Plant v. Plant

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

“That no express or formal appearance in said partition suit was made by the plaintiff in person, and that plaintiff never directly authorized any person or persons to appear for or on behalf of plaintiff in said proceeding; but that plaintiff did duly and regularly appear in said proceeding by and through his duly appointed, qualified and acting guardian ad litem, and was represented therein and throughout said proceeding by counsel duly authorized by said guardian ad litem to appear and act for him; and that said circuit court of Cook County, Illinois, acquired jurisdiction of all parties to said proceeding, including plaintiff herein.” There was never any agreement in writing among the children of Roger Plant to sell any of the property in Cook County and to divide the proceeds.

According to the findings the suit in equity resulted, in 1907, in a decree that the property could not be physically divided without prejudice to the persons interested, and it was adjudged that the premises be sold for cash to the highest bidder, provided the amount offered should equal at least two-thirds of the valuation of ohe hundred and thirty-five thousand dollars put upon the property by the commissioners. By said decree it was also provided that after due notice the master in chancery should sell the property, and that any of the parties to the proceeding might become purchaser or pur

No attack is made upon the foregoing findings except in those particulars in which they relate to the absence of trust relations between the defendants and the minor and the propriety and legality of the acts of said defendants in the premises.

Respondents rely upon the rule as declared in Felton v. Le Breton, 92 Cal. 457 , 466, [ 28 Pac. 490 ], where it is held that the inhibition upon a trustee from purchasing at his own sale is removed by the determination of a court of equity that he may be such purchaser. When the sale is made under the direction of a court of equity by officers appointed by the court, it is not a sale by the trustee, and there is no rule or principle preventing him from becoming a purchaser. This is the doctrine of the Le Breton case, and appellant has not succeeded in his effort to convince us that it does not apply here. Plaintiff admits in his pleading that the circuit court of Cook County, Illinois, acquired jurisdiction of all parties to the partition proceedings, and that this plaintiff was one of them. The decree of that court, therefore, is res judicata and absolutely binding upon plaintiff. The court determined in advance of the sale that certain of the heirs might become purchasers, and confirmed the sale to them through Charles Plant. The defendants had ceased to be trustees, and by ordering the sale to then by the master in chancery the court so found. Such finding may not be collaterally attacked in this suit. The property was in Chicago. The court had jurisdiction of the parties to that proceeding and of the subject matter. Under such circumstances the courts of this state may not disturb the judgment upon a collateral attack merely because the decree in the estate of Roger Plant in this state distributes the property “in trust.” The judgment of the court of Illinois is absolutely binding upon the plaintiff herein. (23 Cyc. 1055; Reed v. Cross, 116 Cal. 473 , 484, [ 48 Pac. 491 ]; Estate of Harrington, 147 Cal. 124 , [ 109 Am. St. Rep. 118 , 81 Pac. 546 ].)

It is argued that the case of Felton v. Le Breton, supra, is authority only where the trusteeship is coupled with a power of sale. We do not think such limitation may be placed upon it. Indeed, the opinion in that case, at page 467, discusses the reason for the rule announced, which is that where a trustee

It follows from the foregoing discussion that the judgment must be affirmed, and it is so ordered.

Henshaw, J., and Lorigan, J., concurred.