the real estate which would entitle her to compel partition and, therefore, lacked standing to bring this action. Her complaint was properly dismissed by the trial court.\nPetition for rehearing denied.\nJudgment affirmed.\nHARRISON and SPOMER, JJ., concur.\nJudges Moses W. Harrison II and Dorothy W. Spomer have replaced Judges Peyton Kunce and George J. Moran who retired after the opinion was filed.", "type": "rehearing", "author": "Mr. JUSTICE KASSERMAN" } ], "attorneys": [ "Theodore Van Winkle and David L. Underwood, both of McLeansboro, for appellant.", "Law Offices of Terry Sharp, P. C., of Mt. Vernon, for appellees." ], "corrections": "", "head_matter": "MARDELLA KLEBBA REYNOLDS, Plaintiff-Appellant, v. ED LACEY, Trustee Under the Will of B. A. Klebba, Deceased, et al., Defendants-Appellees.\nFifth District\nNo. 78-320\nOpinion filed August 15, 1979.\nSupplemental opinion filed on denial of rehearing February 28, 1980.\nKASSERMAN, J., specially concurring.\nTheodore Van Winkle and David L. Underwood, both of McLeansboro, for appellant.\nLaw Offices of Terry Sharp, P. C., of Mt. Vernon, for appellees." }, "file_name": "0001-01", "first_page_order": 23, "last_page_order": 27 }