Plant v. Plant

MELVIN, J.

Plaintiff appeals from an adverse judgment. The suit was brought on behalf of the minor, George - Washington Plant, by his guardian, for the purpose of having the court decide and declare that the. defendants were trustees of certain funds received by them from the rentals and sale of certain property which they had purchased from the estate of their deceased father (plaintiff’s grandfather), Roger Plant.

The court made findings to the effect that Roger Plant died testate in California on February 19, 1894; that his will was probated in the following month; that Charles Plant, one of the defendants, was duly made executor; that the estate was duly settled and the executor was discharged. Other findings were in substance as follows:

In March, 1895, the superior court made and entered its decree by which the real property of the estate was distributed, to William Plant, Susan Plant Tweedy, Roger Plant, Henry Plant, Phoebe Plant, David Walter Plant, George Washington Plant, Richmond Plant, and Charles Plant, children of deceased, all over the age of twenty-one years. This distribution was “share and share alike,” but, as the decree recited, “in trust nevertheless they to use the net rents and profits during their lives, or until such time after ten years from the date of the death of said Roger Plant as that all of his said children or in case any of them shall be dead, then all said children then surviving and the heirs of the body of said deceased children, shall mutually agree in writing to sell said real property and divide the proceeds, when the same shall be sold and the proceeds divided equally among said children.” The findings recite proceedings in the probate court of Cook County, Illinois, where the will had also been admitted to probate and letters had been duly issued to Henry Plant in 1894. As a result of these proceedings an order was

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there entered declaring the estate settled and discharging the executor. At the time of his death Roger Plant was seized in fee of certain valuable real property in Cook County, Illinois. By the decree of distribution this property was distributed to the trustees named in the will of Roger Plant. In September, 1905, the same persons named as defendants in this action (except the administratrix of David Walter Plant’s estate, for he was then living) filed their bill in equity against the other heirs of Roger Plant, including the minor, George Washington Plant, whereby they petitioned the said court to make a decree distributing the property of the estate in Cook County, giving to each heir his or her allotted proper share in accordance with the will of their common ancestor. Two of the defendants in that action were sued as surviving trustees under the will of Roger Plant, deceased, but in the present suit the court found that they were not in fact trustees at the time of the sale of the property in Illinois. The superior court in this action also made thq following finding: