author: Mr. Justice Magruder Mr. Justice Wilkin :

text:
    Henry Canatsey et al. v. Jackson Canatsey et al.

      Filed at Springfield

      October 31, 1889.

    1. Pbobate- oe WEBBS—what necessary thereto. To entitle a will to probate, four things must concur: First, it must be in writing, and signed by the testator, or in his presence by some one under his direction; second, it must be attested by two or more credible witnesses; third, two witnesses must prove that they saw the testator sign the will in their presence, or that he acknowledged the same to be his act and deed; and fourth, they must swear that the testator was of sound mind and memory at the time of signing or acknowledging the same.
    2. Proof of the foregoing facts, in the absence of any proof of fraud, compulsion or other improper conduct, will make a prima facie case entitling the will to probate.
    Appeal from the Circuit Court of Scott county; the Hon. George W. Herdman, Judge, presiding.
    Mr. Owen P. Thompson, for the appellants:
    As to the facts necessary to the probate of a will, see Dickie v. Carter, 42 Ill. 376.
    If the attesting witness swears only to his signature, this will not he sufficient. 10 Am. Dec. 237; Burwell v. Corbin, id. 495.
    When an appeal is taken from an order admitting a will to probate, the testimony of the subscribing witnesses must alone be sufficient to show due execution. Walker v. Walker, 2 Scam. 291; Andrews v. Black, 43 Ill. 259.
    When the testator is illiterate, and signs by his mark, it must appear that no imposition has been practiced, and that he did in fact fully understand every part of the paper. Weir v. Fitzgerald, 2 Brad. Sur. Rep. 42; Rigg v. Wilson, 13 Ill. 15; Martin v. Mitchell, 28 Ga. 382; Wampler v. Wampler, 9 Md. 540; Potter v. Potter, 41 Ill. 80; Schouler on Wills, sec. 317; 1 Jarman on Wills, 29.

      Mr. James M. Riggs, for the appellees:
    When the attestation clause contains all the particulars of a good execution, it will be prima facie evidence of due execution. Mere forgetfulness of the witness, of the facts stated in the attesting clause, will not defeat the probate. 1 Redfield on Wills, (3d ed.) pp. 237-239; Gwillim v. Givillim, 3 S., W. & I. 200; Pearson v. Wightman, 1 Mill. 336; Jachson v. LaGrange, 19 Johns. 386; Jauncey v. Thorm, 2 Barb. Ch. 40; Lawyer v. Smith, 8 Mich. 411; Chaffee v. Missionary Society, 10 Paige, 85.
    In this country, the ruling in general is, that a will may be established by one, only, of the attesting witnesses, if he can testify to a compliance with the statute relating to its execution. In the matter of Page, 118 Ill. 578.
    This court has decided that attesting witnesses need not know the instrument they are witnessing is a will. (Dickie v. Carter, 42 Ill. 386.) But if the rule were otherwise, it is proven in this case, by a perfect attestation clause, that the witnesses knew they were signing a will.
    Under our Statute of Wills it is not necessary the attesting witnesses should see the testator sign the will, or see any one sign for him. It is only necessary he should acknowledge it to be his will. This is sufficiently shown by the testimony of the witnesses, and the attesting clause. Holloway v. Galloway, 51 Ill. 159.
    As to the objection that the witnesses do not know the testator was present when they signed, this is squarely shown to be otherwise by McGrlasson, who swears that the testator, and Bowen, the other witness, were present when the will was executed, or acknowledged, and witnessed. The same is also. shown by the attestation clause.
    It is not necessary the testator should have signed on the same day the attesting witnesses signed. He may have signed on a previous day, and acknowledged his signature on the day they signed, and this would be a good execution. This objection is fully met by the evidence of the witnesses in connection with the attestation clause. Holloway v. Galloway, 51 Ill. 159.
    It is not necessary the witnesses should sign in the presence of each other, or at the same time. If the signature of the testator was acknowledged to each of them, though at different times, that was enough. If the rule were otherwise, however, it is fully proven by McGlasson, and the attestation clause, that the testator signed in the presence of the witnesses, who signed in the presence of each other. Flynn v. Owen, 58 Ill. 111.
    It is next urged, that inasmuch as the testator signed the will by mark, it was not entitled to probate until the proponent proved that its contents were read to him. The will is found with his signature to it, and the presumption is that he did not sign it without knowing its contents. Such is the usual presumption in reference to all instruments, and we are aware of no distinction between persons who can and those who can not write. Doran v. Mullen, 18 Ill. 346.
   Mr. Justice Magruder

delivered the opinion of the Court:

George Canatsey of Scott County died testate on March 21, 1888. By his will bearing date March 14, 1883, after providing for the payment of his funeral expenses and debts, he devised all his personal property and real estate, the latter consisting of 325 acres of land in Scott and Macoupin Counties, to his eight children, specifically naming three sons and five daughters. He made no other gifts or devises, and the eight children so named were to take the real and personal property “share and share alike.”

The will was presented for probate to the County Court of Scott County by Jackson Canatsey, the executor, who was also one of the sons, and was admitted to probate by that Court on May 17, 1888. The probate of the will was resisted before the County Court by Henry Canatsey and Ellen McCarty, claiming to be grandchildren of the testator, children of a deceased son. They are not mentioned in the will. They are described as such grandchildren in the order of the County Court admitting the will to probate. They took an appeal from such order to the Circuit Court, where a trial was had, by consent, before the Circuit Judge without a jury, resulting in an order admitting the will to probate. From such judgment of the Circuit Court the contestants prosecute their appeal to this Court.

The testator could not write. He signed the will by making his mark and affixed his seal. The only evidence introduced upon the trial before the Circuit judge, besides the will itself, consisted of the testimony of the two subscribing witnesses and of the draughtsman of the will.

It is urged by the contestants, that the proof of the execution of the will was not sufficient under the requirements of the statute. We have said that “to entitle a will to probate four things must concur—it must be in writing and signed by the testator or testatrix, or in his or her presence by some one under his or her direction; it must be attested by two or more credible witnesses; two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed ; they must swear that they believed (or believe) the testator or testatrix to be of sound mind and memory at the time of signing and acknowledging the same.” (Dickie et al. v. Carter, 42 Ill. 8 76; Crowley v. Crowley, 80 id. 469).

It is not necessary to say anything as to the fourth requisite, as it is not claimed that the testator was not of sound mind and memory.

First, the will of George Canatsey was signed in his presence and under his direction by James Callans, he at the same time making his mark. Callans swears, that he has been a practicing lawyer in Scott County seventeen years; that he knew the testator twenty five years; that he was County judge on March 14,1883; that he wrote the will in question for George . Canatsey and signed the latter’s name to it; that he never signed the testator’s name without his request; that the will as shown to him on the trial was “in the exact form in which he wrote it”; that it is his recollection that he wrote it at the dictation of George Canatsey; that the testator signed his name to the instrument “by his mark”; that the will was written in the office of the witness on the south side of the square in Winchester, Scott County, and that he and the testator were present at the time; that “the old gentleman came in and had me prepare the will, and my impression is that he had some memorandum—he might have had it on the leaf of a book— my recollection is that he * * * told me what he wanted done and pulled out some papers”; that he (the witness) would not have written a will and signed George Ganatsey’s name to it except at the dictation of George Canatsey.

Second, the will is attested by two credible witnesses, Frank McGlasson, who was then and had been for twelve years clerk of the Circuit Court of Scott County, and Thomas P. Bowen, who had been county clerk eight years and county judge four years.

Third, the testimony of the subscribing witnesses, in the absence of any proof of fraud, compulsion or other improper conduct, made out such a prima facie ease as justified the court in admitting the will to probate.

McGlasson swears, that he had lived in Scott county fifty years; that he had known the testator about twelve years; that his name was signed to the will as a witness; that the signature was unquestionably that of the witness; that the testator frequently came into the office of witness and they had talks together; that witness always called him “ Uncle George” ; that the best recollection of witness is, that “Uncle George or some one else came to me and asked me to go and witness his will;” that it was in the old court house “I think—I remember of the old gentleman being present; I witnessed it in his presence; I am satisfied of that because here is my signature to the will, * * * he most assuredly was present at the time I signed it; I think Mr. Bowen was present, and I don’t know but what Mr. Callans was present; I don’t know that I could say that I saw him (the testator) sign it, he acknowledged it, I am satisfied of that; I don’t know just what he said, but I know that he said that it was his will, and he wanted us to attest it.”

Bowen testifies as follows: • I knew the testator forty five or fifty years; I was very well acquainted with him; I never saw him write;" I don’t think he could write; that first signature (to the will) is mine; I wrote that first signature under that attesting clause, or at least that is my signature, and I am satisfied that I wrote it; I have written a great many wills for different parties; as county clerk and county judge I became familiar with wills, and the execution of wills and what was requisite; I never witnessed a will except at the request of the testator or some one acting for him in his presence; I never signed that will as a witness without being requested so to do either by Mr. Canatsey or some one for him in his presence; I don’t remember who was present; I don’t remember where it was; I suppose, though, it was in the court house; I was in the court-house every day; the testator came to town nearly every 'Saturday, and I generally saw him every time he came to town; he would come to the court house; either George Canatsey, or Callans, or “some one for him sure,” asked me to sign it (the will); I don’t remember of seeing the old man make his mark to the will; I don’t remember half the wills I have written or attested; I never witnessed any instrument unless it was either signed or acknowledged by the signer in my presence.”

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

Mr. Justice Wilkin :

I dissent. In my opinion the testimony of the subscribing witness Bowen, as it appears in the record, is not sufficient to entitle the will to probate under our statute.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    Henry Sherlock v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Springfield

      November 2, 1889.

    1. Evidence—to prove value of land—offers to sell other property at a given price. On the assessment of the compensation to be paid for city lots for railway purposes, the petitioning company called a witness, who testified that he was engaged in the real estate business in the same city, and had in charge a certain lot, which he was offering for sale at a certain price per foot: Held, that the evidence was not competent.
    2. Mere offers to sell real estate at a given price are not competent evidence of its value, or of the value of like property. The rule admitting evidence of value is confined to actual sales or acts done.
    Writ op Error to the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.
    Mr. Seth F. Crews, and Mr. Ernest Dale Owen, for the plaintiff in error:
    The mere offer to sell property at a given price is incompetent evidence of the value of similar property in close proximity. Dickinson v. Inhabitants, 13 Gray, 546; Davis v. Railroad, Co. 11 Cush. 506; Tufts v. Charlestown, 4 Gray, 537.
    Mr. E. J. Harkness, for the defendant in error.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This was a proceeding in the circuit court of Cook county, by defendant in error, against plaintiff in error and others, to condemn for railroad purposes certain city lots in Chicago. The jury, having heard the evidence and viewed the premises, returned a verdict in favor of plaintiff in error for $8000 for land taken and improvements, and $275 for the inconvenience and cost of removal. Judgment having been entered on the verdict, plaintiff in error brings the case up, and assigns numerous errors on the record, among others, that the court below admitted improper evidence on behalf of petitioner.

A witness, called on behalf of petitioner, was allowed to testify, over the objection of respondent, that he was engaged in the real estate business, “and had in charge a certain lot 3, in Chicago, one hundred feet front by one hundred and seventy-five feet deep, which he was offering in the market for sale at $15,000,—$150 afoot.” This witness testified to no other fact in the case, but was called and sworn for the purpose of proving the offer alone, and the naked question is therefore presented, whether or not it is competent, in such a proceeding, on the question of damages, to prove a mere offer by a third party to take a certain price for similar property in no way connected with that sought to be condemned. The law, on sound reasoning, seems to be settled against the admissibility of such evidence. Mills on Eminent Domain, sec. 170, and authorities cited in note; Lewis on Eminent Domain, sec. 446, and cases cited.

In Davis et al. v. Charles River Branch Railroad Co. 11 Cush. 506, the petitioner was allowed to prove by a witness what he had offered for like property opposite that in question. Held, error, Thomas, L, saying: “The mere offer * * * was not competent evidence of value. The rule admitting evidence of this character is confined, and rightly, to actual sales, as acts done. The limitation is founded in obvious good sense.” In Winnisimmet Co. v. Grenby, 111 Mass. 543, it was said, in a proceeding to assess damages for the taking of land by a ferry company: “The company can not introduce evidence of the amount for which an owner of land in the neighborhood has offered to sell his land.” In Montclair Railroad Co. v. Benson, 36 N. J. L. 557, a real estate agent was called as a witness, and asked at what price he had offered for sale property adjoining that being condemned. Held, the evidence was properly excluded. In Lehmicke v. St. Paul, etc., Railroad Co. 19 Minn. 464, a witness testified that he knew what certain property in the vicinity had been offered for, and was then asked to give the rates of sales and offers, to which an objection was sustained, and held properly, because it called for evidence of offers, as well as actual sales. Numerous other decisions to the same effect might be cited. We have found none to the contrary.

The only authority to which we have been referred by counsel for defendant in error, as sustaining the ruling of the court below, is Chicago and Western Indiana Railroad Co. v. Maroney, 95 Ill. 179. That case can not be fairly construed as holding such evidence competent. There, after both parties had closed their evidence, the petitioner offered to prove that an adjoining tract had been sold for $24 per foot, and that other lots in the neighborhood were offered for sale at §25 per foot. The evidence was rejected by the trial court, and its ruling sustained in this court on the ground that the offer was made too late. The competency of the evidence was not discussed. The language in the opinion, “the offered testimony as evidence in chief was doubtless competent,” etc., is not said by way of deciding upon the competency of evidence of offers of sales, or even actual sales, but with reference as to when the evidence should have been offered.

The evidence of a mere offer, allowed in this case, was incompetent, and should have been excluded. The testimony as to the value of the property condemned is in irreconcilable conflict. It is impossible, therefore, to determine how far the incompetent evidence may have influenced the verdict,— at least we can not say that it had no prejudicial effect upon the minds of the jury.

The other grounds of reversal insisted upon are not tenable, but for the error indicated the judgment must be reversed.

Judgment reversed.


author: Mr. Justice Craig

text:
    The People ex rel. Board of Education v. Mayor and City Council of Bloomington.

      Filed at Springfield

      October 31, 1889.

    1. School taxation—boards of education, under special charters— general lau> of 1872. The general School law of 1872 did not repeal the special charters of boards of education existing before its passage.
    2. Section 43 of the School law of 1872, giving the directors of schools power to levy a tax, not to exceed two per cent for educational and three per cent for building purposes, has no application to boards of education organized under "special charters.
    3. Same—effect of amendatory act of 1879. Section 43 of the School law, as amended by the act-of 1879, providing that school directors and the authorities of villages or cities shall be authorized to levy a tax, annually, not to exceed two per cent for educational and three per cent for building purposes, upon the last assessment for State and county taxes, does not authorize boards of education acting under special charters, to require city or village authorities to levy such a rate of taxes in excess of that allowed by their charters. That section has no reference to proceedings to raise money by a corporate body acting under a special charter. Authority to city or village boards to levy such a rate of taxes does not enlarge the powers of the special boards of education, but vests the city or village authorities with a discretionary power, to be exercised upon their own judgment.
    4. If boards of education, organized under special charters, desire to avail themselves of the increased powers of taxation conferred by the general School law, they must organize under the general law, as provided in section 80 of that act.
    This is a petition for a writ of mandamus, filed in this court hy the Board of Education of the city of Bloomington, against the mayor and city council of the same city, for the purpose stated in the opinion of the court.
    Mr. Isaac N. Phillips, for the petitioners.
    Mr. A. E. DeMange, for the defendants.
   Mr. Justice Craig

delivered the opinion of the Court:

This is a petition for mandamus, brought in the name of the People, on the relation of the Board of Education of the city of Bloomington, to compel the city council of the city of Bloom-ington to levy an additional tax of $15,448.53, to defray the expenses of the public schools within the city for the year ending April 1, 1890.

There is no controversy between the parties in relation to the facts. The amount required by the board of education, and by the board presented to the city council for its action, embraced the following items:

Water tax........282

Telephone rent - - - - - - -261

Fuel --------- 2,000

Janitors’ salaries ------- 3,450

Salary of superintendent and secretary - - - 1,800

Estimated interest on temporary loans - - - 1,000

Heating apparatus - - - - - - 1,500

Repairs.........1,500

Supplies -------- 500

School buildings ------- 250

Miscellaneous expenses ----- 400

Furniture........200

Teachers’ salaries...... 37,000

Total.......$50,443

The amount of the taxable property within the city of Bloom-ington, as ascertained upon the last assessment, upon which the per cent was to be computed to raise money for school purposes, was $3,499,447. The city council, in its ordinance making a levy of taxes for school purposes, made a levy of one per cent on the assessment, which would raise the sum of $34,994.47, only, and, as before observed, this proceeding was instituted to compel a levy of an additional amount sufficient to make up the $50,443 first demanded by the board.

The Board of Education of the city of Bloomington is a corporation created by the laws of this State, and it possesses such power, and such only, as has been conferred upon it by the legislature of the State. The board derived its existence from the following acts of the legislature : “An act to establish and regulate a system of public schools in the city of Bloomington,” approved February 16, 1857. (Public Laws of 1857, p. 226.) “An act to provide amendments to the Bloom-ington school law,” approved February 16, 1865. (2 Private Laws of 1865, p. 271.) “An act to amend an act entitled ‘An act to establish and regulate a system of public schools in the city of Bloomington,’ approved February 16, 1857,” approved February 22, 1867. (3 Private Laws of 1867, p. 26.) “An act to amend an act entitled ‘An act to establish and regulate a system of public schools in the city of Bloomington,’ approved February 16, 1857, and amendments thereto,” approved March 31, 1869. (3 Private Laws of 1869, p. 407.) And it is insisted by the defendant, that it has no powers excejit such as are conferred by these acts, while on the other hand it is claimed that the powers of the board as to the amount of money it may demand have been enlarged by an amendment to the general act in relation'to schools, enacted in 1879.

Section 8 of the act of 1857, as amended in 1865, limits the amount the board may demand to one per cent on the assessment. That section is as follows:

“It shall be the duty of said board, on or before the first Monday in April in every year, to make a report in writing to the city council of all moneys received, how and for what purpose expended, with the proper vouchers, and give such infor7 mation in relation to said schools as they may deem important, specifying in said annual report the amount of money necessary to be raised by taxation to defray the expenses of said school system. And the city council shall, annually, upon the coming in of such report, and within thirty days thereafter, proceed to levy a tax sufficient to meet such expenses, to be levied and collected as the other taxes of said city: Provided, said taxes shall not exceed ten mills on the dollar,” etc.

It is plain, that unless the power to demand a greater levy than one per cent has been conferred by some subsequent legislation, the city of Bloomington, in making a levy of one per cent, did all it could be required to do. No special act of the legislature is relied upon, but reliance is placed upon general laws bearing upon the question, passed since the adoption of the constitution of 1870.

On the first day of April, 1872, the legislature passed an act entitled “An act to establish and maintain a system of free schools.” This was a general law, containing ninety-eight sections. All acts inconsistent with it, and all general laws previously enacted, were repealed. Of course, this act did not repeal the charters under which boards of education like the relators in this case were acting. Section 43 of this general act provided, that “for the purpose of establishing and supporting free schools for not less than five nor more than nine months in each year, and defraying all the expenses of the same of every description, for the purpose of repairing and improving school houses, of procuring furniture, fuel, etc., and for all other necessary incidental expenses, the directors of each district shall be authorized to levy a tax, annually, upon all the taxable property of the district, not to exceed two percent for educational and three per cent for building purposes.” Of course a bare reading of this section as enacted is enough to convince any person that no additional power was conferred on boards of education, or a city council, in reference to raising money. Indeed, it has no reference whatever to those corporations. The section confers powers upon the directors of each district,—a body well-known, and one, too, which can not be confounded with a city council or a board of education. But in June, 1879, the legislature passed an act, approved June 3, 1879, (Laws of 1879, p. 290,) to amend sections 7, 14, 17, 20, 22, 30, 32, 35, 36, 42, 43, 44, 45, 47, 48, 51, 52, 53, 54 and 79, of the act of 1872. Section 43, as amended, reads as follows:

“For the purpose of establishing and supporting free schools for not less than five nor more than nine months in each year, and defraying all the expenses of the same of every description, for the purpose of repairing and improving school houses, of procuring furniture, fuel, libraries and apparatus, and for all other necessary incidental expenses, in each district, village or city,—anything in any special charter to the contrary notwithstanding,—the directors of such district, and the authorities of such village or city, shall be authorized to levy a tax, annually, upon all the taxable property of the district, village or city, not to exceed two per cent for educational and three per cent for building purposes, to be ascertained by the last assessment for State and county taxes.”

In the amendment of section 43 it will be observed that the legislature, after the word “district,” as it appeared in the original section, incorporated the words, “and the authorities of such village or city.” Now, while there may be some uncertainty in regard to what was intended by the insertion of these words, one thing, however, is certain: that these words did not refer to a board of education, and did not enlarge its powers of taxation. The board of education has never been understood to be the authorities of a village or city. On the other hand, it has always been understood that when these words were used they referred to the mayor and city council, or president of the board and council. In no event, therefore, did the amended section empower the board of education to demand of the city council an additional or any levy. If the city council of Bloomington was, by the insertion in the section of the words referred to, authorized to levy two per cent, this did not authorize the board of education to demand a levy of that character. If the city had the power, it was a discretionary one, to be used or not as their better judgment might determine, and not at the whim or caprice of the board of education.

But upon an examination of section 79 of the same act, we think it is apparent that section 43 had no reference whatever to proceedings to raise money, where such proceedings were conducted by a corporate body acting under a special charter. That section declares: “This act shall not be so construed as to repeal or change, in any respect, any special acts in relation to schools in cities having less than one hundred thousand inhabitants, or incorporated towns, townships or districts, except that it shall be the duty of the several boards of education having in charge schools under the provisions of any of the said special acts, to report school statistics to the county superintendent,” etc. Here the board of education is acting under and derives its powers from special acts of the legislature. Under the special acts, a levy of but one per cent is allowed. Section 79, in positive terms, declares that “this act” (the one containing section 43) “shall not be so construed as to repeal or change, in any respect, any special acts in relation to schools.” If section 43 enlarges the power of taxation so that a levy of two per cent may be made where only one per cent is authorized under the special charter of the board, then the special act.s are changed, which section 79 declares shall not be done.

We perceive no way in which the position of relators can be sustained, unless section 79 may be entirely disregarded. If the relators desired to obtain the supposed benefits arising to the public or to the board of education by being permitted to impose upon the property owners an increased taxation for school purposes, section 80 of the general act under consideration provides a mode under which the people of a city like Bloomington, where the free schools are managed under a special act, may abandon the organization under the special acts, and become organized under the general law for the government of free schools-. But we perceive no way that the relators can hold and enjoy the power conferred upon them by the special acts, and at the same time enjoy the rights and privileges of taxation conferred by the general school law upon those organized and acting under its provisions. If they desire the benefits conferred by the general law, they must abandon the powers conferred by the special acts.

Much has been said in the argument in regard to the constitutional duty of the legislature to provide a thorough and efficient system of free schools. That is all well enough; but the question involved in this case is one of power,-—the right to impose taxation,—and it is quite as important to the citizen to know that his property shall not be taken and sold to pay a tax imposed without authority of law, as it is to know that we enjoy an efficient system of free schools. Board of Education v. Arnold, 112 Ill. 11, has been cited as an authority, but there is nothing decided in that case which has any bearing here.

The mandamus will be denied.

Mandamus denied.


author: Per Curiam :

text:
    James N. Longan v. George W. Taylor et al.

      Filed at Springfield File

      October 31, 1889.

      reasurer’s books—entries therein, and his reports—conclusive against his sureties. In a suit upon the official bond of a township treasurer of schools, the entries in his books of account of the moneys in his hands at the date of the bond, and his report at the last day of his term of office, showing the amount of school moneys then in his hands, are conclusive upon his sureties, and they are estop-ped from showing such entries and report are untrue. Sureties—school ti

    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.

      This was an action upon the bond of J ames N. Longan, as school treasurer of a township, William Atteberry and Joseph F. Fisher being sureties. The bond was dated June 2, 1886, and contained the provision that the principal should account for all property that came to hand “after the date of this bond.” The defense was that Longan had fully accounted for all that was in his hands when the bond was made, or that came to his hands afterward, and that the liability for shortage should fall on the prior bondsmen who were such when it occurred.
    Mr. Oscar Allen, for the appellant:
    The principal question is, what effect shall be given to the entries in Longan’s books and the report made by him on the last day of his office.
    The sureties are liable only for what was actually, not constructively, in Longan’s hands. The terms of the condition are that he shall account for what “comes to his hands from the date of this bond up to the time that his successor shall qualify.”
    The change in the condition was made in 1879, after the Metamora case, 78 Ill. 394, was decided. (See Laws of 1879, p. 305, sec. 58.) It is to be presumed that this change means something. That change would be naturally interpreted to mean something like this: The courts have decided that sureties are liable for what is constructively in the principal’s hands; we will now make the bond so that they shall be liable only for what actually comes to his hands, and to that end the bond shall show that they are liable only for what he receives after the bond is made. To construe so plain a provision as meaning that the sureties are liable for what was not in the principal’s hands after the date of the bond, is to disregard those well known rules that implications are always in favor of sureties, and that they have a right to stand upon the very terms of their bond. No unlearned man would even imagine that those words would bea? such construction. It looks like the height of injustice to construe them to mean exactly the opposite of what they say, and to make the legislature appear to have set a trap for plain, honest, unsuspicious men, who ought to be protected, instead of injured, by judicial decisions. Farrar v. United States, 5 Pet. 373; United, States v. Boyd, 15 id. 187; United States v. Irving, 1 How. 250; Bruce v. United States, 17 id. 437; Miller v. Stewart, 9 Wheat. 702.
    Messrs. Blinn & Hoblet, for the appellees:
    When an officer makes entries in his books, or in a report which the law requires him to make, both he and the sureties' on his bond are estopped to deny the correctness of those entries. City of Chicago v. Gage, 95 Ill. 626; Fogarty v. Reame, 100 id. 369; Morley v. Metamora, 78 id. 394; Roper v. Samgamon Lodge, 91 id. 518.
   Per Curiam :

The question here is that of the liability of the sureties of a township treasurer of schools upon his official bond.

The circuit court refused to hold as follows, namely:

“The entries introduced in evidence by plaintiffs, from the books kept by Longan, as treasurer, do not operate as an estoppel against defendants, to prevent them from proving that such entries are untrue. The report to the trustees, introduced in evidence as made by said Longan on the last day he was in office, and stating the amount of money then in the hands of said Longan, does not operate as an estoppel against defendants, to prevent them from proving that such amount was not then in his hands.”

And this refusal is assigned for error. It is clear that the circuit court was required to refuse to hold as thus requested,, by Morley v. Metamora, 78 Ill. 394, Roper et al. v. Sangamon Lodge, 91 id. 518, and City of Chicago v. Gage, 95 id. 593;. and we do not think that the ends of justice now require that we should reconsider the reasoning in their support.

In our opinion, the use of the words in this bond, “from the date of his bond,” does not have any effect in restricting the liability of the sureties. Without the use of those words their undertaking would have been, in theory, entirely prospective, and they could have been held liable only for defaults occurring, in legal contemplation, after they became bound by signing the bond.

The judgment must be affirmed.

Judgment affirmed.


text:
    William J. Watson v. Michael Doyle.

      Filed at Springfield

      November 1, 1889.

    1. Conteact—of sale—inadequacy of consideration. The mere fact that the amount agreed to be paid is not the full value of property sold, Will not invalidate the contract of sale.
    2. Same—intoxication—in avoidance of contract. The fact that a person may have been in the habit of drinking, will not relieve him from a contract entered into when not intoxicated. In order to defeat a contract on the ground of intoxication, it must appear that the party was in such a condition that he was incapable of understanding the nature of the transaction in which he was engaged.
    3. Specific pebfobmaftge—inadequacy of price. Unless the inadequacy of the price agreed upon for property sold is such as to shock the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not, of itself, a sufficient ground for refusing a specific performance. But if the inadequacy is so gross and palpable as to afford evidence of fraud, a court of equity will refuse its aid to enforce the specific performance of the contract.
    4. Homestead—excess above $1000 in value—subject to alienation— judgment liens, etc. Where the property in which the homestead estate exists exceeds in value $1000, the excess is unaffected by the estate, and is liable to the same lien of judgments, attachment, etc., and may be aliened in the same manner, as other property of the "householder.

      5. SAME'—and herein, of an adjustment between the holder of the homestead and the purchaser. A contract for the sale of land occupied by the vendor as a homestead, of the value of $50,000, is not void, and incapable of enforcement. The deed, when made without the wife joining therein, will not pass the estate of homestead, but will be operative to pass the title to all of the property over the value of $1000. If the purchaser is willing to pay the contract price and accept a deed conveying the property subject to the homestead right of the vendor, a court of equity may enforce the making of such a conveyance, and the rights of the parties may be settled, as to the homestead, in the manner pointed out in Hotchkiss v. Brooks, 93 Ill. 387.
    Appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding. ■
    Messrs. Dexter, Herrick & Allen, for the appellant:
    Inadequacy of price, in order to constitute a defense to a bill for specific performance, must be so gross and palpable as to amount to fraud. Coles v. Trecothick, 9 Ves. 246; Barell v. Damen, 2 Hare, 450; Lee v. Kirby, 104 Mass. 428; Burtch v. Hogge, Harr. Ch. 46; Conrad v. Schaub, 53 Wis. 374.
    Mere drunkenness will not release a party from his contracts. To have that effect the party must be so drunk as to have drowned reason, memory and judgment, and impaired his mental faculties to an extent that would render him non compos mentis for the time being. Schramm v. O'Connor, 98 Ill. 543; Lightfoot v. Heron, 3 Y. & C. 586; Pomeroy on Specific Perf. sec. 184.
    The homestead estate, like the exemption under former statutes, is limited to $1000, and all of the property above that value is subject to levy and sale, and alienation by the owner, the same as his other real estate. Eldridge v. Pierce, 90 Ill. 480; Hotchkiss v. Brooks, 93 id. 386; Moriarty v. Galt, 112 id. 378 ; Browning v. Harris, 99 id. ,462 ; Wallace v. Harris, 32 Mich. 400; Jenkins v. Harrison, 66 Ala. 345.
    The decree is erroneous in finding that the contract was incapable of being specifically performed. McClure v. Otrich, 118 Ill. 320 ; Harding v. Parshall, 56 id. 219; Humphrey v.
      Clement, 44 id. 299; Mathison v. Wilson, 87 id. 51; Hotchkiss v. Brooks, 93 id. 386.
    In the following additional cases of specific performance it-was held, that on the refusal of the wife to join in the deed, the vendee could elect to take a deed without her signature, and could compel the execution of such a deed by bill for specific performance: Jefferson v. Jefferson, 96 Ill. 551; Litsey v. Whittemore, 111 id. 267; Hall v. Hall, 125 id. 95.
    In the following cases, in other States, it was held, that where the wife refused to join in the deed, the vendee might elect to accept a conveyance without the wife joining, some of the eases holding that in such case there may be an abatement of the purchase money, and others, that on account of the contingent nature of the inchoate dower interest, and the inability to value it, there can be no such abatement. Wright v. Young, 6 Wis. 127; Richmond v. Robinson, 12 Mich. 193; Young v. Paul, 10 N. J. Eq. 401; Martin v. Merritt, 55 Ind. 35; Davis v. Parker, 14 Allen, 94; Park v. Johnson, 4 id. 259.
    When a deed is made of the homestead, without its release, and the property is worth more than $1000, the court may order its sale or enter a decree giving possession on the payment of that sum. Hotchkiss v. Brooks, 93 Ill. 386; Mix v. King, 55 id. 434; 66 id. 145; Bank of Louisiana v. Lyons, 52 Miss. 181; Richards v. Greene, 73 Ill. 54; Loomis v. Gerson, 62 id. 11; Stevens v. Hollingsworth, 74 id. 212.
    Messrs. Holden & Farson, also for the appellant.
    Messrs. Smith & Pence, and Mr. Eli B. Felsenthal, for the appellee:
    Specific performance will not be decreed unless the contract be fair and reasonable, and was made' under such circumstances as to demand the exercise of an equitable discretionary power by the court. Fish v. Leser, 69 Ill. 394; Railroad Co. v. Reno, 113 id. 39; Harrson v. Polar Star Lodge, 116 id. 279.

      If the whole agreement can not or should not he enforced, the court will not decree performance of part. Fry on Specific Perf. (3d ed.) secs. 802, 811; Stocker v. Wetterburn, 3 K. & J. 393; Gervais v. Edwards, 2 D. & W. 80.
    The court will not decree a specific performance where the effect must be to seriously embarrass, if it will not absolutely imperil, the rights or interests of one who is neither a party to the contract nor to the suit. Railroad Co. v. Schoenemann, 90 Ill. 258.
    Performance will not be decreed of a contract resting partly in writing and partly in parol; nor will a contract be reformed or enforced when the circumstances do not appeal to the conscience of the court. Fry on Specific Perf. (3d ed.) secs. 754, 776, 797.
    This contract concerned the homestead. It provided that the premises should be vacated,—that is, that all the improvements, which included the dwelling, should be removed. The homestead was an estate for the joint lives of Michael Doyle and his wife, Mary, and for the life of the survivor. Estes v. Furlong, 59 Ill. 298; Baxter v. Lamont, 60 id. 237; Weaver v. Weaver, 109 id. 225.
    The following are decisions under the present and former homestead acts: Patterson v. King, 29 Ill. 514; Smith v. Miller, 31 id. 158; Pardee v. Lindley, id. 174; Thornton v. Boyden, id. 211; Marshall v. Barr, 35 id. 106 ; Brown v. Cook, 36 id. 243; Redfern v. Redfern, 38 id. 509; McDonald v. Crandall, 43 id. 231; Vasey v. Board of Trustees, 59 id. 188; Barson v. Dow, 65 id. 146; Stevens v. Hollingsworth, 74 id. 202; Hartwell v. McDonald, 69 id. 293 ; Cobb v. Smith, 88 id. 199; Hotchkiss v. Brooks, 93 id. 386; White v. Plummer, 96 id. 394; Browning v. Harris, 99 id. 462; Kingman v. Hollins, 100 id. 319; Winslow v. Noble, 101 id. 194; McMahill v. McMahill, 113 id. 461.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Michael Doyle, in the circuit court of Cook county, against William J. Watson, to set aside and declare void, as a cloud upon his title, a certain written contract, under which Doyle agreed, upon the payment of a certain sum of money by Watson, to convey certain premises in Chicago to him. It is, in substance, alleged in the bill, that the contract was obtained by fraudulent representations; that at the time the contract was executed, complainant was under the influence of liquor, and incapable of understanding its meaning; that the price agreed to be paid was inadequate. It is also alleged that the property agreed to be conveyed was the homestead of complainant; that the wife did not join in the execution of the contract, and upon this ground the contract was void. The defendant put in an answer to the bill, in which he denied all fraudulent representations; denied that complainant was under the influence of liquor and incapacitated from understanding the contract; denied that the price agreed to be paid was inadequate, and denied that the contract was void. The defendant also filed a cross-bill, in which he prayed for a specific performance of the contract. The complainant answered the cross-bill, and the cause proceeded to a hearing on the pleadings and evidence.

The court, in its decree, found, among other facts, the following : “And the court further finds that the allegations in said original bill, and amendments thereto, contained, that the contract mentioned in the pleadings herein was obtained by fraud, are not sustained by the proofs. And further finds that the allegations contained in said bill, and the amendments thereto, that complainant was not of sufficient mental capacity to make said contract, are not sustained by the proofs. And further finds that the allegations contained in said bill, that the contract was for an inadequate price, are not sustained by the proofs. And the court further finds that the premises mentioned in said contract were the homestead premises of the complainant, Michael Doyle; that said complainant was a married man, residing with his wife, Mary Doyle, and with certain of his children, upon said premises, and that the allegations contained in said bill, that said premises were the homestead premises, are fully sustained by the proofs. The court also finds that said Mary Doyle, wife of said complainant, did not sign or consent to the making of said contract. The court further finds that the original contract made by said parties is incapable of being specifically performed, and that it is not in the power of this court to decree a specific performance of the same; that the said contract is null and void and a cloud upon the title of complainant, and that the defendant should deliver it up to be cancelled.” A decree was thereupon entered by the court in favor of the complainant, according to the findings.

We find no evidence in the record to sustain the allegation of fraud. Indeed, so far as appears, the contract was fairly made, with a full understanding of all its terms and conditions.

In regard to the claim that the amount agreed to be paid for the property was inadequate, we do not think the evidence sustains the charge. It may be that the amount agreed to be paid was not the full value of the property; but that fact does not invalidate the contract. In Coles v. Trecothick, 9 Ves. 246, Lord Eldon, in considering the question of inadequacy of price, said: “Unless the inadequacy of price is such as shocks the conscience, and amounts, in itself, to conclusive and decisive evidence of fraud' in the transaction, it is not itself a sufficient ground for refusing a specific performance.” In Lee v. Kirby, 104 Mass. 428, which was a bill for a specific performance, it is said: “The general rule is, that inadequacy of consideration, exorbitance of price, or improvidence, in the contract, in the absence of fraud, will not constitute a defense.” If the inadequacy of price was so gross and palpable as to afford evidence of fraud, a court of equity would not lend its aid to enforce a specific performance of the contract. But such is not this case. We think it may be inferred from the evidence that the property was worth something more than appellant agreed to pay for it; but that does not invalidate the contract. If it did, hut few sales would stand, as it is no uncommon thing for property to sell for less than it is really worth.

The charge that Doyle was intoxicated when the contract was made is not sustained by the evidence. Heck and his wife testify that Doyle came home drunk on the evening of the day the contract was executed; but this was at nine o’clock in the evening, when the contract was executed at eleven o’clock in the forenoon, and Watkins and Watson both testify that Doyle was not intoxicated, and in this they are contradicted by no one. The fact that Doyle may have been in the habit of drinking, will not relieve him from a contract entered into when not intoxicated. In order to defeat a contract on the ground of intoxication, it must appear that the party was in such a condition that he was incapable of understanding the nature of the transaction in which he was engaged. Pomeroy on Specific Performance, (sec. 184,) states the rule as follows: “The intoxication must be so complete as to suspend the operation of the party’s mental faculties, and render him incapable of understanding the nature of the transaction. A condition of mere exhilaration or excitement produced by drink is not sufficient, if the party still comprehends what he is doing.”

The main question presented by the record, however, is, whether the contract set out in the bill and cross-bill is void, the premises, at the date of the execution of the contract, being occupied as a homestead by Doyle and his family. The contract was as follows:

“Chicago, March 6, 1886.
“Agreed by and between Michael Doyle and William J. Watson, both of Chicago, that Michael Doyle shall sell to William J. Watson fifty feet on Franklin street, north of Van Burén street, east front, known as lot 13 of lots 2, 3 and 4, block 84, school section addition, for $50,000 net, to be paid said Michael Doyle. Watson agrees that all the improvements and movable property shall be moved off by said Doyle, and he shdll give said Doyle at least thirty days’ notice of his desire to have said movable property taken away, when said Doyle shall clear the land of all that may at present be upon said property. Said Doyle agrees to pay the taxes accrued upon the property to date, and to furnish a good and sufficient abstráet, showing a good title in said Doyle, as soon as the record can be provided. And said Watson agrees that he shall pay $50,000 cash, less any incumbrance that may be on the property, on the delivery of such abstract showing a good title, and the further delivery of a warranty deed to said Watson.
(Signed.) Michael Doyle,
(Signed.) William J. Watson.
Witnessed toy M. Watkins.”

The court found that the premises described in the contract were homestead premises, and that Mary Doyle, wife of complainant, did not sign or consent to the making of the contract. A'decree was then entered declaring the contract null and void as against the complainant, his heirs and assigns, and a cloud upon his title, and that defendant deliver up the contract to be cancelled.

The argument to sustain the decree is predicated upon the construction counsel for appellee place upon sections 1 and 4 of the Homestead Exemption act of 1873. Those sections are as follows:

“Sec. 1. That every householder having a family shall be entitled to an estate of homestead, to the extent in value of $1000, in the farm or lot of land and buildings thereon owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment,” etc., and “from the laws of conveyance, descent and devise, except as hereinafter provided.”
“Sec. 4. That no release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged.”

The act of 1873 differs somewhat from the Homestead act of 1851, as amended in 1857. The last named act provided that “there shall be exempt from levy and forced sale under any process ór order from any court of law or equity, the lot of ground and the buildings thereon occupied as a residence, and owned by the debtor, being a householder and having a family, to the value of' $1000; * * * and no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and his wife, and acknowledged in the same manner as conveyances of real estate are, by law, required to be acknowledged, it being the object of this act to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead.” Under this act it was held in a number of cases, that where the property occupied as a homestead was worth more than $1000, a judgment, mortgage or deed of trust would become a lien, and might be enforced against the over-plus ; and the same is true as to the excess where there has been a conveyance without a release of the exemption, and the grantee may enforce his rights to the surplus. (McDonald v. Crandall, 43 Ill. 231; Haworth v. Travis, 67 id. 302.) In the last case cited it is said: “It will be observed that the law only exempts the lot of ground and the buildings thereon, to the value of $1000. The language employed can not be extended to the whole tract, where it exceeds that value. It is only so much of the lot as is worth the sum that is exempted, and not the entire lot upon which the debtor resides. * * * We can give the statute no other construction than it was intended to exempt the lot to the value of $1000, and leave the , remainder subject to lien and sale as any other real estate.”

There are a number of other decisions where the same doctrine was declared, where a construction of the act of 1851, as amended in 1857, was involved. The gist of the decisions under the old Exemption act was, that the exemption extended only to homestead property of the value of $1000,—that all in value exceeding that sum did not fall within the protection conferred by the statute. Now, while, under the act of 1873, an estate of homestead has been created in the place of a homestead exemption, so far as the question under consideration is concerned the same construction must be- placed on the act of 1873 that was placed on the act of 1851. There is much similarity in the language employed in the two acts. In the old one, there shall be exempt the lot of ground and the buildings thereon occupied as a residence, to the value of $1000, while, the later act declares, that a householder with a family shall be entitled to an estate of homestead to the extent in value of , $1000, etc. Indeed, the construction placed by this court on the act of 1873, as to the excess of homestead property over the sum of $1000, has been the same as was placed upon the act of 1851. In Eldridge v. Pierce, 90 Ill. 478, a case arose under the act of 1873, and it was said:' “Where the property in which this estate exists exceeds in' value $1000, the excess is plainly unaffected by the estate,— that is to say, the excess is liable to the same lien of judgment, attachment, etc., and to be aliened in the same manner that other real property of the householder is. ” In Moriarty v. Galt, 112 Ill. 377, this court again said: “If the property in ^ which this estate or exemption exists exceeds in value $1000, the excess is not exempt from lien, levy and sale, and it is liable to the same lien of judgments, etc., and to be aliened in the same manner as other property of the debtor.”

From these decisions it is apparent, that where property occupied as a homestead exceeds in value $1000, the estate exempted or controlled by the statute is measured by $1000 in value, and the excess over and above the $1000 in value may be sold by the owner, or may be taken on attachment or sold on execution like any other property. Here, Doyle occupied property as a residence, of the value of $50,000. He had an estate of homestead in that property of the value of $1000. That estate could only be sold or conveyed in the mode pointed out by the statute; but as to the.excess, he had a right to sell, by contract or by deed, in the same manner and with like effect as he could sell any other property which he might own, and which was unaffected by homestead exemption. Suppose the property was worth $100,000, and Doyle desired to sell, but his wife refused to join with him in a deed relinquishing the homestead, would it be a reasonable construction of the statute to hold that the owner was powerless to dispose of his property ? Such would be the case if the construction was adopted which has been relied upon by counsel for appellee.

The fallacy of appellee’s position arises from the assumption that property occupied as a homestead, regardless of value, can not be sold by the owner except in the mode pointed out by the statute, whereas the homestead exempt from attachment and from the laws of conveyance is one to the extent in value of $1000, and that alone. The contract involved in 'this case required Doyle to convey the premises. Of course, the deed would not pass the estate of homestead; but the appellant offered, as we understand the record, to pay the contract price agreed to be paid, and to accept a deed conveying the property subject to the homestead rights of Doyle. Upon this offer we think appellant was entitled to a deed, and the court erred in denying relief on the cross-bill. The rights of the parties may be settled, as to the homestead, in the manner pointed out in Hotchkiss v. Brooks, 93 Ill. 387.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings in conformity to the views here expressed.

Decree reversed,.


author: Mr. Chief Justice Shope

text:
    John D. Hart v. Lucy A. Burch.

      Filed at Springfield

      October 31, 1889.

    1. Dower—when the right becomes consummate—in respect to an estate in common. A died seized of lands, leaving a widow and eleven children, after which one of his sons died, leaving a widow and children: Held, that upon the death of such son his widow’s right of dower in the undivided one-eleventh part of the land of which the first party died seized, and of which her husband died seized as a tenant in common with his brothers and sisters, became consummate, and the right of action accrued to her to have the same assigned.
    2. Same—nature of the right before assignment—and to whom transferable.' The right of dower, when consummate, is, before assignment, a right existing in action only. It can exist only in the person upon whom it is cast by operation of law, and a deed or conveyance of it will pass no title, and can only be effective as a release and extinguishment of the right. Such right of dower is not the subject of transfer or sale, and can not be released to one not in privity with the title under which the dowress claims.
    3. While it is not necessary that the releasee should hold the fee, yet he must be the legal or equitable owner of the title, or stand in such relation thereto that the dower right, upon the execution of the release, will unite with the fee.
    4. In a proceeding for the partition of land between the tenants in common, in which the widow of one of the co-tenants was not served with process and had not appeared, certain of the lands were sold under the decree of the court. After such sale, and before its confirmation, the purchaser, who was one of the contestants, procured a release or quitclaim deed from the dowress: Held, that such deed or release was void, for the reason that the purchaser had no title, legal or equitable, in the lands.
    5. Same—tenancy in common—and herein, of the mode of assigning dower in an estate held in common. The dower of a widow of one of several tenants in common is an incumbrance upon the share or interest of which her husband was seized, and not upon the title of any of his co-tenants. It has been held that a widow having dower in the common estate may release to one tenant in common for his share, without releasing her dower to another tenant in common who has a different share.

      6. Where the husband dies seized of an undivided interest, in land as a tenant in common with others, his widow can not have her dower set ofi by metes and bounds, but is entitled to have the third part of the share of her husband, to hold in common with his co-tenants. Her dower must be assigned in common, as she can not have it otherwise than as her husband held his estate. In case of a partition her dower will follow the portion assigned to the heirs of her husband.
    7. Where lands held by tenants in common are ordered to be sold in a proceeding for partition, in which the widow of one of the parties is not brought into court by service or otherwise, but her interest was set out in the bill, and after the sale, and while the court still had jurisdiction, she appeared and consented to the decree and sale, and elected to take her dower interest in money, it was held, that the court might properly act upon such election, and award to her her interest in money without the filing of a cross-bill, as such action in no way effected the interest of the purchaser.
    8. Judicial sale—rights of purchaser—prior to confirmation of the sale. A sale of land by the master in chancery upon a decree of sale in a proceeding for partition is not. before confirmation, a sale, in a legal sense, but the bargain is incomplete, and confers no right in the land upon the purchaser. The court is, in fact, the vendor, and its final order of approval is essential to the completion of the sale.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    David Hart died seized of certain lands, and leaving him surviving, his widow, Elizabeth, and eleven children, to whom the land descended in equal parts, incumbered with the dower of said widow. Subsequently to the death of said David, Wesley B. Hart, one of such children and heirs-at-law, died intestate, leaving him surviving, his widow, Lucy A., appellee, and children, to whom his interest in said lands descended, subject to the dower of his widow. Afterwards, certain of the heirs-at-law of David Hart, deceased, filed a bill in the Morgan circuit court for partition and the assignment of dower to each of such widows,—to Elizabeth in the whole of said lands, and to Lucy A. in the undivided one-eleventh of such lands which had descended to Wesley B., subject to the dower of said Elizabeth,—and the bill contained apt averments for the assignment of dower to each,, respectively, hut the said Lucy-A., widow of Wesley B., was not summoned, nor was any further attention paid to or notice taken in the proceedings, of her interest until after the sale of the lands. Such proceedings were, however, had, that two hundred acres of said lands were allotted to said Elizabeth as her dower in the whole, and the residue having been reported as not being susceptible of division, a sale thereof was ordered. In pursuance of the decree for sale, the master sold portions of said lands, realizing therefor, net, $3364.46, after paying costs, etc., and which, upon report thereof to the court, was duly approved at the May term, 1886. Subsequently, in further execution of the decree for sale, the master sold the residue of said lands ordered sold, being two hundred and thirty-six acres, to appellant, John D. Hart, for $5929.87, which sale was, at the November term, 1886, of said court, duly approved. After the last mentioned sale tó John D. Hart, but before it was reported by the master or approved by the court, and on the 29th day of August, 1886, said John D., for the consideration of $50, procured the quitclaim deed of Lucy A. Burch, widow of said Wesley B., to himself, for all her interest in the lands of which David Hart died seized.
    On the 28th of March, 1887, and before the distribution of the money arising from said sales, but after their approval by the court, said widow, Lucy A., filed her interpleader in said cause, admitting that she was the widow of Wesley B. Hart, deceased, and endowable of the undivided one-eleventh of said lands as such widow, as alleged in the original bill, and averring that the same had never been allotted to her; affirming the sales made, and praying that her dower interest be ascertained and set off out of the money derived by sale of the interest in said lands in which her dower right existed, either by investing a sum in lieu of dower, or the allowance of a sum in gross, etc. Subsequently she filed her cross-bill, seeking the same relief, and also to have the quitclaim deed of August 29, 1886, set aside and cancelled, alleging a tender back of the consideration paid therefor, and bringing the same into court. On the 18th of May, 1888, she also filed a written election to take and accept in lieu of dower, etc., such sum in money as might be found equal to the same, out of the proceeds of the sale.
    The appellant, John D. Hart, answered, setting up and insisting, first, that said deed was a valid release of dower; and second, that the relief sought by said widow could be obtained only by original bill, to which the purchasers at the first sale were made parties. The tender back of the $50 paid for the deed was admitted, and it was agreed that if the court granted the relief sought by said widow, one-seventh of the sum, representing one-eleventh of the net proceeds of said sales, should be taken as the basis in fixing the sum to be taken by her in lieu of dower.
    . The court, by its decree, found said Lucy A. entitled to dower in the one-eleventh part of the land sold, and fixed the amount to be taken in lieu thereof accordingly; found the deed to John D. Hart void, and set the same aside, and directed the payment of the sum tendered,—$50,—to John D. Hart, etc. From this decree John D. Hart prosecutes this appeal.
    Messrs. Morrison & Whitlock, for the appéllant:
    The. decree is erroneous, because Lucy A. Burch was not a party in the original proceeding. If her deed was inoperative, the title to the first sale having passed to the several purchasers, then she placed herself in the position of seeking to dispose of her dower interest in lands, while the owners of the fee were not parties to the suit. If she could recover her dowér in the lands first sold, she must do it by bill making the owners of the fee parties. The decree of sale required a lien to be reserved in the deed of the master, and John D. Hart was interested in the fund secured by that lien. He was one of the distributees. He was in equity bound to the purchasers, and he would have no right t'o assert this right of dower in the lands first sold. This was all that was required in order to enable Mrs. Burch to make a valid release of dower to him. Chicago Dock Co. v. Kinzie, 49 Ill. 295.
    But the circuit court was not content in holding the grantee in the deed was not entitled to the proceeds of the dower of Mrs. Burch in the lands first sold, and in setting aside the deed as to them, but the decree goes further, and sets aside the deed as to all the lands,—that is, declares the same void. John D. Hart was the equitable owner of the two hundred and thirty-six acres purchased by him at the sale of August 5,1886, at the date of the deed to him of August 29, 1886. The sale was not complete till approved, but he was the equitable owner of the entire title, subject to the dower of Mrs. Burch and of the lien for the unpaid part of the purchase money. We think, according to Bailey v. West, 41 Ill. 290, Robbins v. Kinzie, 45 id. 354, and Chicago Dock Co. v. Kinzie, 49 id. 289, John D. Hart sustained such relations to the title as enabled him to take and Mrs. Burch to release to him her dower right in the lands purchased at the second sale. At all events the deed was valid as to those lands, and it follows the decree is erroneous, because it sets aside the deed as to them.
    John D. Hart was the owner of an undivided interest in all the lands set off to Mrs. Elizabeth Hart for her dower in the estate of her deceased husband, David Hart. John D. Hart purchased and paid for the unassigned dower interest of Mrs. Burch in these lands, with the other lands of David Hart, deceased.
    Mr. M. T. Layman, for the appellee:
    Dower can not be conveyed before it is assigned. The dowress may release it so as to bar her from asserting it against the owner in fee. Blain v. Harrison, 11 Ill. 384; Summers v. Babb, 13 id. 483; Bailey v. West, 41 id. 290.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

