Jarrot v. Vaughn

• Decision Date: 31 December 1845
• Citation: 1845 WL 3916,2 Gilman 132,7 Ill. 132
• Parties: JULIA JARROTv.JOSHUA VAUGHN.
• Court: Illinois Supreme Court

2 Gilman 132

7 Ill. 132

1845 WL 3916 (Ill.)

JULIA JARROT

v.JOSHUA VAUGHN.

Supreme Court of Illinois.

December Term, 1845.

DEBT under the statute for cutting timber, etc., brought by the plaintiff in error against the defendant in error. The cause was heard at the October term, 1845, in the Madison circuit court, before the Hon. Gustavus P. Koerner and a jury. Verdict for the defendant, and judgment against the plaintiff for costs.

The pleadings and other proceedings appear in the opinion of the court.

W. MARTIN, for the plaintiff in error.

1. The plaintiff, under the will of Nicholas Jarrot, has such an estate in the premises, as to enable her to sustain an action of debt for cutting timber.

This court has not decided that the plaintiff, to sustain this action, must be owner in fee simple of the premises trespassed upon. Such a construction given to the law authorizing this action, would implicate the legislature in unjust and partial legislation. It would deprive tenants for years, tenants in dower, tenants by the curtesy, and all other persons who have a life estate in lands, and who have an interest in the timber thereon, of the remedy provided by said law. An estate devised to one person for life, with the remainder in fee, would be placed beyond the remedy of this law, upon the principle, that during the life estate the fee simple is in abeyance, and resides nowhere. See 6 Mass. 251, as to the term “owner of the land;” and 1 Hilliard's Abr. 28, § 45, as to an estate in abeyance.

2. The plaintiff, under the will of Nicholas Jarrot, takes a fee simple in the premises.

The plaintiff by the will takes a life estate, with power to sell in fee for her own use, and at discretion. This creates in her a fee simple estate, for the reason, that the estate in reversion appointed by the said will could not be set up to defeat the estate in fee that the plaintiff may create by executing said power. Hence the reversion to the heirs of Jarrot is void. 16 Johns. 588-9; 8 Cowen, 284; 16 Vesey, 139; 19 do. 87; Breese 46.

N. D. STRONG, for the defendant in error.

1. What title has Julia Jarrot under the will of Nicholas Jarrot? If she had a fee simple, there is an end of the case. The will of the testator, his intention, is the best interpretation. He appoints his wife his executrix; gives her, not his estate, but the enjoyment of it during her life. There is no devise of it, no bequest of his property. “During her life,” are the terms used; it is a simple enjoyment; nothing more.

By the seventh section, the executrix is empowered, out of this estate, immediately after his death, to allot to his children, a quantity of land, not more than three hundred and twenty acres, nor less than one hnndred and sixty acres, in advance of the reversion to them, according to her judgment and discretion. It negatives the idea that the property was her own. No words could be more expressive. If she was to die before such an allotment to all, then the money was to be distributed to those who had received no allotment.

The eighth section is relied on by the plaintiff. It provides that she might sell for her support in case of a deficiency of income. He left a large estate, and wished her to be supported, and made this provision for the contingency of a deficiency of such income. Her only right was to make the application; she could not dispose of the property by will.

Then there was the provision for a remainder over to the children, in the tenth clause of the will.

The cases in Breese's, Johnson's and Cowen's Reports are against the positions of plaintiff; they do not apply to this case. The will of Nicholas Jarrot does not create an estate in fee, but simply a life estate.

2. The court is bound to take the law as they find it. There are four decisions of the Supreme court on the subject. This is a penal proceeding and intended as a punishment to the offender. 2 Scam. 460. Besides, the party may proceed for actual damages sustained. In regard to penal statutes, the court is referred to 4 Peters' Cond. R. 62.

The counsel for plaintiff contends that the legislature never contemplated that the word “owner” should mean an “owner in fee simple.” He would have it apply to all kinds of estates, but the court will not extend the construction of the statute. Wright v. Bennett, 3 Scam. 259. This court has decided that a mere possessory interest was not sufficient to maintain the action, but intimated that a fee simple was sufficient. The case in the same volume, page 537, confirms this view, as also the case in 4 Scam. 337.

