Abernathie v. Rich

• Decision Date: 23 October 1907
• Citation: 82 N.E. 308,229 Ill. 412
• Parties: ABERNATHIE et al. v. RICH et al.
• Court: Illinois Supreme Court

229 Ill. 412

82 N.E. 308

ABERNATHIE et al.

v.RICH et al.

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Circuit Court, Union County; W. N. Butler, Judge.

Bill by William L. B. Abernathie and others against William C. Rich, Sr., and others. Decree for defendants, and complainants bring error. Reversed and remanded, with directions.

Taylor Dodd and Richard Peery, for plaintiffs in error.

M. C. Crawford, H. F. Bussey, and D. W. Karraker, for defendants in error.

Plaintiffs in error filed their bill against defendants in error, in the circuit court of Union county, to set aside certain deeds executed by James M. Abernathie, now deceased, to lands now in possession of certain of the defendants in error, and for other relief.

From the record it appears that James M. Abernathie died intestate on January 12, 1877, leaving surviving him a widow and children. On September 20, 1876, the deceased was the owner of two farms in Union county, the titles to which are here in dispute. One of the farms contained 248.32 acres, and was worth from $10 to $15 an acre, and the deceased, with his family, resided thereon. The other contained 160 acres, and was worth from $15 to $20 an acre. Of this tract 120 acres was mortgaged by deceased and his wife to one Hugh M. Andrews, prior to the last-mentioned date, to secure the payment of $371.63. This mortgage was afterward foreclosed and the property sold for the debt, interest, and costs, and on February 6, 1882, a master's deed was executed, conveying to William S. Hanners, one of the defendants herein, the property conveyed by said mortgage. On September 20, 1876, James M. Abernathie and his wife executed a deed to all of the above described land, except 40 acres of the larger tract, to James R. Abernathie, a son of James M., and at the same time the father executed a bill of sale of all his personal property to his said son. There seems to have been no consideration for either conveyance. On the same day the instruments were filed for record in the recorder's office of Union county, and afterward, when recorded, were returned to James M. Abernathie, and were found among his papers after his death. Shortly after the father's decease James R. Abernathie, as he says, learned from Hanners for the first time of the execution of the deed and bill of sale, and, upon Hanners' advice, went to the house in which his father had resided and obtained possession of the papers. Upon the death of James M. Abernathie, the father, James R. Abernathie, the son, took out letters of administration upon his estate. In the inventory filed by him he scheduled all the personal property which had been transferred to him under the said bill of sale and had the same appraised; the appraisement amounting to $1,120.32. The inventory also contained the following entry: ‘Real estate was deeded to James R. Abernathie during the lifetime of James M. Abernathie, now deceased.’ The widow's award was fixed at $1,277, and on June 27, 1877, she receipted the administrator for all of the personal property. Claims amounting to several hundred dollars were allowed against the estate.

The bill herein was filed by three of the children and one grandchild of the deceased; the grandchild being a child of his daughter, Louisa J. Carter, whose death followed that of her father. The bill sets out, in substance, the foregoing statements of fact, and alleges that, immediately upon the filing of the receipt of the widow for the personal property, the said Hanners, who was then county clerk of Union county, procured the removal of James R. Abernathie as administrator, and went to the home of the widow and represented to her that, because of the execution of the deed and bill of sale above mentioned, she had no right to either the real estate or personal property; that he was administrator since the removal of James R. Abernathie, and that the personal property must be turned over to him to pay the debts of the estate; that he took possession of and sold the same for $900, and afterwards, on June 1, 1878, used said money with which to purchase the land at said foreclosure sale, alleges that on the day of said sale the said Hanners and one Jesse Ware, who was the solicitor for the complainant in the foreclosure proceeding, procured the intoxication of said James R. Abernathie, and while he was so intoxicated they secured his signature to a quitclaim deed to said Hanners for the said 160-acre tract; that on June 5, 1878, said Andrews, Ware, and Hanners went to a harvest field where James R. Abernathie was at work, and by false representations Hanners and Andrews induced him to sign a paper which afterward proved to be a deed to N. B. Collins, Samuel Springs, and Charles Crowell to 208.32 acres of the homestead tract; that said parties then by false representations induced the wife of James R. Abernathie to sign said paper, and that the deed was without consideration; that between the date of the execution of said deed and January 22, 1879, said Hanners, while he was the duly appointed and qualified administrator of said estate, procured separate deeds from each of the last mentioned grantees to himself for all of said lands; that said Hanners was appointed administrator de bonis non of said estate on July 29, 1878, and as such, on July 7, 1879, filed a petition asking an order to sell the remaining 40 acres of said homestead tract to pay debts; that a decree of sale was entered without in any manner disposing of the dower of the widow or the homestead of the widow and minor children, and that said Ware acted as guardian ad litem for said minors; that in his petition for sale said Hanners swore that said 40-acre tract was worth $200, and that on May 15, 1880, he sold the same to his deputy, Joseph H. Sampson, for $45, and on March 14, 1881, said Sampson conveyed said tract of land to Hanners for $45; that on the same day Hanners conveyed all of said 248.32 acres to T. J. Murphy for $850, and on December 9, 1882, Hanners conveyed the same tract to Ware; that on June 1, 1883, T. J. and G. W. Murphy conveyed said tract to Ware, and on June 4, 1883, Ware conveyed an undivided one-half interest in the same to David W. Karraker, and on April 14, 1883, Karraker and wife and Ware conveyed all of said tract to William C. Rich, Sr.; that on January 17, 1883, Hanners conveyed the 160-acre tract to one Elijah Hartline, who afterward, on February 20, 1883, conveyed...