The principal question arising upon this record is, whether the quitclaim deed of August 29, 1886, from Lucy A. Burch, appellee, to appellant, operated to release her dower in the lands of which her husband died seized. It is not questioned that this deed was in every way sufficient for that purpose, if the grantee therein stood in such relation to the estate that a release thereof to him would unite the dower with the fee. Upon the death of her husband, Wesley B. Hart, appellee’s right of dower in the undivided one-eleventh part of the land of which David Hart died seized, and of which her husband died seized as tenant in common with his brothers and sisters, became consummate, and the right of action accrued to her to have the same assigned. The right of dower, when consummate, is, before assignment, a right resting in action only. It can exist only in the person upon whom it is cast by operation of law, and a deed or conveyance of it will pass no title, and can only be effective as a release and extinguishment of the right. Such right of dower is not the subject of transfer or sale, and can not be released to one not in privity with the title under which the dowress claims. Washburn on Real Prop. 247, 252, 301; 1 Scribner on Dower, 478; Summers v. Babb, 13 Ill. 483; Chicago Dock Co. v. Kinzie, 49 id. 289; Reiff v. Horst, 55 Md. 42; Kitzmiller v. Van Rensalear, 10 Ohio St. 63.

While it is not necessary that the releasee should hold the fee, yet he must be the legal or equitable owner of the title, or stand in such relation thereto that the dower right, upon execution of the release, will unite with the fee. An attempted conveyance to one not standing in such privity is ineffectual to release dower.

Some months before the execution of the deed by the dow-ress, a considerable portion of the land had been sold at the master’s sale, under the decree in partition, to strangers, and the deeds confirmed. Afterward, but still before the making of the deed by the dowress, the residue of the land was sold by the master in chancery, in further execution of the decree in partition, to appellant, but no report of the sale had been made or confirmation thereof had, nor a conveyance by the master made, until some months after the execution of the deed by the dowress to appellant. Did appellant, by virtue of his purchase at the master’s sale, acquire such interest in the land as would enable him to take a release of dower ? It is clear he did not as to all that portion which had previously been sold to others. The title to so much had passed into others with whom he had no connection. Whatever right he may have had in these lands had been extinguished by the sale, and the deeds made in pursuance thereof. Nor did he stand in the relation of warrantor in the chain of title, so as to bring him within the rule that a warrantor may purchase in the dower outstanding, and thus relieve himself from liability upon his covenants of warranty.

In respect of the portion purchased by appellant, it is contended that although the sale was not complete until approved, he was nevertheless the equitable owner of the title, and might purchase in the dower of appellee. This, we think, is an erroneous view. It is true, that the release may be made to the equitable owner of the land, for'he could not assert it against the fee owner, but upon its release to him would become merged and extinguished. The difficulty here lies, not in ascertaining the rule of law, but in the relation appellant sustained to the title by virtue of his purchase.

A sale by a master in chancery, or other person authorized to execute the decrees in chancery, is not, until confirmed by the court, a sale, in a legal sense. Until confirmed, the bargain is incomplete, and confers no right in the land upon the purchaser. “Until then,3’ says Mr. Bohrer, (Judicial Sales, sec. 124,) “it is a sale only in the popular sense, and not a legal or judicial sense. The chancellor has a broad discretion in the approval or disapproval of such sale. The accepted bidder acquires, by the mere acceptance of his bid, no independent right * * * to have his purchase completed, but is merely a preferred proposer, until confirmation of the sale by the court, as agreed to by its ministerial agent.” (See Young v. Keogh, 11 Ill. 642; Ayres v. Baumgarten, 15 id. 444 ; Rawlings v. Bailey, id. 178; Bussy v. Hardin, 2 B. Mon. 407; Hay’s Appeal, 51 Pa. St. 58.) In the case last cited the court says: “Even the highest bidder, whose bid has been returned to the court as the best offered, has acquired no right which debars the heirs or their counsel from endeavoring to have his bid rejected and a re-sale ordered. His bid, though the highest, was but an offer to purchase, subject to the approval or disapproval of the court, and in approving sales made in partition, it is the duty of the court to regard primarily the interest of the heirs.”

But if the authorities were not comparatively uniform in this respect, it would seem no doubt would remain upon reading the statute of this State in respect thereto. (Secs. 29 and 30, chap. 106, Bev. Stat.) It will be seen that the matter of the sale and purchase is left in fieri until the court shall render its order of approval. Confirmation is final consent, and the court, being in fact the vendor, may consent, or not, in its discretion. (Bohrer on Judicial Sales, secs. 122-132.) The purchaser therefore acquires ho interest in or right to the land, and being a mere offerer to purchase, stands in no such relation to the title that a purchase in of a dower interest therein would unite it with the fee. It follows that appellant, by virtue of his purchase at such master’s sale, acquired no such interest in the land as would enable him take a release of dower.

It is also urged, that appellant was owner, as tenant in common with the other , heirs-at-law of David Hart, deceased, of an undivided interest in all the land set off to Mrs. Elizabeth Hart, widow of said David, for her dower, as well as in all the land of which said David died seized. It is true that appellant owned the undivided one-eleventh of all of said land as tenant in .common with his brothers and sisters, or the heirs of such as were deceased. The children and heirs-at-law of Wesley B. Hart, also, as representing their father’s share, were seized of a like interest in common.

It is said that appellant, as tenant in common in said lands, might purchase in the outstanding dower of the widow of said Wesley B. Hart, deceased. It may readily be conceded that one tenant in common may buy in an outstanding incum-brance or right of dower affecting the common estate, and may compel contribution therefor from his co-tenants, and still this contention remain entirely groundless in this case. Bach tenant in common was here seized of the undivided one-eleventh part of the estate, subject to the dower of the widow of their father, David Hart, which, as we have seen, was assigned in this proceeding, leaving the residue unincumbered thereby. Wesley B. Hart, one of the tenants in common, died, leaving children, to whom his interest descended, incumbered by the dower of his widow. The dower right arose, by operation of law, upon the seizin of the husband, and accompanied and was dependent upon the estate of the husband in the land, and was an incumbrance upon the share or interest to which he had title, and none other. No claim or right of dower in the widow of Wesley B. attached to the share or portion of any of his co-tenants. The only unity required between tenants in common is that of possession. (2 Cruise’s Digest, tit. 20, 2.) One tenant in common may hold in fee simple and another for life; one may hold by descent and another by purchase. Thus it is that tenancies in common descend to the heirs of each tenant, because they have several freeholds and not an entirety of interest. (Ibid. 8.) And it has been held that a widow, having dower in the common estate, may release to one tenant in common for his share, without releasing her dower to another tenant in common who has a different share. White v. White, 1 Harr.. 202.

Dower, under our statute, is assignable by metes and bounds when the land is susceptible of division without manifest prejudice to the parties in interest; but there is no provision, in terms, for the assignment in lands held in common, and in determining the mode of assignment, where partition between the tenants in common is not made, resort must be had to the rules of the common law. At common law the widow was entitled to have assigned to her one-third of the lands and tenements of which she was dowable, to be set out by metes and bounds, where it was practicable. Such is the widow’s common law right. When the property did not admit of an assignment of dower in severalty, either from the nature of the husband’s interest in it or from the quality of the thing itself, the assignment by metes and bounds was necessarily dispensed with. “Thus, if the husband be seized in common, or in co-parcenary, and die without partition, the widow can not have her dower assigned by metes and bounds, but shall have the third part of the share of her husband, to hold in common with the heir and the other tenants.” (Co. Litt. 32 b; Scribner on Dower, 80; Sutton v. Rolfe, 3 Lev. 84.) In cases where the widow was entitled to dower of a part or portion held as tenant in common, the dower must be assigned in common. She being entitled, pro tanto, of her husband’s estate, can not have it otherwise than her husband had it. (Cruise’s Digest, tit. 6, chap. 3, sec. 10, and tit. 20, sec. 25.) That is, she being by the statute endowable of the lands of which her husband died seized, is let into the estate as he possessed it as his decease, and not otherwise;—so that, the dower of his mother having been assigned, the heirs of Wesley B. Hart held in common one-eleventh of the residue, subject to the dower of appellee therein, and she would be entitled to one-third of one-eleventh for her life in common, and the heirs-at-law of Wesley B. Hart to two-thirds of one-eleventh thereof during the continuance of her life estate. In case of partition, as we have seen, such dower interest would follow the portion assigned to 'the heirs of Wesley B. Hart. See, also, French v. Lord, 69 Me. 536.

