51 N.E. 770 (Ill. 1898), Dunn v. Berkshire

Citation:51 N.E. 770, 175 Ill. 243
Opinion Judge:[175 Ill. 247] PHILLIPS, J. (after stating the facts).
Party Name:DUNN et al. v. BERKSHIRE et al.
Attorney:[175 Ill. 245]Cunningham & Boggs, for plaintiffs in error. [175 Ill. 247] F. M. Green, for defendant in error.
Case Date:October 24, 1898
Court:Supreme Court of Illinois
 
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Page 770

51 N.E. 770 (Ill. 1898)

175 Ill. 243

DUNN et al.

v.

BERKSHIRE et al.

Supreme Court of Illinois

October 24, 1898

         Error to circuit court, Champaign county; Francis M. Wright, Judge.

         Bill by Mary F. Dunn and others against Jesse B. Berkshire and another. From an adverse decree, complainants bring error. Affirmed.

Page 771

         [175 Ill. 245]Cunningham & Boggs, for plaintiffs in error.

         [175 Ill. 247] F. M. Green, for defendant in error.

         [175 Ill. 243]This was a bill in equity, filed by plaintiffs in error, praying for the partition of certain lands lying in Champaign county, Ill. The bill set forth that Elizabeth Berkshire died seised of an undivided one-half interest in certain lands about 1863, and that in February, 1896, Greenbury Berkshire, her husband, died, testate, seised in fee simple of the other one-half interest, and also of other lands, including the 40 acres in controversy. The bill alleges further that Greenbury Berkshire left an instrument in writing purporting to be his last will and testament, but that at the time of its execution he was not of sound mind and memory, and prayed that it be set aside, and for division and partition of the premises. The inability[175 Ill. 244] of the testator to execute a will was admitted by all parties interested, and did not become a contested issue. An answer was filed by the defendant Jesse B. Berkshire, admitting the material allegations of the bill as to the death, heirship, and rights and interests of the parties, but averring, as to the S.E. 1/4 of the S.W. 1/4 of section 8, township 20 N., range 10 E. of the third P. M., that Greenbury Berkshire at the time of his death had no interest whatever in said lands, but that the same belonged to him (the defendant). Thereafter he filed his cross bill, which, as counsel for plaintiffs in error say, 'contains the following averments, which constitute, with the answer thereto, the only controversy in this cause.' These averments were that at the time of his death Greenbury Berkshire had no interest in this land, but that it belonged to defendant in error, and that he obtained title thereto by paying for it with his own money; that in the year 1873 he was requested by his father to take possession of, cultivate, improve, and purchase said 40 acres; that he was then residing in the state of Missouri, and at the request of his father he came to Illinois, and settled upon and took possession of this 40 acres, and paid his father the purchase price thereof, and continued in possession until the time of the filing of the answer and cross bill; that the father, Greenbury Berkshire, told the defendant in error, his son, repeatedly, that the land belonged to the son, and that he would make him a deed for it, but that defendant in error, being in no hurry for the delivery of the deed, allowed the matter to run along until his father unexpectedly and unfortunately became deranged, and his mental condition so much impaired as to render him incompetent to transact ordinary business, wherefore he could not deliver to defendant in error a deed for such land. An answer was filed to this cross bill, denying the material allegations of it, and specially pleading the statute of frauds and the statute of limitations. Replications [175 Ill. 245] being filed, the cause was referred...

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