Anderson v. Stewart

• Decision Date: 06 December 1917
• Docket Number: No. 11458.,11458.
• Citation: 117 N.E. 743,281 Ill. 69
• Parties: ANDERSON et al. v. STEWART et al.
• Court: Illinois Supreme Court

281 Ill. 69

117 N.E. 743

ANDERSON et al.

v.STEWART et al.

No. 11458.

Supreme Court of Illinois.

Oct. 23, 1917.

Rehearing Denied Dec. 6, 1917.

Appeal from Circuit Court, Edgar County; John H. Marshall, Judge.

Bill by Nelle Anderson and Marsalene Fern Stewart, a minor, by her guardian, Nelle Anderson, against Newton Stewart, edgar Vernon Stewart, Wilber Hanna, Dell Wallace, Riley Van Pelt, and Nelle Lawson. Newton Stewart, an incompetent, by guardian ad litem filed a cross-bill. From a decree dismissing plaintiffs' bill and sustaining Newton Stewart's cross-bill, plaintiffs appeal. Reversed and remanded, with directions.

Wilber H. Hickman, of Paris, for appellants.

F. C. Van Sellar and Frank T. O'Hair, guardian ad litem, both of Paris, for appellees.

DUNCAN, J.

Nelle Anderson and Marsalene Fern Stewart, a minor, by her guardian, Nelle Anderson, filed their amended bill on January 30, 1917, in the circuit court of Edgar county, charging that Edgar Stewart died intestate seised in fee simple of the west half of the northwest quarter of section 18, town 14 north, range 12 west, and the east half of the northeast quarter of section 13, town 14 north, range 13 west of the second principal meridian, in said county; that he left surviving him Nelle Anderson, his widow, and Marsalene Fern Stewart and Edgar Vernon Stewart as his only children and heirs at law, the latter being the son by a former wife of the deceased: that since the death of Edgar Stewart, February 22, 1912, Newton Stewart had been in possession of said premises and had collected all the rents therefrom and had not accounted for the same, and that the rental value thereof was $10 per acre. The prayer of the bill was for partition and assignment of dower and for an accounting for the rents and profits. Newton Stewart, Edgar Vernon Stewart, Wilber Hanna, Dell Wallace, Riley Van Pelt, and Nelle Lawson, the latter four being tenants in possession of the premises, were made parties defendant to the bill. Appellee Edgar Vernon Stewart, by his guardian ad litem, answered, admitting the allegations of the bill in toto. Appellee Newton Stewart, being mentally incompetent, answered by guardian ad litem, denying that Edgar Stewart died seised of said land and denying that his legal heirs had any interest therein, admitting the collection of the rents, averring that Newton Stewart is the owner of the land, and admitting that the heirs of Edgar Stewart are as set forth in the amended bill. Newton Stewart also filed a cross-bill by his said guardian ad litem, charging, in substance, that the premises were transferred and conveyed to Edgar Stewart, during his lifetime, through a mistake of the scrivener in preparing the deed, it being the intention of Newton Stewart, at the time he made the deed, to only convey to Edgar Stewart the other lands described in said deed. The widow and heirs of Edgar Stewart were made parties defendant to the cross-bill, with a prayer for the reformation of the deed and cancellation of the same as a cloud upon his title to the said lands described in the original amended bill. Appellants, Nelle Anderson and Marsalene Fern Stewart, and appellee Edgar Vernon Stewart, answered the cross-bill, denying the allegations therein and averring that it was the intention of the grantor, Newton Stewart, to convey the lands described in the amended bill. Replications were filed to all the answers, and afterwards the cross-bill was amended so as to include the further allegation that the execution of the deed of Newton Stewart to Edgar Stewart, as aforesaid, as to said land was the result of a mutual mistake of both grantor and grantee therein, etc. Evidence was heard on the issues formed, and the court found the several issues in favor of appellee Newton Stewart and against the appellants and Edgar Vernon Stewart. The court by its decree dismissed the amended bill for want of equity and reformed the deed of Newton Stewart in accordance with the prayer of the cross-bill by striking out the description therein of the land described in the original amended bill, and appellants have perfected their appeal to this court.