It must be apparent that this dower right was not an in-cumbrance upon the estate held in common. Appellant had no interest in, or right (legal or equitable) to, the undivided portion of the land out of which appellee’s dower arose and upon which it was alone dependent. A conveyance to him would, therefore, no more unite it with the fee vested in the heirs-at-law of Wesley B. Hart, than would a conveyance to any stranger to the title.

It is also insisted, that relief was improperly granted without the filing of an original hill by appellee, to which the purchasers at the first sale were made parties. The original bill filed by appellant, by apt averment set out the dower interest of appellee, and prayed for its assignment, and which were ample upon which to base the decree. The fund derived from the sale was in the control of the court, for distribution'; and although she had not been served, and the cause had proceeded to decree and sale without further notice of her dower right, yet appellee, while the court had jurisdiction, came into court, consented to the decree and sale, and elected to take her dower interest in money. The land had been reported not susceptible of division. There is no pretense the land had not sold for it's full value, and we can see no impropriety in the decree rendered. Nor were the purchasers at the first sale at all necessary parties. It would have been inequitable to have burdened them with the expense of independent litigation. By the decree rendered, their interests are in no way affected.

Finding no error in the record, the decree is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    William Fielding v. Ellen Fitzgerald et al.

      Filed at Springfield

      October 31, 1889.

    1. Amendment of answer in chancery — after the hearing — how the application should be supported. After the trial of the issues in a chancery suit, an amendment of the answer retracting an important admission and presenting a different issue will not be allowed without affidavit'or other evidence in support of the application.
    2. A bill to contest a will showed that the will had been admitted to probate, and this was admitted by the answer. Atrial was had, resulting in a verdict against the alleged will. A motion for a new trial was entered at the same term. At the term following, the motion was overruled, when the proponents moved the court for leave to amend their answer, so as to show that at the trial there was a pending appeal from the order of the county court admitting the will to probate. The motion was not accompanied by any affidavit or other evidence showing the truthfulness of the proposed amendment, and the motion was overruled : Held, that the amendment was properly refused, for the reason it was not accompanied with any affidavit or other evidence showing the truth of the proposed amendment.
    Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Mr. James M. Graham, and Mr. T. S. Casey, for the plaintiff in error:
    While the appeal was pending the court of chancery had no jurisdiction to entertain a bill to set aside the will. As soon as the appeal was perfected the order of the county court was vacated and set aside, and the matter would be heard in the circuit court de novo. Rev. Stat. chap. 148, sec. 14; id. chap. 37, sec. 59 ; Poole v. Breese, 114 Ill. 598; Rigg v. Wilton, 13 id. 16; Dodge v. People, 113 id. 493; Luther v. Luther, 122 id. 560; Freeman on Judgments, sec. 328, and note; In re Storey, 120 Ill. 249; Edwards v. Vandemack, 13 id. 633.

      When the appeal was perfected the contestants had cut themselves off from all relief in chancery until the will was probated. By the appeal the circuit court acquired and the county court lost jurisdiction, and as the hearing in the circuit court is de novo, their bill in chancery could not lie. The statute thus expressly gives a remedy for any error committed by the probate court, by an appeal to the circuit court, and the defendants in error had availed themselves of that remedy. Ennis v. Ennis, 110 Ill. 81; 103 id. 95.
    A court of chancery has only such power over wills as the statute gives it, and to be exercised only in the way pointed out by the statute. None of those powers are probate powers. Rev. Stat. chap. 148, sec. 7; Luther v. Luther, 122 Ill. 560.
    Even if there was something tangible for the court to act upon, still it did not obtain jurisdiction of the subject matter, as the court which’ first obtained jurisdiction would retain it. Mason v. Piggott, 11 Ill. 86; Ross v. Buchanan, 13 id. 58 ; Chittenden v. Rogers, 42 id. 96; Rogers v. King, 8 Paige, 210; Lewis v. Mahoney, 12 Hun, 208; Groshen v. Lyon, 16 Barb. 401; Mail v. Maxwell, 107 Ill. 559; 1 Pomeroy’s Eq. 114.
    Nor could the parties confer jurisdiction of the subject matter, either by neglect or consent, as it is always conferred by law, and not by admissions of the parties or by the pleadings. Leman v. Sherman, 117 Ill. 657; Thomas v. People, 107 id. 517; Foley v. People, Beecher’s Breese, 57; Fahs v. Barling, 82 Ill. 142.
    Nor was it necessary that the question of jurisdiction should be raised by the proponents of the will, as it was the duty of the court, sua sponte, to take notice of its want of jurisdiction. It was, however, affirmatively 'brought to the attention of the court by proponents’ motion for leave to amend their answer. Kimball v. Walker, 30 Ill. 503; Oelrichs v. Williams, 15 Wall. 211; Richards v. Railway Co. 25 Ill. App. 348; Pearson v. Zebr, 26 id. 286.

      Messrs. Patton & Hamilton, and Messrs. Palmers & Shutt, for the defendants in error:
    The motion for leave to amend the answer was properly refused, because it came too late, and it was a proper exercise of discretion to disallow it. Leave to amend chancery pleadings is in the discretion of the court, and is not subject to review unless it is clearly an abuse of such discretion. Booth v. Wiley, 102 Ill. 84; March v. Mayers, 85 id. 177; Gordon v. Reynolds, 114 id. 118.
    It is a matter of discretion with the court whether it will allow an amendment of an answer, and there is no error in refusing it where no excuse is shown for not putting its matter in the original answer, and its truth is not shown by affidavit. Higgins v. Curtiss, 82 Ill. 28.
    It certainly is not an abuse of discretion for a court to refuse an amendment to an answer tendered after the trial of an issue by jury, and at a subsequent term of the court.
    No excuse whatever is shown for not setting up the matter contained in the proffered amendment in the answer to the bill, to which replication was properly filed. Had the court permitted the amendment there would have been an abuse of judicial discretion, because it would have presented a new issue of fact, which, of itself, would have operated to give a new trial, without regard to the finding of the jury on the issue which had been tried and decided by them.
    A defendant has no right to withhold a part of his case, and, after trial and adverse finding, have a rehearing by amending his answer and bringing in matters which he neglected to set up in his original answer, however material they may be to his defense.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill by Ellen Fitzgerald, widow, and certain other persons as heirs-at-law, of Maurice Fitzgerald, deceased, to contest an instrument purporting to be his last will and testament. The hill was filed under the seventh section of chapter 148 of the Eevised Statutes of 1874, entitled “Wills,” and it is, among other things, therein alleged, that the said Maurice made his will and died testate, and that after his death, and “on the 14th day of September, 1888, the will was duly probated in the county court of Sangamon county, by William Fielding, the executor therein named; that the said Fielding entered into bond, and took upon himself the duties of such executor. ” Fielding and certain heirs-at.-law of the deceased are made defendants. Fielding filed an answer, wherein he “admits that Maurice Fitzgerald died at the time stated; that he made his will; that the will was duly probated, and that he was named and appointed executor, etc.; that he gave bond as required,” etc.

On the 7th of December, 1888, being one of the days of the November term of the court, upon motion of the proponents of the will, the cause was dismissed as to Ellen Fitzgerald and Charles Warner, and thereafter, on the same day, the issue presented by the bill and answer was tried by a jury, who returned a verdict that “the writing produced is not the last will and testament of Maurice Fitzgerald, deceased; ” and thereupon the proponents, by -their counsel, entered a motion for a new trial, which was overruled by the court. At the January term, 1889, of the court, proponents asked leave to amend their answer by adding thereto the following:

“Tour respondents further show, that before the filing of the bill in this cause, to-wit", on the 1st day of October, A. D. 1888, Ellen Fitzgerald, the widow of the said Maurice Fitzgerald, deceased, prosecuted and perfected an appeal from the said judgment of the county court in said cause, [i. e., probating said will,] to the circuit court of said county and State, which said appeal is still pending. And your respondents aver that said appeal, being pending as aforesaid, this honorable court .has no power or jurisdiction to hear and determine the allegations in said bill contained.”

It does not appear that this was accompanied by any affidavit or other evidence showing its truthfulness. The court overruled the motion.

There is no bill of exceptions, or certificate of evidence properly signed, in the record, and the only question, therefore, that we can consider, is, did the court err in refusing to allow the proposed amendment to be made to the answer ?

Waiving all question of the effect of the amendment if it had been allowed, we think the court ruled properly in not allowing the amendment to be made, for the reason that the motion was not accompanied by an affidavit, or any other evidence proving the truth of the matters of the proposed amendment. The answer filed admitted the truth of the allegation that the will had been duly probated. It would, to say the least, be hut trifling with the court to allow a party, as here, after proceeding to the trial of the issue presented by his answer, and being defeated therein, upon his mere request, unsupported by any evidence of mistake in his former answer, to take hack this admission and present a new issue,—that of whether the will has been probated, within the meaning of that word as used in the section of the statute under which the bill was filed. Such a practice would lead to oppression, and it is clearly beyond any discretion vested in the court. Maher v. Bull, Admx. 39 Ill. 531; Higgins v. Curtiss et al. 82 id. 28.

Finding no error in the record, the decree is affirmed.

Decree affirmed.