Williams v. Esten

• Decision Date: 17 April 1899
• Parties: WILLIAMS v. ESTEN.
• Court: Illinois Supreme Court

179 Ill. 267

53 N.E. 562

WILLIAMS

v.ESTEN.

Supreme Court of Illinois.

April 17, 1899.

Appeal from circuit court, Logan county; George W. Herdman, Judge.

Ejectment by Theodocia A. J. E. Williams against Emma Esten. From a judgment for defendant, plaintiff appeals. Affirmed.E. C. Perkins and Blinn & Harris, for appellant.

J. T. & F. M. Hoblit and Oscar Allen, for appellee.

This was an action of ejectment brought by appellant against appellee to recover possession of the following lands: The W. 1/2 of the N. E. 1/4 of section 2, except about 15.59 acres in the plat of Thomas Esten of the village of Lawndale, in township 20; also, all that part of the S. 1/2 of the S. W. 1/4 lying west of the Chicago & Alton Railroad track, in section 36, township 21 N., range 2 W. of the third P. M., Logan county, Ill. The defendant pleaded ‘Not guilty,’ and the case was tried before the court, a jury being waived. The finding and judgment were for defendant, and plaintiff prosecutes this appeal. Both parties claimed through Thomas Esten, deceased, as a common source of title. The said Thomas Esten by his last will devised the land first described in the declaration to his widow, Losana Esten, for and during her natural life, and after her death to go to his son, Aurelian, and his daughter, Theodocia Alice Jenkins Esten, the appellant. By the third clause he gave to the said daughter lots Nos. 1, 3, 4, 5, and 6 in block 7 in Lawndale, with the buildings thereon; also, the N. W. 1/4 of the S. E. 1/4 of section 33, township 21, range 2 W. of the third P. M. By the fourth clause he bequeathed to his son, Aurelian Esten, all his property, real and personal, not devised to his wife and daughter. The fifth clause is in the following language: ‘In case of the death of the said Aurelian Esten without heirs born unto him, all of the property devised unto him shall be devised and given unto the said Theodocia Alice Jenkins Esten, or, in case of the death of the said Theodocia Alice Jenkins Esten without heirs born unto her, the property devised unto her shall be devised and given unto the said Aurelian Esten.’ By a codicil to his will he provided that the daughter should receive from the son, who was named as his executor, the sum of $2,500 out of his estate, in lieu of her share of the property given to his wife, and at her death to the son and daughter, in the second division of his will stating, ‘So that all the property named in the second division of said will at the decease of my wife shall go to Aurelian Esten.’Upon the death of his father, Aurelian Esten took possession of the lands in controversy, and remained in possession of the same during his lifetime. The daughter intermarried with one Samuel R. Williams, and on June 27, 1876, in consideration of $450, executed an instrument in writing to her brother, Aurelian Esten, purporting to convey or release to him ‘all the right, title, interest, claim, and demand which she had in and to certain lots and lands,’ including both tracts described in her declaration in this action. On the 29th day of June, 1876, in consideration of $1, the son, Aurelian Esten, quitclaimed and released to her all his right, title, and interest in and to the lots and lands devised to her by the third clause of the father's will, as above stated. Aurelian Esten died in February, 1895, ‘without heirs born unto him,’ leaving the defendant below, Emma Esten, his widow, to whom he willed all his property, real and personal.

CRAIG, J. (after stating the facts).

This case was before us at a former term, and upon the hearing we affirmed the judgment of the circuit court, but upon application for a rehearing, in view of the importance of the question involved, we granted the same. Since granting a rehearing we have carefully considered the case again, but have not been able to reach a different conclusion from that arrived at on the last hearing.

The death of the widow of Thomas Esten does not affirmatively appear from the evidence as set out in the record, but that fact has been assumed by counsel in the argument, and not denied. We shall therefore treat the case as though the death of the widow was established, and her life estate terminated.

Under the provisions of the will of Thomas Esten, deceased, Aurelian Esten, the son of the testator, took a freehold estate in the lands devised to him. He became vested with the fee, determinable upon his death without children. During the life of Aurelian Esten the interest of appellant in the lands devised to him was contingent upon her surviving him, and upon his death without children or ‘heirs born unto him.’ As both of these contingencies happened, the appellant would have become the owner of the premises in fee, if, during the lifetime of Aurelian Esten, she had done nothing to devest herself of her interest in the premises. It appears, however, that on June 27, 1876, she executed a release deed of her interest to Aurelian, who was then in the possession of the premises, and the real question presented by the record is, what effect is to be given to that instrument? It is claimed on the one hand that the rights of the appellant were in no manner affected by that instrument, while on the other hand it is insisted that all of her right, title, and interest in the premises, both present and contingent, was devested upon the execution and delivery of the instrument. It may be conceded that a contingent remainder will not pass by a quitclaim deed made to a stranger to the title, and it is also true that a quitclaim deed executed by a person who has no interest in the land will not vest a title subsequently acquired by the grantor. The law on this subject was settled in Frink v. Darst, 14 Ill. 304, and, so far as we are advised, it has never been departed from in this state. Where, however, a party conveys lands with covenants of warranty, he cannot be allowed to set up against his grantee, or those claiming...