The evidence in the record is not sufficiently clear, satisfactory, and convincing to sustain the decree of the court. The undisputed facts in the record are that Newton Stewart is the father of Egbert, albert, William, Walter, and Edgar Stewart, his sons, and of Florence Graham and May Brown, his daughters; that the mother of said children, Armina Stewart, and wife of Newton Stewart, in her lifetime was the owner in fee of lot 5 of the county clerk's subdivision of the southeast quarter of section 30 (fractional) east of the boundary line, and of lot 1 of the county clerk's subdivision of the east half of the northeast quarter of section 31 (fractional) east of the boundary line, in township 13 north, range 11 west, which land is known and referred to in this suit as ‘mother's land.’ Egbert Stewart at the time of his death owned the west half of the northwest quarter of section 18, township 14 north, range 12 west, and the east half of the northeast quarter of section 13, township 14 north, range 13 west of the second principal meridian, in said county, being the land described in the amended bill and containing between 150 and 160 acres. Armina Stewart, the mother, died intestate one day before Egbert died, and her seven children, includingEgbert, became owners in fee, as tenants in common, by descent, of the lands which she owned in her lifetime, subject to the dower rights of her husband, Newton Stewart. Shortly after her death Egbert died, leaving a will, by which he devised his land to his mother, brothers, and sisters in the following language:

‘Second-I will and bequeath to my mother, Armina Stewart, all of my property, both real and personal, to have and to use during her life, and at her death I want it all to go to my brothers and sisters in fee simple.

‘Third-I desire that my personal property and the rents of the real estate shall be used in the payment of my debts, and that the real estate may be saved for my mother during her life and then go to my brothers and sisters as above set forth. The real estate is to be kept in a body and is not to be sold until all of my debts are paid.’

The will nominated Edgar Stewart and Samuel Graham, brother-in-law of the testator, as executors. After the death of Egbert, his brother Edgar, on January 27, 1897, conveyed and warranted to his father, Newton Stewart, the following described real estate, to wit:

‘All his undivided interest in lot No. five (5) of the county clerk's subdivision of the southeast quarter of section thirty (30) fractional, east of the boundary line; also lot No. one (1) in the county clerk's subdivision of the east half of the northeast quarter of section thirty-one (31) fractional, east of the boundary line; also the west half of the northwest quarter of section eighteen (18), in township fourteen (14) north, range twelve (12) west, and the east half of the northeast quarter of section thirteen (13), in township fourteen (14) north, range thirteen (13) west situated in the county of Edgar, in the state of Illinois.’

Just after the release and waiver clause and just before the line containing the date in the deed is a clause containing this recital:

‘It is the intention of this deed to convey all the interest of the grantor to the said lands, subject, however, to such indebtedness of grantor as has accrued against the estate of Egbert Stewart, deceased.’

Egbert Stewart's estate was settled up after said deed to Newton Stewart was made and all debts were paid, but the estate was found to be insolvent, lacking $68.27, including the proceeds of the sale of the real estate, of equaling the amount of all the debts, as shown by the final report of Samuel Graham, executor. The executor presumably paid all of this excess. Edgar Stewart had previously resigned as executor, and the evidence discloses that he became insane some time before he died. Samuel Graham, as executor, on August 2, 1897, sold the land owned by Egbert in his lifetime and that is now in dispute, to pay the debts of the testator, and Newton Stewart became the purchaser and obtained an executor's deed therefor for the price of $8,990.40.

On February 4, 1898, Newton Stewart made a deed to Edgar Stewart, his son, by which he conveyed and warranted the following described real estate, to wit:

‘All his undivided interest in lot No. five (5) in the county clerk's subdivision of the southeast quarter of section thirty (30) fractional, east of the boundary line; also lot No. one (1) in the county clerk's subdivision of the east half of northeast quarter of section thirty-one (31) fractional, east of the boundary line, all in township 13 north, range 11 west; also the west half of the northwest quarter section eighteen (18), township fourteen (14) north, range twelve (12) west; also the east one-half of the northeast quarter section thirteen, township fourteen (14) north, range thirteen west. It being the intention of the grantor to convey by this deed the land conveyed to him by Edgar Stewart in a deed made and dated January 27, 1897, situated in the county of Edgar, in the state of Illinois,’ e...