YOUNG, J.^a1

This was an action of debt brought by Julia Jarrot, the plaintiff in error, to the October term of the Madison circuit court, 1844, against Joshua Vaughn, the defendant in error, to recover certain penalties imposed by the statute, for alleged trespasses by cutting timber trees on the land of the plaintiff, between the 10th day of October, 1839, and the commencement of the suit in October, 1844.

The defendant, at the same term, filed two pleas to the declaration, to wit: nil debet and liberum tenementum. The plaintiff joined issue to the country on the first plea, and the cause was continued without further proceedings, from time to time, until the October term, 1845, when the plaintiff by her attorney filed a demurrer to the defendant's second plea of liberum tenementum, which was joined by the defendant, and the court being of opinion, after argument, that the declaration was insufficient, sustained the demurrer to the declaration. The plaintiff obtained leave and amended her declaration at the same term, to which the defendant pleaded nil debet only, and issue being taken thereon to the country, the cause was submitted for trial to a jury.

The plaintiff then produced in evidence, for the purpose of maintaining her action, after making the proper affidavits of loss, etc., first the exemplification of the patent from the United States to Joseph Barlett, dated March 19, 1819, for the land mentioned in the declaration; and secondly, the record of a deed of conveyance from Joseph Bartlett and wife to Nicholas Jarrot, for the same land, dated the 21st day of September, 1814; and then offered in evidence, for the purpose of showing title in herself as widow and executrix of Nicholas Jarrot, deceased, a copy of the last will and testament of the said Jarrot, dated the 6th day of February, 1818, and admitted to probate the 18th day of December, 1820, which is as follows:

“In the name of God, Amen; as it is certain that I must die, and that I do not know neither the hour nor the moment when it shall please God to determine my days, I, therefore, being in perfect health, have put order to my affairs in the following manner: In the name of the Father, and of the Son, and of the Holy Ghost, so be it. I give my body to the worms, and my soul to God, and supplicate his divine goodness to have pity on me. I implore the help of the Holy Virgin to be so good as to intercede for me towards the Divine Son all the days of my life, and at the hour of my death, so be it. I name for my executrix testamentary the person of Julie Beauvais, my wife, to whom I give the enjoying of all my property, as well real as personal that I may have after my death, and at the moment of my dying, for her to enjoy peaceably during her life; on condition that with my said property she will fulfill the conditions hereafter mentioned, that is to say; 1st. I request that my debts be paid by my executrix testamentary mentioned. 2d. I demand that my executrix testamentary get one hundred masses said, and one funeral high mass. 3d. I request that she give to the church the sum of one hundred dollars as soon as she can. 4th. I will that she distribute to the poor, as soon as she can, a sum not exceeding two hundred dollars. 5th. I request also, that she procure the best education which is possible to be had in the United States for my two sons, Francois and Vital. 6th. I also request that she get instructed my two daughters, named Julie and Felicity. 7th. I also request that my executrix testamentary aforesaid give to each of my children a quantity of land not exceeding more than three hundred and twenty acres, and not less than one hundred and sixty acres, to be taken off my said lands, and on the spots and places which the said executrix testamentary aforesaid may think proper to give them; which compensation and distribution, she shall make agreeably to the good behavior and situation of the said children. I will, in that case, her deliberation on this distribution be as if the aforesaid property were her own; and if, in the interim, when she would wish to make this distribution of said lands above mentioned, she was to die without fulfilling the distribution above mentioned, him or her of the children who had not received it, will have to take it in money before any division takes place. 8th. Express clause, which is if Julie, my wife, and executrix testamentary, has not sufficient from the revenue of my property, as well real as personal, to make her live entirely independent, after all the clauses and conditions mentioned are fulfilled, to these reasons, I desire, and I will, that she sell so much of my property, real or personal, as she may think proper, and as she may want it, so that she may live in the most easy and most independent manner. 9th. It is expressly understood,...