Lowe v. Foulke

• Citation: 103 Ill. 58,1882 WL 10285
• Parties: HENRY LOWEv.HENRY FOULKE et al.
• Decision Date: 12 May 1882
• Court: Supreme Court of Illinois

103 Ill. 58

1882 WL 10285 (Ill.)

HENRY LOWE

v.HENRY FOULKE et al.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.

APPEAL from the Circuit Court of Will county; the Hon. FRANCIS GOODSPEED, Judge, presiding.

Mr. THOMAS H. HUTCHINS, for the appellant.

Mr. D. H. PINNEY, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

It is clear the present judgment can not stand. The action is ejectment, and purports to have been brought by all the heirs at law of Joseph Foulke, deceased, against Thomas Martin and Henry Lowe, to recover an eighty-acre tract of land, described in the declaration. Plaintiffs claim, by the pleadings, the fee simple title to the premises as heirs at law of the decedent, and on the trial recovered a judgment for the entire tract. From that judgment Henry Lowe has appealed to this court. Martin, the other defendant, being his tenant, and claiming no title to the land, defends no farther.

Should it be conceded the proof shows the title to the premises was in the ancestor of plaintiffs, it appears they have recovered more than belongs to them. One of the devisees,--that is, Mary F. Stone, a daughter of the testator, and wife of Henry A. Stone,--died after the death of the testator, leaving three children, only two of whom were living when this suit was brought. The record is silent as to whether Henry A. Stone, husband of Mary, is still living. It appears he was living at the time of the making of the will, because the testator refers to his daughter Mary as the wife of Henry A. Stone. In the same paragraph he refers to his daughter Sarah as widow of Peter Smith. Had Mary been a widow then, no doubt the testator would have referred to the fact, as he did in relation to his other daughter. In the absence of proof, no presumption will be indulged that he has since died. He would, if living, be an heir to his deceased child with his other children, and may be he would be a tenant by the curtesy of the lands of his wife, and entitled to a life estate in the same. But in regard to the latter estate the evidence in the record is not full enough to enable the court to determine. At all events, if living, Henry A. Stone has some interest in the premises. He is not a coplaintiff, and yet the present plaintiffs have recovered judgment for the entire property. The error in the finding of the court in this regard is fatal to the present judgment.

Counsel for plaintiffs asks to be permitted to enter a re...